IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present : The Hon’ble Justice Shivakant Prasad
CRR 607 of 2018
With
CRAN 1510 of 2018
Bipin Kumar Vohra Ors.
-Vs.–
The State of West Bengal Ors.
For the Petitioner : Mr. S.N. Mookherjee
Mr. Ayan Bhattacharya
Mr. AnandKeshari
Mr. S.K. Chakraborty
Ms. Shivangi Thard
For the O.P. No. 2 : Mr. Debasish Roy
Mr. Sanjoy Banerjee
Mr. Dipak Dey
Mr. DipanjanDey
For the State : Mr. Sudip Ghosh
Mr. Apurba Kr. Dutta
Mr. Bitasok Banerjee
Heard On : 20.06.2019
C.A.V. On : 20.06.2019
Judgment On : 12.07.2019
SHIVAKANT PRASAD, J.
The petitioners have assailed the proceedings in G.R. Case No. 193 of 2018
in connection with New Township Police Station (NTS), Durgapur, Case No. 16
dated 10th February, 2018 under Sections 420/406 of the Indian Penal Code,
1860 pending before the Court of the learned Additional Chief Judicial
Magistrate at Durgapur inter alia on the grounds that the allegations leveled in
the FIR do not make out any offence against the petitioners as evident from the
recital of the FIR that the instant proceeding is manifestly attended with
malafide and do not make out any cause of action giving rise to initiation of an
investigation in order to harass and humiliate the petitioners for oblique
purpose.
Mr. S.N. Mookherjee learned counsel for the petitioners at the outset
submitted that the instant prosecution has been engineered by the Opposite
Party No. 2 to overreach the orders of an ad-interim order passed by the learned
District Judge, South 24 Parganas at Alipore in Misc. Case No. 783 of 2017
whereby and whereunder MSTC Ltd., its men and agents were restrained from
giving effect to the letters issued by MSTC Ltd. on 31.11.2017 and 12.12.2017.
It is further submitted that allegations leveled in the impugned First
Information Report narrating the grievances of the Opposite Party No. 2 is
predominantly civil in nature which has no criminal outfit and the instant
prosecution has been launched by the Opposite Party No. 2 in clear breach of
the terms of settlement arrived at by and between the parties on 19.07.2014 in
order to expose the petitioners to chilling possibility of arrest, harassment and
prosecution.
For proper appreciation of the instant case, certain facts are germane for
consideration in this revision:
SPS is a reputed company involved in the business of Iron and Steel Goods
including Sponge Iron, Pig Iron, TMT Bar. The annual turnover of SPS was not
less than Rs. 546 Crores. In order to enhance the business potential of SPS and
at the invitation of MSTC, SPS and MSTC had entered into an agreement on 2nd
March, 2010 whereby MSTC agreed to facilitate purchase goods from
international and indigenous sources through the agreement. The agreement
further provided that the goods so purchased through MSTC would be stored in
the stockyard of SPS under the custody of a nominee of MSTC. The agreement
further provided that SPS would be the owner of the goods stored in the
warehouse. However, such goods were to remain pledged by SPS in favor of
MSTC till physical delivery of such goods to SPS by the custodian thereof. The
physical delivery of the goods under the said agreement was to be effected
subject to a tripartite agreement to be entered into by and between SPS, MSTC
and one M/s. Transafe Services Ltd., custodian of the goods, nominated by
MSTC.
Accordingly, a tripartite agreement was entered into amongst SPS Steels
Rolling Mills Ltd., MSTC and M/s. Transafe Services Ltd. on 2nd March, 2010.
Upto 30th September, 2013, there was no grievance of either of the parties
regarding arrangement and lifting of goods. Substantial quantity of pledged
materials had been lifted by SPS after making payments of the value thereof to
MSTC.
On 30th September, 2013 materials valued at approximately Rs.266.17
crores remained pledged with MSTC, in accordance with the principal
agreement, M/s. Transafe Services Ltd. was replaced by another company viz.
M/s. Ferro Scrap Nigam Ltd. (FSNL) as nominated and desired by MSTC. So
another fresh tripartite agreement was entered into by and between MSTC, SPS
and FSNL on 24th May, 2013.
In the meantime, on account of volatile condition in the international
market, SPS suffered huge loss. SPS requested MSTC to pay off its dues by way
of installments but MSTC rejected such proposal of SPS and dispute arose
between MSTC and SPS which compelled SPS to refer the dispute to arbitration
by filing an application under Section 9 of the Arbitration and Conciliation Act,
1996 before the Court of the learned District Judge, South 24 Praganas at
Alipore which was registered as Title Suit No. 51 of 2013 (SPS Steels Rolling
Mills Ltd. Vs. MSTC Ltd.) wherein by an order dated 10.06.2013, the learned
District Judge directed the parties to maintain status quo in respect of the said
goods. Subsequently, the said application was withdrawn by SPS in view of the
arbitration agreement as contained in Clause 21.1 of the agreement dated 2nd
March, 2010 and arbitral proceedings commenced before the Hon’ble Justice
Aloke Chakraborty (Retd.), Sole Arbitrator which disputes were settled during the
pendency of the proceedings.
