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Bhim Sain And Anr vs State Of Punjab And Anr on 14 December, 2017

CRM-M-32970-2017(OM) -1 –

232 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRM-M-32970-2017(OM)
Date of decision: 14.12.2017
Bhim Sain and another …Petitioners
Versus
State of Punjab and another …Respondents

CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. J.K.Singla, Advocate
for the petitioners.

Ms. Rajni Gupta, Sr. DAG, Punjab
for respondent No.1.

Mr. Anupam Singla, Advocate
for respondent No.2.

*****
ARVIND SINGH SANGWAN, J. (ORAL)

Prayer in this petition is for quashing of FIR No.03, dated

17.01.2013, under Sections 406 of IPC and Section 7 of Essential

Commodities Act, registered at Police Station Sadar Rampura, District

Bathinda (Annexure P-1) as well as the subsequent proceedings pending in

pursuance thereof including the order dated 05.01.2015 (Annexure P-10)

and Annexure P-11 charge sheet, vide which, charges were framed against

the petitioners.

On 07.09.2017, the following order was passed by this Court:-

” Learned counsel for the petitioners submits that
petitioners have initially filed CRM-M-13951-2014 in which
following orders was passed:

“After arguing for some time, counsel for
the petitioners prays for withdrawing the petition
with liberty to the petitioners to take all the pleas
available to them at the appropriate stage.

Dismissed as withdrawn with liberty
aforementioned.”

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Learned counsel for the petitioners further
submits that at that stage case was still at the investigation
stage and later on petitioners came to know that respondent
No. 2-complainant vide its letter dated 15.10.2013 (Annexure
P-8) has recommended the cancellation of the FIR on the
pretext that petitioners had delivered the whole rice due
against the short paddy and has also settled the milling
account with the Corporation.

Learned counsel for the petitioners further
submits that during the cross-examination, PW-1 Sawinder
Singh, Inspector, Punjab Agro Food Grains Corporations
Mansa, PW-3 Rupinder Singh, Inspector, Punjab Agro Food
Grains Corporation, Bhikhi and PW-4, Balwinder Pal Singh,
Senior District Manager Punjab Agro, Sri Muktsar Sahib have
admitted that the aforesaid letter was issued by respondent No.
2-complainant for cancellation of the FIR. He further submits
that since the petitioners have withdrawn the aforesaid
petition on 24.4.2014 with liberty to take all pleas available at
appropriate stage, present petition seeking quashing of the
FIR No. 03 dated 17.1.2013 under Section 406 IPC and
Section 7 of the Essential Commodities Act, registered at
Police Station Sadar Rampura, District Bathinda (Annexure
P-1) along with subsequent proceedings has been filed in view
of the statements made by the aforesaid witnesses, wherein,
they have admitted that there was no shortage of paddy on the
part of the petitioners and cancellation of the FIR was
recommended.

Notice of motion for 26.9.2017.

Process dasti as well.

Representative of respondent No. 2-Punjab Agro
Food Grains Corporation Limited is directed to file a specific
affidavit regarding issuance of letter dated 15.10.2013 in
which a request was made to Senior Superintendent of Police,
Bathinda for cancellation of the FIR.”

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Thereafter, respondent No.2/complainant – Punjab Agro Food

Grains Corporation Limited filed an affidavit dated 25.09.2017 of District

Manager, wherein, it was stated as under:-

” That thereafter, the petitioners had given Bank
Guarantee No. 01/2013-2014 dated 11.04.2013 and Bank
Gurantee No.6/2013-14 dated 17.07.2013 for an amount of
Rs.40 lacs on the ground that in case they fail to deliver the
resultant rice in lieu of shortage of Paddy, then in that
eventuality respondent No.2 can encash the Bank Gurantees to
recover the cost paddy found short during Physical
Verification. However, the petitioners had completed the
milling and had also delivered the resultant rice in lieu of
shortage of Paddy also. As a result thereof, respondent No.2
vide letter Annexure P-7 recommended the allotment of the
aforesaid Mill for Crop Year 2013-14 and has also
recommended cancellation of FIR vide letter dated 15.10.2013
(Annexure P-8).”

