CRIMINAL MISCELLANIOUS No. 20191 OF 2007 WITH CRIMINAL MISCELLANEOUS NO. 23560 OF 2007 ******** ( IN THE MATTER OF AN APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE) ****** NATIONAL THERMAL POWER PROJECT OF NATIONAL THERMAL POWER CORPORATION LIMITED (GOVERNMENT OF INDIA ENTERPRISES), CAMP OFFICE, BARH, PATNA, THROUGH MR. SHAIK ADAM SHAREEF, SON OF SHRI S. D SHAREEF, POSTED AS DEPUTY GENERAL MANAGER, CIVIL, N.T.P.C., BARH SUPER THERMAL POWER PROJECT, POST OFFICE BARH, DISTRICT PATNA ……………………………………………..PETITIONER (CR. MISC. 20191/07) VERSUS 1. THE STATE OF BIHAR 2. M/S CHITRAVALI SALE PRIVATE LIMITED, THROUGH ITS DIRECTOR KRISHNA MOHAN SINGH, HAVING REGISTERED OFFICE AT 1/42, AZADGARH, GROUND FLOOR, KOLKATA-40, ADMINISTRATIVE OFFICE AT 232, COOPERATIVE COLONY, BOKARO STEEL CITY, BOKARO (JHARKHAND) AND LOCAL OFFICE IN FRONT OF SHAHPUR POLICE STATION, DANAPUR ……………………………………………….RESPONDENTS (CR. MISC. 20191/07) WITH 1. A.P.R.CONSTRUCTION LTD. (A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956) HAVING ITS REGISTERED OFFICE AT FLAT NO. 404, 5TH FLOOR, BHANU ENCLVE, SUNDAR NAGAR, ERRAGADDA, HYDERABAD-38 (FORMERLY A. PRABHAKAR REDDY AND COMPANY, A PARTNERSHIP FIRM WHIH HAS BEEN CONVERTED IN PETITIONERS’ COMPANY AS PER PART IX OF THE COMPANIES ACT, 1956) THROUGH ITS AUTHORISED REPRESENTATIVE AND RESIDENT ENGINEER SHRI M. AMAR NATH REDDY, SON OF SHRI SUBBA REDDY, RESIDENT OF FLAT NO. 18, SHRI NIWAS TOWER, CENTRAL AVENUE, M.S.R. NAGAR, ANDHRA PRADESH, PRESENTLY, RESIDFING AT N.T.P.C., BARH, S.T.P.P., BARH, DISTRICT PATNA 2. M/S AVANTIKA CONTRACTOR THROUGH ITS AUTHORISED REPRESENTATIVE AND MANAGER SHRI V., RAMCHANDRA REDDY, SON OF SHRI V. THIRUPATHI REDDY, RESIDENT OF SRINIVASAPURA BHADRAVATI TALUK, DISTRICT SIMOGA, KARNATAKA. AT PRESENTLY, RESIDING AT N.T.P.C., BARH, POLICE STATION BARH, DISTRICT PATNA ………………………………….….…..PETITIONERS (CR. MISC. 23560/07) VERSUS 1. THE STATE OF BIHAR 2. M/S CHITRAVALI SALE PRIVATE LIMITED, THROUGH ITS DIRECTOR KRISHNA MOHAN SINGH, HAVING REGISTERED OFFICE AT 1/42, AZADGARH, GROUND FLOOR, KOLKATA-40, ADMINISTRATIVE OFFICE AT 232, COOPERATIVE COLONY, BOKARO STEEL CITY, BOKARO 2 (JHARKHAND) AND LOCAL OFFICE IN FRONT OF SHAHPUR POLICE STATION, DANAPUR …………………………………………..….RESPONDENTS (CR. MISC. 23560/07) ********** FOR THE PETITIONER :- MR. AKHILESHWAR PD. SINGH, SR. ADV. (IN CR. MISC. 20191/07) MS. SONI SHRIVASTAVA, ADVOCATE FOR THE PETITIONERS :- MR. PUSHKAR NARAIN SHAHI, ADVOCATE (IN CR. MISC. 23560/07) MR. RITESH KUMAR NO. 1, ADVOCATE FOR THE S T A T E :- MR. PARMESHWAR MEHTA, A.P.P. (IN BOTH CASES) FOR O.P. NO. 2 :- MR. SHIVENDRA KISHORE, ADVOCATE (IN BOTH CASES) ************* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These two applications have been filed for quashing the order dated 24.07.2006 passed in Complaint Case No. 1222 (C) of 2006 by which the Judicial Magistrate, 1st Class, Patna has taken cognizance for the offence under Section 379 of the Indian Penal Code. 2. The complainant is M/s Chitravali Sale Private Limited. The accused persons are the National Thermal Power Project (hereinafter referred to as the NTPC), the National Building Construction Corporation Limited (hereinafter referred to as the NBCCL), who have given 3 the contract of filling of earth to the accused nos. 3 and 4, namely, M/s A. Prabhakar Reddy & Company and M/s Shri Avantika Contractors (petitioners of Criminal Misc. No. 23560 of 2007). Apart from the aforesaid accused persons, Arjun Kumar Singh, the Assistant Mining Officer, Patna and Shiya Sharan Thakur, Mining Inspector have been made accused in this case. 3. NTPC, the accused no. 1 is setting up a huge power project to generate electricity at Barh, district Patna. The National Thermal Power Corporation (hereinafter referred to as the NTPC) had entered into an agreement with the NBCCL on 07.01.2004 for the earth work. The NBCCL in turn has sublet the work to the accused nos. 3 and 4 described above. One of the witnesses to this complaint case is one Subhash Prasad Yadav who was allotted and settled the sand ghats of Barh for the year 2003 to 2005. Subsequently, the said ghats were settled in favour of the complainant. 