Mr. Mookherjee learned counsel for the petitioners contended that the
charge under Section 420 of the I.P.C. is not attracted as “cheating and
dishonestly inducing delivery of property” which are the ingredients for bringing
home charge under Section 420 I.P.C. as defined. ‘Mens rea’ to cheat from the
very inception is the most vital ingredient which differentiates cheating
simpliciter from breach of agreement because mere failure of a person to keep
promise subsequently cannot be construed as culpable intention right at the
beginning. A distinction between mere breach of contract and the offence of
cheating is the intention of the accused at the time of inducement. Mere breach
of contract cannot give rise to criminal prosecution for cheating unless
fraudulent and dishonest intention is shown at the beginning of the transaction.
Mere use of the expressions like ‘cheating’, ‘deception’, and ‘inducement’ is of no
consequence.
Accordingly, it is submitted that, the story portrayed by the opposite party
no. 2 in the complaint at the most project non-fulfillment of contractual
obligation on the part of SPS for which the petitioners cannot be entangled.
As regards the charge under Section 406 of I.P.C, it is submitted that the
offence is not attracted in the facts and circumstances of the instant case
because provision of punishment for criminal breach of trust as defined under
Section 405 of the I.P.C. is again misplaced in view of the allegations made in the
FIR and the agreements as the petitioners had not been entrusted with any
property of the opposite party no. 2 which could have been misappropriated by
them in absence of an element of ‘entrustment’ and ‘misappropriation’ thereof
and as such, no offence of criminal breach of trust can at all be said to have
been committed.
It is also argued that the opposite party no. 2 has roped the petitioners in
a criminal case without their specific role or participation in the alleged offence
with the sole purpose of settling the dispute with SPS. The petitioners do not
have any personal role in the allegations and no specific allegation with regard to
their role has been made out in the FIR. In this regard, Mr. Mookherjee argued
that the concept of vicarious liability is unknown to criminal law and relied upon
the observations in the case of Asoke Basak vs. State Of Maharashtra Ors.
2010 (10) SCC 660 on the scope and ambit of the jurisdiction of the High Court
under Section 482 of the Code to the effect that “It needs little emphasis that
although the jurisdiction of the High Court under the said provision is very wide
but it is not unbridled. The High Court is required to exercise its inherent powers
under Section 482 of the Code sparingly, carefully and cautiously, ex debito
justitiae to do real and substantial justice and to prevent abuse of the process of
court. One of the situations when the High Court would be justified in invoking its
powers is where the allegations in the first information report or the complaint, as
the case may be, taken at their face value and accepted in their entirety do not
constitute the offence alleged. (See: R.P. Kapur Vs. State of Punjab16 and
RupanDeol Bajaj Anr. Vs. Kanwar Pal Singh Gill Anr.17.) AIR 1960 SC
866 (1995) 6 SCC 194.”
Section 405, IPC defines “criminal breach of trust” to mean:
“405. Criminal breach of trust.–Whoever, being in any manner
entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which
such trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust,
or wilfully suffers any other person so to do, commits “criminal
breach of trust”.
Explanation 1.–A person, being an employer of an establishment
whether exempted under section 17of the Employees’ Provident
Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or
not who deducts the employee’s contribution from the wages
payable to the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being in force,
shall be deemed to have been entrusted with the amount of the
contribution so deducted by him and if he makes default in the
payment of such contribution.
Mr. Mookherjee, by inviting my attention to the petition of complaint and
the formal FIR registered thereupon, argues that the Company has not been
made a party and therefore the allegations are restricted to the Directors as the
allegation made against the petitioners as the Managing Director and Directors of
the company are in their personal capacity which really appears to be vague.He
relies upon the observations made in following paragraphs of decision in Sharad
Kumar Sanghi Vs. Sangita Rane (2015) 12 SCC 781
“2. Bereft of unnecessary details, the facts which are necessary
to be stated are that the appellant who is the Managing Director
of M/s. Sanghi Brothers (Indore) Ltd., Indore which is a
registered company duly incorporated and registered under
the Companies Act, 1956 and is engaged in the business of
automobile sale, finance and shipping, etc. having branches at
various places including the city of Bhopal. The respondent
complainant obtained a quotation from the Bhopal branch for
purchase of a TATA diesel vehicle model SFC 709/38 LB in the
month of April 1998 and the vehicle was delivered to the
respondent on 1-5-1998 on payment of the price deposited at
Bhopal vide bank draft issued from State Bank of India, Sarni,
Betul. The respondent faced difficulty with the vehicle and
eventually he came to know in the month of August 2000 that
there was a discrepancy in the engine number of the invoice
issued to him. On further enquiry, he found that there is a letter
issued by Tata Engineering and Locomotive Company (Telco) on
7-11-2000 that in the course of transit from the company to
Bhopal, the said vehicle had met with an accident as a result of
which the engine was replaced by another engine. Coming to
know of this, the respondent filed a complaint under Section 200
Cr.P.C. alleging that M/s. Sanghi Brothers (Indore) Ltd., Indore
being represented by the Managing Director, Sharad Kumar
Sanghi, had suppressed the information and deliberately
cheated the respondent.
5. Being aggrieved by the aforesaid order, he preferred an
application under Section 482 Cr.P.C. before the High Court. It
was contended before the High Court that the learned Magistrate
had no territorial jurisdiction; that there was no deceit by the
respondent; that the company was not made an accused in the
complaint and, therefore, the complaint was not maintainable;
and that there was no mens rea. The High Court, as is manifest
from the order impugned repelled all the submissions and
dismissed the application for quashment.