Reply by way of affidavit of Deputy Superintendent of Police,

Sub Division Rampura Phul, District Bathinda on behalf of respondent

No.1-State has also been filed and as per this reply, it is submitted that after

investigation of the case, the challan was submitted before the trial Court

and with regard to recommendation of respondent No.2, it was simply stated

in para No.1 of this affidavit that respondent No.2 has no power to ask for

cancellation of the FIR.

Learned State counsel, on instructions from ASI Manvinder

Singh has also stated that the case, at the stage, is for recording of the

prosecution evidence and some witnesses have already been examined.

Learned counsel for the petitioners submits that the petitioner is

a proprietor of M/s Shri Tej Ram Rice Mill, Rampura and was authorized by

respondent No.2-Complainant,vide agreement dated 10.12.2012 for custom

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milling of paddy for the year 2012-13. It is further submitted that petitioner

No.1 for the General Power of Attorney of the Mill is to perform day-to-day

functions and the agreement dated 10.12.2012 was executed between

petitioner No.1 and respondent No.2. It is further submitted that as per this

agreement, total 39807 bags of paddy were stored on 19.12.2012 and

thereafter, without any intimation when a check was conducted by the staff

of respondent No.2, a physical verification report dated 19.12.2012 was

prepared, in which, it was found that 7234 bags of paddy was less in the

premises of the Mill and therefore, it was recommended that the FIR be got

registered against the petitioners.

Counsel for the petitioners further submits that the physical

verification report was done at the time, when the petitioner was not there at

the spot and there was no shortage of the paddy as it was under the milling

process and the petitioner was required to hand over the rice after milling up

to 31 March, 2013 as per the agreement dated 10.12.2012, and still four

months time was there for handing over the resultant rice.

Counsel for the petitioners further submitted that as per the

agreement, the petitioners had completed the milling work for the Crop year

2012-2013 and has also furnished a bank guarantee. He further submits that

after registration of the FIR, during the period when the agreement was still

in subsistence, on the asking of the respondent-complainant, the petitioner

has given additional bank guarantee that in case, he fails to comply with the

terms and conditions of milling work, the same can be adjusted towards the

amount of bank guarantee. However, prior to the date, he has delivered the

resultant rice to FCI in the account of respondent No.2.

Learned counsel for the petitioner has relied upon the

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certificate (Annexure P-7) issued by Punjab Agro Foodgrains Corporation

Limited, Bathinda certifying that since the M/s Tej Ram Rice Mill, Rampura

has completed the milling work of the crop year 2012-13 and no rice is

pending pertaining to the crop Year 2012-13, the Mill is eligible for

allotment of crop Year KMS 2013-14. He further relied upon the letter

dated 15.10.2013 submitted by respondent No.2 to Senior Superintendent of

Police, District Bathinda for cancellation of the FIR, in view of the fact that

the FIR was got registered against the Mill for shortage of Paddy for the

crop Year 2012-13 and since the party has delivered the whole rice against

the shortage of paddy and has settled the milling account with the

Corporation, the FIR be cancelled.

In the light of aforesaid facts, vide order dated 07.09.2017, the

respondent No.2 was directed to file a specific affidavit as noticed above.

Counsel for the petitioners has further submitted that the

offence under Section 7 of the Essential Commodities Act is not made out

against the petitioners and the prosecution of the petitioners under Section

406/409 of IPC along with Section 7 of the Act is otherwise not

maintainable as the same cannot be tried by the Special Court. Learned

counsel for the petitioner has relied upon 2003 (1) RCR (Criminal) 788

tilted as “S.C. Sharma and antoher Vs. State of Haryana and others”

wherein this court has held as under:-

“9. Under section 260 cr.p.c., it is provided that a court may
try an offence in a summary way where the offence is not
punishable with death, imprisonment for life or
imprisonment for a term exceeding two years, meaning
thereby that the offences punishable upto two years may
be tried in a summary manner. Besides that certain
offences have been specifically mentioned in section 260