4. The allegation in the complaint petition, in short, is that accused nos. 3 and 4 had excavated sand from the sand ghats, settled in favour of witness no. 1 without paying royalty to the State Government at the rate of Rs. 25 per cubic meter and thereby had caused a loss to the witness no. 1 and subsequently to the complainant. In order to substantiate the aforesaid 4 allegation, it has been said that when the witness no. 1 of the complaint petition i.e. Subhash Prasad Yadav came to learn about the said excavation, he filed a writ application, CWJC No. 4762 of 2005 for a direction to the accused persons to pay royalty in favour of the writ petitioner after determining the quantity of sand used by the NTPC, NBCCL and its subtleties, accused nos. 3 and 4. It is said that the writ application is pending till today. A report was called for by this Court during the hearing of the writ petition from the Land Reforms Deputy Collector which has been annexed to the complaint petition at page 180 and 182 of the brief (The report is part of the First Information Report). It has been specifically stated at paragraph 19 of the complaint petition that the petitioners of Criminal Misc. No. 23560 of 2007 have paid a sum of Rs. 10,4398,836/- as royalty to the State Government at the rate of Rs. 15 per cubic meter for excavation of earth in stead of Rs. 25 per cubic meter, which is the rate for excavation of sand and thereby caused a loss of revenue to the State Government. It has further been alleged that the District Mining Officer, Patna made several irregularities in issuing the permits, which have been enumerated in paragraph 19 (1) to 19 (iv) of the complaint petition. It would be relevant to state here that some of the 5 irregularities pointed out by the complainant at paragraph 19 are on the basis of the report of the Land Reforms Deputy Collector which was annexed in the writ application referred to above. Those reports, needless to say, are under challenge by the accused nos. 3 and 4. In conclusion, it has been alleged that the accused nos. 3 and 4, by violating the terms of the agreement made between them and the villagers, have controverted the provisions of Section 23 (4) of the Bihar Tenancy Act, 1885. 5. It has further been alleged at paragraph 20 that 22 permits have been issued by the Assistant Mining Officer contrary to the rules and regulations. It has been specifically stated at paragraph 21 that the accused nos. 2, 3 and 4 in collusion with the mining authorities had committed various irregularities, namely, (a) they have violated the mandatory provisions contained in rule 27 of the Bihar Minor Mineral Concession Rules, 1972, (b) While making agreements, accused nos. 3 and 4 have violated the provisions of Section 23 (4) of the Bihar Tenancy Act, 1885. (the provisions has been struck down by the judgment of this Court in the case of Amar Singh vs. State of Bihar and its analogous cases, 2007 (3) PLJR 225 (DB), (c) accused nos. 3 and 4 has stealthily excavated the bed of the River Ganges without paying 6 royalty to the complainant or the settlee who had filed the writ application and thus, has committed offence under Section 379 of the Indian Penal Code. 6. As per the case of the complainant himself, the main allegations are against M/s A. Prabhakar Reddy and Company and M/s Sri Avantika Contractors as well as the mining officers, who had granted them permits and also accepted the agreements made between the aforesaid two persons with the villagers for the purpose of excavation of the earth. In the entire complaint petition, there is no allegation that at any stage, petitioner no. 1 i.e. the NTPC through its General Manager was in any way responsible for any acts related to the actual filling of the land on which the power project was to be erected. The only statement made on behalf of the complainant is that the NTPC entered into the agreement with the NBCCL for the purpose of filling the lands acquired for the purposes of construction of the power project. Therefore, I find that no offence under Section 379 of the Indian Penal Code is made out against the petitioner no. 1, NTPC and its Officers. 7. Reverting to the allegation made against accused nos. 3 and 4, I will again refer to the gist of the statements made at paragraph nos. 11, 12, 13, 14, 15, 19 and 22, wherein it has been stated that the accused 7 nos. 3 and 4 were stealthily excavating the sand from the sand ghats and with the connivance of the Assistant Mining Officer and Mining Inspector. It is alleged that they have paid royalty to the tune of Rs. 15 per cubic meter in stead of Rs. 25 per cubic meter, which is the royalty chargeable for the purpose of excavating sand. It is further specifically stated that the permits granted by the District Mining Officer have several anomalies, (a) it is said that permit no. 2 and 19 of 2004-05 have overwriting in them; (b) they do not bear the permit numbers; (c) permit nos. 16 and 17 have been signed by the Assistant Mining Officer on 09.02.2005; (d) the mining officer could not produce the register before the Land Reforms Deputy Collector; & (e) two of the permits were of the same day. These irregularities have been pointed out by the Land Reforms