9. The allegations which find place against the Managing
Director in his personal capacity seem to be absolutely vague.
When a complainant intends to rope in a Managing Director or
any officer of a company, it is essential to make requisite
allegation to constitute the vicarious liability. In Maksud Saiyed
v. State of Gujarat Maksud Saiyed v. State of Gujarat, 2008 5
SCC 668, it has been held, thus: (SCC p. 674, para 13)
11. In the case at hand as the complainant’s initial statement
would reflect, the allegations are against the Company, the
Company has not been made a party and, therefore, the
allegations are restricted to the Managing Director. As we have
noted earlier, allegations are vague and in fact, principally the
allegations are against the Company. There is no specific
allegation against the Managing Director. When a company has
not been arrayed as a party, no proceeding can be initiated
against it even where vicarious liability is fastened under certain
statutes. It has been so held by a three-Judge Bench in Aneeta
Hada v. Godfather Travels and Tours (P) Ltd. in the context of
the Negotiable Instruments Act, 1881.
13. When the company has not been arraigned as an accused,
such an order could not have been passed. We have said so for
the sake of completeness. In the ultimate analysis, we are of the
considered opinion that the High Court should have been well
advised to quash the criminal proceedings initiated against the
appellant and that having not been done, the order is sensitively
vulnerable and accordingly we set aside the same and quash the
criminal proceedings initiated by the respondent against the
appellant.”
To fortify his arguments, Mr. Mookherjee further relied upon the decision
in case of Sunil Bharti Mittal vs. CBI 2015 (4) SCC 609 with the submission
that there are circumstances when a director or a person in charge of a company
can also be prosecuted when the Company is an accused. But in the given facts
of the case, the Company has not been arrayed as an accused. It is settled law
that a corporate entity is an artificial person which acts through its officers,
directors, managing director, chairman etc. If such a company commits an
offence involving mens rea, it would normally be the intent and action of that
individual who would act on behalf of the company. It would be more so, when
the criminal act is that of conspiracy. However, at the same time, it is the
cardinal principle of criminal jurisprudence that there is no vicarious liability
unless the statute specifically provides so.
It is argued that the proceeding under challenge was initiated on the basis
of a complaint against the petitioners showing them as Managing Director and
Directors of M/s. SPS Steel Rolling Mills Ltd. for unlawful removal,
misappropriation and criminal breach of trust in respect of 19260.42MT of pig
iron amongst other items but without arraying the Company as an accused.
Mr. Mookherjee has relied on a decision in case of M/s. Thermax Ltd.
Ors. vs. K.M.Johny Ors. (2011) 13 SCC 412 to argue that there are certain
situations where the wrong may be predominantly a civil wrong and may or may
not amount to criminal offence and that in the instant case there is no criminal
intention which can be gathered on perusal of the FIR. Because case in hand is
essentially and predominantly civil in nature and it would be abuse of process of
court to allow any further proceeding before a criminal court.
It has been observed in the following paragraphs by the Hon’ble Apex Court
in case of Madhavrao Jiwaji Rao Scindia Ors. vs. Sambhajirao
Chandrojirao Ange Ors. (1988) 1 SCC 692, thus-
“24 this Court, after pointing out the grounds on which the
criminal proceedings be quashed under Section 482 of the Code
at preliminary stage by the High Court highlighted that a case of
breach of trust is both a civil wrong and a criminal offence. While
elaborating the same, this Court further held that there would be
certain situations where it would predominantly be a civil wrong
and may or may not amount to criminal offence. Based on the
materials in that case, the Court concluded that the case is one
of that type where, if at all, the facts may constitute a civil wrong
and the ingredients of the criminal offences are wanting.
42) We have already noted that the offence alleged in the
criminal complaint filed by respondent No.1 is under Sections
405 and 420 IPC whereunder no specific liability is imposed on
the officers of the company, if the alleged offence is by the
Company. In the absence of specific details about the same, no
person other than appellant No.1-Company can be prosecuted
under the alleged complaint.”
(See :Ajai Kumar Jain Ors Vs The State Of West Bengal Anr reported in
2016 SCC Online CAL 903).
Per contra: Mr. Debasish Roy, learned Counsel for Opposite party no. 2 and
Mr Sudip Ghose, learned Counsel for the State Opposite party no. 1 have
contended that the ingredients of offences under section 420/406 of IPC are not
totally absent in the FIR. Whether or not allegations in the complaint are
otherwise correct has to be decided on the basis of the evidence to be led at the
trial in the complaint case but simply because of the fact that there is a remedy
provided for breach of contract that does not by itself cloth the Court to come to a
conclusion that civil remedy is the only remedy available to the petitioners. It is
submitted that both civil as well as the criminal law remedy can be pursued in
diverse situations as they are not mutually exclusive but coextensive and
essentially differ in their content and consequence. The object of criminal law is
to punish an offender who commits an offence against a person, property or the
State for which the accused, on proof of the offence, is deprived of his liberty and
in some cases even his life. This does not, however, affect civil remedies at all for
suing the wrong doer in cases like arson, accidents etc. It is anathema to
suppose that when a civil remedy is available, a criminal prosecution is
completely barred and relied on the following paragraphs of decision in Trisuns
Chemical Industry vs. Rajesh Agarwal And Others AIR 1999SC 3499:
“8. In the last referred case this court also pointed out that
merely because an act has a civil profile is not sufficient to
denude it of its criminal outfit. We quote the following
observations: It may be that the facts narrated in the present
complaint would as well reveal a commercial transaction or
money transaction. But that is hardly a reason for holding
that the offence of cheating would elude from such a
transaction. In fact, many a cheatings were committed in the
course of commercial and also money transactions.
