Crl.Misc.No. M-4875 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: September 09, 2010 Crl. Misc. No. M-4875 of 2008 Harbhajan Singh Dureja ...........Petitioner Versus State of Punjab etc. ..........Respondents Crl. Misc. No. M-18224 of 2010 Sudesh Dureja etc. ...........Petitioners Versus State of Punjab etc. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.M.K.Singla,Advocate for the petitioner. Mr.Amandeep Singh Rai,Assistant Advocate General,Punjab Mr. Vishal Deep Goyal, Advocate for respondent No.2 ** Sabina, J. Both the above-mentioned Crl.Misc.Nos. M-4875 of 2008 Crl.Misc.No. M-4875 of 2008 2 and M-18224 of 2010 are taken up together as both the petitions have arisen out of the common FIR. Petitioners have filed these petitions under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of case FIR No. 10 dated 15.1.2008 registered under Section 406 of the Indian Penal Code (for short `IPC') at Police Station Sadar Sangrur, District Sangrur. The contents of the FIR (Annexure P5) read as under:- “This time an order No. 8337/SP, 15.1.2008 has been received from SSP Sangrur, on the application of Raj Kuma Gupta, Director Sangrur Milk Products Pvt. Ltd., for registering the case, contents of which are like this that to SSP Sangrur. Subject: Application for registering the case against (1)Harbhajan Singh Dureja, Director M/s Angad Milex International Limited (2) Smt. Sudesh Dureja w/o Harbhajan Singh Dureja, Director abvoesaid Firm (3) Sandeep Dureja s/o Harbhajan Singh Dureja, Director M/s Angad Milex International Limited, D-192, Ranjit Avenue Amritsar (Punjab). Accused Sir the application is as under:- That we Raj Kumar Gupta s/oSh. Om Parkash Jindal, Vipin Jindal s/o Sh. Raj Kumar Gupta, Rajesh Jindal s/o Sh. Raj Kumar Gupta, Directors M/s Sangrur Milk Products Private Limited are residents of registered office, Rural Focal Point, Village Bhindran Patiala Road, Sangur and are the present Directors of this Firm. We ourselves look after this firm. (2) That on 15.8.2007, above accused had taken our above milk plant, on lease, for one year. Regarding this accused No.1, with his free will had entered into Crl.Misc.No. M-4875 of 2008 3 an agreement dated 15.8.2007 with our company, which is valid upto 31.8.2008. As per that agreement, above accused were to give Rs.2,00,000/- per month to our company and accused had taken possession of our company on 16.8.2007 and had started working there but till date, accused had given Rs.3,25,000/- only to our firm. Accused with bad intention have taken away our machinery from our factory and have left the factory. As per agreement dated 15.8.2007, accused have not paid our till date balance due to bad intention. An amount of Rs.28 lacs is due towards the accused, on account of lease amount and expenses of the electricity etc. They have done all this with bad intention and in order to grab the money (3) That when even ever we asked abovesaid accused regarding money and stealing of machine and when yesterday on 13.11.2007, we talked with them on telephone then they threatened us that they will not pay any money or machine etc. because they have relations with antisocial elements. They further said that if we demand money from them then they will kill us because they are residents of border area. Therefore, by presenting the application it is requested that an order be passed for registering the FIR against above accused regarding committing of fraud and stealing of machinery. Justice be done with us. Applicant Sd/- Raj Kuamr Gupta, Director Sangrur Milk Products Pvt. Ltd.” After hearing the learned counsel for the parties, I am of the opinion that the instant petitions deserve dismissal. Crl.Misc.No. M-4875 of 2008 4 It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a Crl.Misc.No. M-4875 of 2008 5 cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do Crl.Misc.No. M-4875 of 2008 6 not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” In the present cases, admittedly, the memorandum of understanding was executed between M/s Angad Milex International Ltd. (First Party) with M/s Sangrur Milk Products Pvt. Ltd (Second party) on 15.8.2007. Both the parties agreed that the First party shall run the Unit in question. It was also agreed that the Second party will ensure that the machinery etc. required for running the Unit are in good condition to manufacture the products in question. The Second party will hand over the machinery and equipment to the First party in perfect working condition on the signing of the agreement. The First party may add machinery equipments as required for running the Unit smoothly. None of the items will be removed under any circumstances. Second party will not have any lien on such equipment machinery so placed or brought in by the First Party in the premises of the Second party. In case of any dispute,differences etc. the parties could get the matter referred to the Arbitrator and his decision would be final and binding upon the parties. In the present cases, the case of the complainant is that the petitioners have removed the machinery from the premises in question. A perusal of Annexure P3 reveals that the machinery had been removed for getting the same repaired. When the machinery was brought back to the Unit after it was repaired, the same was not allowed to be unloaded by Raj Kumar Gupta etc. Thus, it transpires that the machinery had been removed from the Unit. Whether it had been removed for repair or for some other purposes would more appropriately be gone into and considered during the trial. In the present cases, both the parties would be required to establish Crl.Misc.No. M-4875 of 2008 7 their pleas by leading evidence during trial. Merely because an arbitration clause has been incorporated in the memorandum of understanding cannot be ground to quash the FIR. So far as an arbitration clause is concerned, it is remedy for affording relief to the party affected by the breach of agreement but the Arbitrator cannot conduct a trial with regard to the removal of the machinery/equipment for any ulterior purpose. In Trisuns Chemical Industry vs. Rajesh Agarwal and others JT 1999(6) SC 618, it was held as under:- “ 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 Bhajan Lal vs. State of Haryana(supra).” In these circumstances, no ground for quashing of the FIR is made out. Crl.Misc.No. M-4875 of 2008 8 Dismissed. ( Sabina ) Judge September 09, 2010 arya