Deputy Collector when this Court called for a report in CWJC No. 4762 of 2005. As stated earlier, some defects have been pointed out in the agreement as well, which are part of the complaint petition, which indicate that in fact there were 22 agreements between accused nos. 3 and 4 with the villagers of village Sahanaura, Lakshmipur and Pachmahla. One of the defects is that the agreements of village Pachmahla do not bear the signature of the Officer of the Mining Department. The fact that some of 8 the agreements made with the villagers do not bear the signature of the Mining Officer is a debatable issue. The effect of such agreements would need to be thrashed out in a proper forum, and cannot be circumstance for coming to a finding that they would constitute a criminal offence. It has been emphasized on behalf of the complainant that once the ghats have been settled in his favour, the petitioners could not have excavated sand without paying royalty to the complainant. Besides which, it has been alleged that they have excavated sand instead of earth and as such have cheated not only the complainant, but the State Government too. 8. It has been vehemently argued on behalf of the complainant that any excavation work done along the River Ganges at Barh would necessarily mean that the person conducting the said excavation work would be liable to pay royalty to the settlee i.e. the complainant. 9. Counsel for the petitioners, on the other hand, submits that the petitioners had entered into an agreement with the NBCCL for filling up the earth on the lands on which the power project was to be constructed. The terms of the contract include the cost of the work as well as the royalty which the accused persons would pay to the State Government. The accused nos. 3 and 4 i.e. the subtleties were not supposed to pay the said royalty 9 out of their own pockets, rather it was part of the package and chargeable to the NBCCL, with whom they had entered into the agreement. On the basis of the aforesaid facts, it is submitted, that there could have been no intention on the part of the petitioners to cheat the State or anyone else. If they needed to use sand for the purposes of filling up the lands, they could have very well charged the contractors with whom they had entered into an agreement, under the head of royalty, which they would be required to pay. The fact that accused nos. 3 and 4 had paid over 12 crores of rupees as royalty to the State Government for the purposes of carrying out excavation work and above 3 crores of rupees to the land holders with whom they had entered into agreements would indicate that there could be no intention to commit theft. 10. Section 378 of the Indian Penal Code is the definition of theft, which reads as follows:- “378. Theft.- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” 11. It is quite clear in this case that the allegation do not fit in the definition of theft as the complainant cannot prima facie show that there was “intention’ to 10 dishonestly remove any property. In the present case, the property removed is “earth/sand” and the said property has been removed after making the payment of royalty to the mining authorities and the person from whose lands the earth has been removed. The dispute boils down to the fact, that the petitioner claims that the property removed is earth, whereas the complainant emphasizes that it is “sand”. The question whether earth or sand was removed from various locations in the villages described above could have been adjudicated by any higher authorities to the Mining Officer/the Assistant Mining Officer, if the complainant had filed his objection before the appropriate authority, taking into account the fact that the complainant has made allegation against the Mining Officer and the Assistant Mining Officer that they had in connivance with the accused nos. 3 and 4 (petitioners of Criminal Misc. No. 23560 of 2005) accepted the payment of royalty for earth instead of sand. At the most, it could have been alleged that the parties were cheating the State Government by paying a lesser amount of royalty then what was due. The procedure for taking action would be under Sections 35 to 46 of the Bihar Minor Mineral Concession Rules, 1972. The facts of this case do not constitute an offence under Section 379 of the Indian Penal Code. 11 12. In the circumstances, I quash the order dated 24.07.2006 passed in Complaint Case No. 1222 (C) of 2006 by the Judicial Magistrate, 1st Class, Patna as far as it concerns the petitioners before this Court. 13. These two applications are accordingly allowed. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 11TH JANUARY, 2011 N.A.F.R./ANAND