9. We are unable to appreciate the reasoning that the
provision incorporated in the agreement for referring the
disputes to arbitration is an effective substitute for a criminal
prosecution when the disputed act is an offence. Arbitration is
a remedy for affording reliefs to the party affected by breach
of the agreement but the arbitrator cannot conduct a trial of
any act which amounted to an offence albeit the same act may
be connected with the discharge of any function under the
agreement. Hence, those are not good reasons for the High
Court to axe down the complaint at the threshold itself. The
investigating agency should have had the freedom to go into
the whole gamut of the allegations and to reach a conclusion
of its own. Pre-emption of such investigation would be justified
only in very extreme cases as indicated in State of Haryana
vs. Bhajaj Lal (Supra).”
On behalf of the opposite party nos. 1 2 reliance is placed on the
following paragraphs of the decision in M/s. Medchl Chemicals Pharma P
Ltd. vs. M/s. Biological E. Ltd. Ors. AIR 2000 SC 1869 to argue that the
power of the High Court to invoke inherent jurisdiction u/s. 482 of Code of
Criminal Procedure to quash the criminal proceeding, being the FIR or Charge
Sheet, at the initial stage should be exercised in exceptional cases.
“18.On careful reading of the complaint, in our view, it cannot
be said that the complaint does not disclose the commission of
an offence. The ingredients of the offences under Sections
415, 418 and 420 cannot be said to be totally absent on the
basis of the allegations in the complaint. We, however, hasten
to add that whether or not the allegations in the complaint are
otherwise correct has to be decided on the basis of the
evidence to be led at the trial in the complaint case but simply
because of the fact that there is a remedy provided for breach
of contract, that does not by itself clothe the Court to come to a
conclusion that civil remedy is the only remedy available to
the appellant herein. Both criminal law and civil law remedy
can be pursued in divers situations. As a matter of fact they
are not mutually exclusive but clearly co-extensive and
essentially differ in their content and consequence. The object
of criminal law is to punish an offender who commits an
offence against a person, property or the State for which the
accused, on proof of the offence, is deprived of his liberty and
in some cases even his life. This does not, however, affect civil
remedies at all for suing the wrongdoer in cases like arson,
accidents etc. It is anathema to suppose that when a civil
remedy is available, a criminal prosecution is completely
barred. The two types of actions are quite different in content,
scope and impart [vide Pratibha Rani v. Suraj Kumar (supra)].”
Mr. Roy further referred to a case in Lalmuni Devi vs. State Of Bihar
Ors. 2001(2) SCC 17 and relied on the observation in the following paragraphs-
“8. There could be no dispute to the proposition that if the
complaint does not make out an offence it can be quashed.
However, it is also settled law that facts may give rise to a
civil claim and also amount to an offence. Merely because a
civil claim is maintainable does not mean that the criminal
complaint cannot be maintained. In this case, on the facts, it
cannot be stated, at this prima facie stage, that this is a
frivolous complaint. The High Court does not state that on
facts no offence is made out. If that be so, then merely on the
ground that it was a civil wrong the criminal prosecution could
not have been quashed.”
Reliance is also made to a case of Kamaladevi Agarwal vs State of West
Bengal and Ors. AIR 2001 SC 3846 wherein it has been held, “while exercising
powers under Section 482 of the Code, the High Court should be slow in interfering
with the proceedings at the initial stage and that merely because the nature of the
dispute is primarily of a civil nature, the criminal prosecution cannot be quashed
because in cases of forgery and fraud there is always some element of civil nature.
In a case where the accused alleged that the transaction between the parties are of
a civil nature and the criminal court cannot proceed with the complaint because the
factum of document being forged was pending in the civil court, the court observed
“accepting such a general proposition would be against the provision of law
inasmuch as in all cases of cheating and fraud, in the whole transaction, there is
generally some element of civil nature. However, in this case, the allegations were
regarding the forging of the document and acquiring gains on the basis of such
forged documents. The proceedings could not be quashed only because the
respondents had filed a civil suit with respect to the aforesaid documents. In a
criminal court the allegations made in the complaint have to be established
independently, notwithstanding the adjudication by a civil court. Had the
complainant failed to prove the allegations made by him in the complaint, the
respondents were entitled to discharge or acquittal but not otherwise. If mere
pendency of a suit is made a ground for quashing the criminal proceedings, the
unscrupulous litigants, apprehending criminal action against them, would be
encouraged to frustrate the course of justice and law by filing suits with respect to
the documents intended to be used against them after the initiation of criminal
proceedings or in anticipation of such proceedings. Such a course cannot be the
mandate of law. Civil proceedings, as distinguished from the criminal action, have
to be adjudicated and concluded by adopting separate yardsticks. The onus of
proving the allegations beyond reasonable doubt, in criminal case, is not applicable
in the civil proceedings which can be decided merely on the basis of the
probabilities with respect to the acts complained of.”
