1 APL 607.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO. 607 OF 2011 Bharat Petroleum Corporation Ltd. & Ors. ... Applicants. V/s. Teltech Instrumentation Pvt. Ltd. & Anr. ... Respondents. Mr. Subodh Desai i/b. M/s. Udwadia & Udeshi for the Applicants. Mrs. R.V. Newton, APP for the State. Mr. Manohar H. Ramsinghani for Respondent 1. CORAM : K.U. CHANDIWAL, J. DATED : 04th OCTOBER 2011. P.C. :- Heard learned Counsel extensively. 2. The order of issuance of process by the learned Additional Chief Metropolitan Magistrate, 39th Court, Ballard Pier, Mumbai dated 20.5.2010 for an offence punishable under Sections 193, 196, 199, 200 and 465 r/w. 34 of I.P.C. is questioned. The said order was challenged in Criminal Revision Application No. 689 of 2010 by the Applicant. However, by order dated 26th April 2011, the learned Sessions Judge did not disturb the order of process and hence, the present proceedings. 2 APL 607.11.sxw 3. Several points are argued by both the learned Counsel by taking recourse to more than 300 pages and compilation. The controversy can be put in a condensed form which reflects as under :- In an arbitration proceedings initiated by the Petitioner, certain set of papers were handed over with the claim to the Respondent. It was a claim dated 23rd June 2008. The copy received by the Respondent did not contain second page of the arbitration clause of agreement and a correspondence was received as ensued by the Respondent, to the arbitrator. The Respondent felt that the arbitrator has no jurisdiction to entertain the proceedings as the claim is time barred. The Respondent asserted, omission of annexing copy of second page of the agreement has been purposely done to overcome issue of limitation. 4. The matter was dealt with before the arbitrator, by his communication dated 30.12.2009. The arbitrator has informed in following terms :- “ I have gone through the contents of the letter and records of the matter. I find that the Statement of Claim filed before me by BPCL is paginated and probably due to a photocopying/electrical mistake, you were provided with a set having a incomplete arbitration clause i.e. page number 41 was missing. A complete set was later provided to you from my office. 3 APL 607.11.sxw In my view, it was a small clerical/photocopy mistake and you could have found out easily that a page was missing since the entire claim was paginated and page no.41 was missing. You are unnecessarily making a big issue out of the same.” 5. Thus, the learned Arbitrator in unequivocal terms illustrated that the inaccurate supply of the copy was a clerical error and page 41 initially missing was indeed supplied. 6. The learned Counsel for the Respondents submits that this was deliberately done to avoid the jurisdiction and to create a story of confusion. Apart from this, according to the learned Counsel for the Respondents, the invitation for tender had no terms and conditions set out at its reverse. However, in the copy that was supplied to the Respondents, there were terms and conditions set out which created a state of confusion. All these aspects, as stated earlier gave rise to the prosecution before the learned Metropolitan Magistrate and the process as stated above came to be issued. 7. Paragraph 7 of the said complaint incorporate the events more or less highlighted herein before. Reading the complaint as a whole, annexures thereto, and the clarification of arbitrator appearing at page 94 dated 30.12.2009, it is explicit that the omission to annexe second page could not be deliberate or no criminal intention could be attributable to the Petitioner/Applicant as the accused in the said proceedings. 4 APL 607.11.sxw 8. Another aspect of the matter is, the Respondents cannot be allowed to contend that these documents were surreptitiously or suspiciously flashed. These documents apparently were part of series of communication and transaction between the parties. It cannot be, therefore, said that the Respondents were taken by surprise or a prejudice is caused to them. Incidentally, all these events were highlighted by the parties in the arbitration proceedings and the learned arbitrator has dealt with the same. The challenge to the limitation as was negated by the learned arbitrator was even carried to this Court, however, the Respondents failed. 9. Going through the complaint to repeat, it does not indicate any prima-facie element and material to issue process against the Applicants for infraction of the above referred penal provisions. There was no criminal intention on the part of the Applicants to avoid supply of page 2 of the arbitration agreement or to have incorrectly or inaccurately supplied second page of invitation for tender. The allegations in complaint taken at their face value, even accepting them, do not constitute criminal offences. Principles of vicarious liability could not been slapped to Applicant Nos.2 and 3. Consequently, I find that the order of issuance of process and that of the learned Revisional Court, calls for interference. The order of the learned Revisional Court does not answer legal position coupled with the available record which he may have been done in terms of Section 397 of Cr.P.C. Since the 5 APL 607.11.sxw order does not inform the correct legal position, there is failure to look the facts in appropriate manner invites interference, even if scope under Section 482 of Cr.P.C. is limited, order is accordingly set aside. Application allowed. (K.U. CHANDIWAL,J.)