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cr.p.c., which could also be tried in a summary manner.
So far as the offence under Section 161 IPC is
concerned, it is punishable with imprisonment for three
years, whereas the offence under Section 420 IPC is
punishable with imprisonment for 7 years. However, the
offence under Section 427 IPC is punishable with
imprisonment for two years. Thus, neither the offence
under Section 161 IPC nor the offence under Section
420 IPC could be tried in a summary manner, whereas
the offence under Section 427 IPC could be tried in a
summary manner. Offences under Sections 34 and 149
IPC are not substantive offences. With regard to the
offence under Section 120-B IPC, it also bears the same
punishment which is the punishment provided for the
main offence. In this view of the matter, only the offence
under Section 427 IPC could be tried in a summary
manner. So far as the present petitioners are concerned,
there is absolutely nothing on record to show that they
had committed offences under Section 427 IPC,
inasmuch as, there is absolutely no material on record
to show that the accused petitioners had committed any
mischief which was punishable under Section 427 IPC.
So far as other offences are concerned, as referred to
above, under section 12-aa(2) of the essential
commodities act, 1955, as applicable at the relevant
time, the Special Court was competent to try other
offences alongwith an offence under the essential
commodities act only if those offences were triable in a
summary way. In this view of the matter, the substantive
offences under Sections 420 and 161 IPC could not be
tried by the Special Court alongwith the offence under
Section 7 of the essential commodities act.

10. From the perusal of the above, in my opinion, it would
be clear that criminal complaint and all subsequent
proceedings taken thereon against the accused

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petitioners, including the summoning orders, are abuse
of the process of law and are liable to be quashed in
both the cases.

11. For the reasons recorded above, both the petitions are
allowed and the criminal complaint, summoning order
and all subsequent proceedings taken thereon against
the petitioners are quashed. Petitions allowed.”

A similar view has been taken by this Court in
2011 (1) RCR (Criminal) 102, Rakesh Kumar Vs. State
of Haryana and by the Division Bench of Andra
Pradesh in 2004 (3) RCR (Criminal) 81.”

After hearing learned counsel for the parties, I find merit in the

petition. Since the FIR was got registered during the subsistence of the

agreement dated 10.12.2012 vide which the petitioner was granted time to

complete the agreement upto 31.03.2013, it is not disputed by respondent

No.2 as per No Objection Certificate (Annexure P-7), vide which, the Mill

was granted permission for allotment of next crop year 2013-14 considering

the performance of the Mill for the year 2012-13 as well as the letter dated

15.10.2013 (Annexure P-8) vide which respondent No.2 itself has made a

request for the cancellation of the FIR, as the petitioners have delivered the

whole rice. Respondent No.2, in the affidavit dated 25.09.2017, has again

reiterated that the petitioners have given additional bank gurantee also for

ensuring that in case, the Mill fails to deliver the resultant rice, respondent

No.2 can encash the bank gurantee to recover the cost of paddy. However,

it is a matter of fact that the petitioner has delivered the resultant rice well

within the period which shows that there was no mens-rea on the part of the

petitioner to commit any offence and therefore, under Section 406/420 IPC,

face the FIR is not made out. In the light of the judgment relied upon by the

petitioners in SC Sharma’s case (supra), the joint prosecution of the

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petitioners under Section 7 of the Essential Commodities Act with Section

406/409 of IPC is not sustainable.

For the reasons stated above, from a bare perusal of the FIR and

the affidavit submitted by respondent No.2, no offence is made out under

Section 406/409 of IPC or under Section 7 of the Essential Commodities

Act.

However, since the FIR pertains to the year 2013 and the some

prosecution witnesses have already been recorded, the petitioner is directed

to deposit a costs of Rs.10,000/- with the District Legal Services Authority,

Bathinda.

Accordingly, the present petition is allowed. FIR No.03, dated

17.01.3013, under Sections 406 of IPC and Section 7 of Essential

Commodities Act, registered at Police Station Sadar Rampura, District

Bathinda along with all the consequential proceedings, arising therefrom

including the order dated 05.01.2015, framing charges under Section 409

and Section 7 of Essential Commodities Act, are ordered to be quashed qua

the petitioners.

(ARVIND SINGH SANGWAN)
JUDGE
14.12.2017
Hemlata

Whether speaking/reasoned Yes / No
Whether reportable Yes / No

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