Bestowing upon the principles of law held in the cited decisions referred to
by the rival parties, I am of the view that there is no straitjacket formula to
consider a proceeding for to be quashed or not to be quashed but it is equally a
principle of law that the facts scenario of the complaint has to be taken note of
while construing as to whether the offences alleged have at all been committed.
Therefore, it is apt to appraise the contents of the allegations made in the FIR
and the circumstances leading to lodgement of the FIR against the Managing
Director and Directors of the Company, as the company has not been arraigned
as an accused in the FIR.
Mr. Mookherjee, learned Senior Counsel for the petitioners has argued by
pressing in service pendency of an application under section 7 of Insolvency and
Bankruptcy Code 2016 (in short I.B.C.) filed by Allahabad Bank. It appears from
the order dated 22nd of December 2017 passed by the National Company Law
Tribunal, Calcutta Bench that the said petition for initiation of corporation
insolvency process under Section 7 of IBC was admitted and Mr. Vijaya kumar
Iyer was appointed an interim resolution professional which reflects that
moratorium under section 14 of IBC was considered by NCLT.
It would appear that the opposite party MSTC Ltd accepted payment of an
aggregate sum of Rs. 1.30 crores on 2nd December, 2017 and further sums of Rs.
20 lakhs and Rs. 30 lakhs and also Rs. 50 lakhs on 12th of December 2017, 22nd
December, 2017 and 26th December, 2017 respectively but did not release any
material as it was obliged in accordance with the terms of the award dated 19th
July, 2017 read with the written terms of settlement dated 3rd of November,
2017. Yet, the opposite party no. 2 MSTC Ltd registered a complaint with the
Officer in charge against the petitioners as the directors of M/s. SPSRM LTD
alleging unlawful removal, misappropriation and criminal breach of trust in
respect of 19,360.42 M.T. pig iron amongst other items.
In this context Mr. Roy and Mr. Ghosh appearing for the opposite parties
argued that the criminal liability of a corporate body for acts committed by it
through its Directors, Agents and Officials is well settled. The company does not
have a mind to think or connive or hands to remove the unpaid pledge materials
belonging to the complainant company MSTC. It is submitted that reference to
the National Company Law Tribunal, Calcutta Bench of the said company is
immaterial and it is irrelevant whether the complainant MSTC had participated
in the proceedings as a creditors of a company pursuant to the Corporate
Insolvency Resolution Process initiated against the company by the financial
creditors of the company.
I am unable to agree with the contention raised by Mr. Roy and Mr. Ghosh
inasmuch as I find in affidavit in opposition to CRAN 1510 of 2018 and its
annexures that the MSTC participated in such Corporate Insolvency Resolution
Process and filed an application before NCLT, inter alia, praying for confirming
the status of the claim of MSTC complainant as a secured creditor in priority to
the claims of the financial creditor and that to declare outstanding claims of
Rs.300.44 crores arising out of transactions with the respondent company SPS
Steel Rolling Mills and further prayed for to remove or utilise any material held
on pledge without prior permission. The contentions made before the NCLT is to
the effect that the MSTC Ltd being the operational creditor should be given
priority in payment over that of the financial creditors as per amendment of the
Insolvency and Bankruptcy Board of India (Insolvency Resolution Process For
Corporate Persons) Regulations 2016 amended vide the Fourth Amendment
dated 5th October, 2018.
Therefore, mere claim for investigation into the matter by Police Agency
should not be allowed as the opposite party no.2 was well aware of the
arbitration award in terms of settlement, the order of injunction in a
Miscellaneous case under Section 9 of Arbitration and Conciliation Act, 1996
before the Court of District Judge, Alipore and the proceeding under IBC before
NCLT. It is settled principle of law that IBC is a complete code providing
jurisdiction of a special Court for inquiry and trial in respect of offences
committed as alleged under the said Code.
Plain reading of the allegation made in the complaint would reveal that
pursuant to the agreements dated 2nd March, 2010 and addendum dated 25th of
August, 2017 between MSTC and SPS steel Rolling Mills Ltd, MSTC agreed to
stock pig iron for the said SPS steel Rolling Mills Ltd under the said agreement.
The essential terms of the said agreements provide that MSTC will finance the
procurement of materials for and on behalf of SPS steel Rolling Mills Ltd and
upon such procurement the same shall be pledged by SPS in favour of MSTC for
being released from time to time from the designated stockyard against retail
authorisations by MSTC.
In pursuance of the terms of the agreement, the pledged materials are to be
kept under custody of third-party custodian i.e. M/s. Ferro Scrap Nigam Ltd
(FSNL in short). It further reveals that on receipt of the payments from SPS steel
Rolling Mills Ltd materials are to be released by MSTC from time to time to SPS
steel Rolling Mills Ltd from custody of such third party custodian. Accordingly a
tripartite agreement dated 24th of May 2013 was executed between MSTC, SPS
Steel Rolling Mills Ltd and FSNL.
It is alleged that in terms of the aforesaid agreement on or about
November, 2017 the SPS Steel Rolling Mills Ltd illegally removed/consumed
19360.42M Pig Iron amounting to more than Rs. 65 crores which were kept
under pledge to MSTC by SPS Steel Rolling Mill Limited by letter dated
27.11.2017. It is further alleged that the said SPS Steel Rolling Mills wrongly
informed regarding shortage of the materials by way of waste or inadvertent
consumption by SPS Steel Rolling Mills Ltd.
Accordingly the complaint was lodged to the effect that the petitioners have
acted in breach of the agreement and trust reposed on them illegally by
consuming the materials or by removal of the same causing wrongful loss to the
MSTC. Mr. Mookherjee, learned senior counsel for the petitioners has invited my
attention to the first agreement dated 02.3.2010 between the petitioners and
opposite party no. 2 containing an arbitration clause 20 that in the event of any
dispute, difference between the parties relating to the interpretation,
construction, fulfilment or otherwise of the agreement, such dispute or difference
shall be settled by the process of arbitration by a sole arbitrator to be appointed
by the Chairman cum Managing Director of MSTC Ltd and further adverted my
attention to a tripartite agreement dated 2nd day of March, 2010 between MSTC ,
SPS Steel Rolling Mills Ltd and Transafe Services Ltd. which relates to receipt,
storage ,custody and issue of pledged materials.
Said tripartite agreements clearly spell out that the SPS Steel Rolling Mills
has to arrange for a warehouse with well-developed open space which is to be
given to MSTC for warehousing of the raw materials and MSTC thereafter shall
become the Licensee for a period of one year from the date of the agreement and
pledged goods are to be fully lifted, and MSTC self-paced sum of Rs.10 per
month as consolidated license fees to FSNL, however, the agreement was to
remain in force with effect from February, 2010 i.e. from the date of arrival of the
stock under custody of Transafe services Ltd. and the developed warehouse has
to be handed over to transit, however, running cost of these facilities was to be
borne by the SSRML. But the complainant opposite party no.2 and its nominated
representative had unfettered access to the warehouse. Clause 5 of tripartite
agreement reflects that on receiving possession of the said warehouse, MSTC will
hand over the warehouse to TRANSAFE for the purpose of inventory and storage
of the materials and any other items brought by MSTC for SSRML. It also reveals
that supervision of unloading, checking, and delivery at and from designated
warehouse has to be done by Transafe and to maintain proper records and
registers for incoming and outgoing materials. Security round-the-clock was also
provided by Transafe.
Clause 9 of the agreement provides that SPSRML shall arrange for transit
insurance of the materials from the dispatch port to the designated Warehouse
as well as Storage Insurance of the materials for theft, burglary, fire and pilferage
etc. Storage Insurance shall be valid till the period the said material is being
lifted by SSRML. Both Transit as well as the Storage Insurance shall mention
MSTC as beneficiary. Original Insurance Policies shall be provided by SSRML to
M/s. TRANSAFE before effecting the movement of goods from the port. M/s.
TRANSAFE shall hand over such policies to MSTC in case of any claim. Clause
11 specifically provides that deliveries of the materials shall be allowed by
TRANSAFE to SSRML only against authorisation letter issued by MSTC to
TRANSAFE. Such delivery shall be made by TRANSAFE to SSRML between 9 AM
to 5 PM weekly restricted holiday is applicable. In the said tripartite
agreement, clause 15 provides for arbitration clause that in case of any dispute
under the agreement the parties to the dispute shall appoint an arbitrator and
appointed arbitrator shall nominate an umpire and they would constitute an
arbitral tribunal to decide the procedure for holding the arbitration.
My attention is also drawn to various clauses 2, 3, 4, 5, 11, 12 and15 of
the third agreement entered on 24th day of month of May 2013 between MSTC
LTD., FERRO SCRAP NIGAM LTD. and SPS STEEL ROLLING MILLS LTD. to
argue that the disputes between the petitioners and opposite party no. 2 is
essentially a civil dispute. It reveals that warehousing area will be 50m X 50m
approximately inside plant premises and in case of increase in area/volume of
material/type of material in future, service charges will be revised after mutual
discussion.
Clause 2 provides that MSTC shall use the said warehouse for one year
from 10/04/2013 or till the pledged goods are fully lifted, whichever is later and
shall pay token sum of Rs.10/- per month as consolidated license fee to SPS.
Clause 5 provides that on receiving the possession of the said
warehouse/stockyard in ready to operate conditions, MSTC shall hand over the
said warehouse/stockyard to FSNL for the purpose of inventory and storage of
the materials bought by MSTC for SPS and pledged by SPS to MSTC. The
unloading/loading and physical handling of the material whether at the time of
receipt or delivery or during any periodic stock verifications shall be done by SPS.
Supervision of unloading, checking and delivery at/from the designated
warehouse/stockyard will be done by FSNL and FSNL shall also maintain proper
records and registers for incoming and outgoing of material.
It is curious to note that FSNL has not been made party to the petition of
complaint whereas clause 11 clearly provides that deliveries of materials shall be
allowed by FSNL to SPS only against authorisation letter issued by MSTC to
FSNL. Further, clause 12 provides that FSNL shall keep and maintain proper
registers and records with regard to nature and quantity of material received,
issued and kept in the warehouse/stockyard and FSNL shall send weekly stock
report to MSTC by FAX/E-mail and in case of any anomaly/variations observed,
it shall be immediately informed and reported to MSTC. This third agreement
also provides for arbitration clause for referring any dispute or differences
between the parties for settlement by process of arbitration of a Sole Arbitrator to
be appointed by the Chairman -cum Managing Director of MSTC.
Mr. Mookherjee adverted my attention to the minutes of the 11th sitting of
the parties held by Sole Arbitrator on July 19, 2014 which reflects that the award
was passed in terms of the settlement arrived by and duly signed by the
representatives of the parties and also by their learned advocates. Terms of
settlement being part of the award reveals that there was balance of Rs. 276.92
crores to be paid. My attention is specifically invited to clause 10 and 11 of the
Terms of Settlement which provides thus:
“10. Material proportionate to the payment received shall be released
through the custodian at the revised issue price calculated as on
30.06.14. Shortages, if any, shall be to the account of respondent only.
11. In addition to the payment as aforesaid, the respondent agrees and
undertakes to pay a sum of Rs.1 lakh only per month to the claimant
toward reimbursement of custodian charges which shall be paid on
demand, till the total material as per books of MSTC Ltd is lifted.
Volumetric assessment of material will be done by the claimant through
an independent inspection agency within the panel of MSTC in
consultation with the respondent herein every year in the month of
February. If any shortage detected beyond the tolerance limit, as may be
mentioned in the relevant Volumetric Assessment report, the value of
such shortage will be paid by the respondent to the claimant herein
immediately and in default the respondent shall pay the value of such
shortage as per issue price within six months, which claimant shall
adjust against the subsequent instalments due from the respondent
company in terms hereof. In any event, the claimant shall not be liable
for such shortage.”
It is submitted that in view of the award in terms of settlement being the
part of the award, the respondent indubitably agreed and undertook to withdraw
the Title Suit No. 51 of 2013 pending in the court of the learned District Judge
Alipore 24- Parganas (s) and to communicate the order of withdrawal to the
claimant or its advocate forthwith which is reflected from the clause 16 of the
terms of settlement and in terms thereof the suit was withdrawn in which the
opposite party no. 2 MSTC and its men and agents were restrained. It would also
reveal from the order dated May 8, 2016 of the sole arbitrator that in view of the
settlement, the application under Section 17 of the Arbitration and Conciliation
Act, 1996, the award dated November 3, 2017 in terms of the terms of
settlement, the petitioners and the opposite party no.2 had mutually agreed to
protect interest of both the parties and the terms of the award dated 19th of July,
2014 was modified providing for the terms and the manner in which the payment
of Rs. 216.92 Crores as on 16 May 2017 was due and payable to MSTC,
however, all other terms of the Award dated 19th July, 2014 remained in full
force and effect.
Accordingly, it is submitted with force that there is no element of cheating
on the part of the petitioner since inception of the agreement entered by and
between the petitioners and the opposite party no. 2 and question of
misappropriation alleged by the complainant does not find place to bring home
the charges under section 420 and 406 of the Indian Penal Code.
It would be apt to reproduce the extracts of the letter Ref.No. SSR
ML/MSTC/11/27/2017/01 dated 27.11.20174 for profitable consideration
which reads thus:
“As you know in terms of award dated July 19, 2014 read with
order dated May 8, 2016 and in terms of settlement taken on record
by the said order as well as the award dated November 3, 2017, we
have been regularly making payments of Rs.2 crores to you against
which you have been releasing players materials. Accordingly, upon
our making payment, you issued release order dated October 26,
2017 for 920.227 MT November 2, 2017 for 922.437MT of pig
iron.
Consequently, at our end, necessary instructions were issued to
obtain release of the said material and utilise the same. However,
we were informed by our representative at Durgapur factory that the
quantity of the pig iron appeared to be far less than the quantity
found on April1, 2017 at the time of verification in presence of
representatives of all concerned.
In view of such report, we caused an enquiry to be made and have
found that there is shortage of approximately 19,500 metric ton of
Pig Iron. Such shortage has occurred by reasons of wastage and/or
inadvertent consumption. We are in process of ascertaining the
circumstances under which such shortage has taken place and
would keep you posted with the developments in respect thereof.
In the meantime, considering the fact that clause 11 of the terms of
the settlement filed on July 19, 2014 provides that ” if any shortage
is detected beyond the tolerance limit, as may be mentioned in the
relevant Volumetric Assessment report, the value of such shortages
will be paid by the respondent to the claimant herein immediately
and in default the respondent shall pay the value of such shortage
as per issue price within six months, which claimant shall adjust
against the subsequent instalments due from the respondent
company in terms hereof. In any event, the claimant shall not be
liable for such shortage”, we deem it our duty to bring the aforesaid
facts to your notice.”
The said communication was made by SPSRML to the Chairman and
Managing Director of MSTC Ltd with a copy to General Manager (Marketing)
MSTC. It clearly exhibits that the petitioners had no criminal intention to cheat
the opposite party no.2 /complainant from very inception of the said tripartite
agreements entered by and between them.
Having gone through the observations of the Hon’ble Supreme Court in the
cited decisions; I fully agree with contentions of Mr. Mookherjee that it is well
settled principle of law that the concept of ‘vicarious liability’ is unknown to
criminal law save and except in certain enactments, such as, Section 141 of the
Negotiable Instruments Act, 1881 which specifically provides that if the person
committing an offence under Section 138 of the Act is a company, every person
who, at the time the offence was committed, was in charge of, and was
responsible to, the company for the conduct of the business of the company, as
well as the company, shall be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished accordingly. Likewise, Section 32 of
the Industrial Disputes Act, 1947 provides that where a person committing an
offence under this Act is a company, or other body corporate, or an association
of persons, every director, manager, secretary, agent or other officer or person
concerned with the management thereof shall, unless he proves that the offence
was committed without his knowledge or consent, be deemed to be guilty of such
offence.
It is argued that the offence alleged in the instant case filed by the opposite
party no. 2 is under Sections 406 and 420 of the I.P.C. where under no specific
liability is imposed even on the officers of SPS, if the alleged offence is committed
by the said company. In the absence of specific details about the same, no
person other than SPS can be prosecuted under the impugned FIR and reference
is made to a decision of the Hon’ble Supreme Court in Vesa Holdings P. Ltd.
Anr. vs. State Kerala Ors. 2015 (8) SCC 293 to the observations in the
following paragraphs –
“12. From the decisions cited by the appellant, the settled
proposition of law is that every breach of contract would not
give rise to an offence of cheating and only in those cases
breach of contract would amount to cheating where there was
any deception played at the very inception. If the intention to
cheat has developed later on, the same cannot amount to
cheating. In other words for the purpose of constituting an
offence of cheating, the complainant is required to show that
the accused had fraudulent or dishonest intention at the time
of making promise or representation. Even in a case where
allegations are made in regard to failure on the part of the
accused to keep his promise, in the absence of a culpable
intention at the time of making initial promise being absent, no
offence under Section 420 of the Indian Penal Code can be
said to have been made out.
13. It is true that a given set of facts may make out a civil
wrong as also a criminal offence and only because a civil
remedy may be available to the complainant that itself cannot
be a ground to quash a criminal proceeding. The real test is
whether the allegations in the complaint disclose the criminal
offence of cheating or not. In the present case there is nothing
to show that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC. In our view
the complaint does not disclose any criminal offence at all.
Criminal proceedings should not be encouraged when it is
found to be malafide or otherwise an abuse of the process of
the court. Superior courts while exercising this power should
also strive to serve the ends of justice. In our opinion, in view
of these facts allowing the police investigation to continue
would amount to an abuse of the process of court and the
High Court committed an error in refusing to exercise the
power under Section 482 Criminal Procedure Code to quash
the proceedings.”
Pursuant to the terms of the agreement, the pledged materials are to be
kept under the custody of 3rdparty custodian i.e. M/s. Ferro Scrap Nigam Ltd
(FSNL in short). It further reveals that on receipt of the payment from SPS Steel
Rolling Mills Ltd’ materials are to be released by MSTC from time to time to SPS
Steel Rolling Mills Ltd from the custody of such 3rd party custodian. Accordingly,
a tripartite agreement dated 24th of May 2013 was executed between MSTC, SPS
Steel Rolling Mills Ltd and FSNL.
In the context of what has been discussed above and taking cue from the
principle of law laid down by the Hon’ble Apex Court particularly in Medchl
Chemical Pharma (supra), I find that there is no element of cheating on the
part of the petitioner since inception of the agreement entered by and between
the petitioners and the opposite party no. 2 and question of misappropriation
alleged by the complainant does not find place to bring home the charges under
Sections 420 and 406 of the Indian Penal Code. Since ‘mens rea’ to cheat from
the very inception is the most vital ingredient which differentiates cheating
simpliciter from breach of agreement because mere failure of a person to keep
promise subsequently cannot be construed as culpable intention right at the
beginning.
At the conclusion of the argument, Mr. Debasish Roy, learned counsel for
the opposite party no. 2 candidly submitted that in the said insolvency
proceedings before the National Company Law Tribunal, Kolkata, MSTC is
receiving its dues.
I do find that offence under Section 406 IPC is also not evident in the given
facts of the case as the entrustment of any material with the Petitioners, in
particular is missing, rather, this Court finds that as per the tripartite
agreement, at the first instance, M/s. Transafe was the custodian of the material
stored in the warehouse provided by the Petitioners’ Company and thereafter
FSNL was inducted by a second tripartite agreement to hold the stock in the
warehouse provided by the Petitioners’ Company. Therefore it cannot be said that
the materials being pig iron, etc. were stored under the custody of entrusted
with the Petitioners.
This fact cannot be lost sight of that the Petitioners had instituted a Title
Suit in the Court of District Judge, Alipore wherein the Complainant MSTC and
its men and agent were injuncted from giving effect to letter issued by MSTC and
MSTC entered into an agreement with the Petitioners on certain conditions and
the Petitioners had agreed to withdraw the said suit. Accordingly, the suit was
withdrawn at the instance of MSTC.
For the aforesaid reasons discussed in the foregoing paragraphs, I hold
that the complaint against the Petitioners does not disclose allegations of
cheating under Section 420 and misappropriation of any property under Section
406 I.P.C. and the complaint appears to have been lodged to give vent
vindictiveness of the officials of MSTC through a legal process because the
dispute between the parties is essentially Civil dispute which is under the
process of Insolvency proceeding, hence, continuance of the proceeding would
amount to misuse of the process of the Court.
Ergo, the proceeding in G.R. Case No. 193 of 2018 in connection with New
Township Police Station (NTS), Durgapur, Case No. 16 dated 10th February, 2018
under Sections 420/406 of the Indian Penal Code, 1860 pending before the Court
of the learned Additional Chief Judicial Magistrate at Durgapur is hereby
quashed.
Accordingly, revisional application being CRR 607 of 2018 and CRAN 1510
of 2018 are disposed of.
Urgent certified photocopy of this Judgment, if applied for, be supplied to
the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)