- (1.) This criminal appeal has been preferred against the impugned judgment and order dated 11.11.2008 passed by the High Court of Madhya Pradesh at Jabalpur in Misc. Criminal Case No. 5521 of 2008 dismissing the application of the Appellant filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as Code of Criminal Procedure) by which the Appellant had sought quashing of a complaint under Sections 420 and 120-B of the Indian Penal Code, 1860 (hereinafter referred to as the 'Indian Penal Code') filed by the Respondent No. 1.
(2.) Pacts and circumstances giving rise to this appeal are that: A. On 27.2.2002, a partnership firm in the name and style of "M/s. Ashok Traders" (hereinafter referred to as "firm") was constituted and a partnership deed was executed on the same date with the intention to carry on business of liquor. The firm consisted of seven partners. B. The said partnership firm was reconstituted and a deed dated 5.3.2002 was executed inducting among others the Respondent No. 1, namely, Shri Ajay Arora as a partner of the firm and the said firm now consisted of twelve partners. As per Clause 10 contained in the deed, the partnership firm was to be terminated on 31.3.2003. C. The said firm participated in the excise contracts for Bhopal District for the year 2002-2003 and had been a successful bidder. The excise auctions for the year 2003-2004 was held on 6.3.2003 and the said firm participated in the auction and being a successful bidder, the contract was awarded to it. D. The Respondent No. 1 filed a complaint alleging that while negotiating and accepting the contract for the year 2003-2004, the reconstituted partnership deed dated 5.3.2002 was utilised, wherein the said complainant-Respondent No. 1 had also invested a huge amount, but the said deed was subsequently replaced by a forged/fabricated deed dated 6.3.2003 in which the Respondent No. 1 was not a partner. The Respondent No. 1 could acquire the knowledge of such facts at a much belated stage when he preferred to enter into certain transactions with the bank. E. Aggrieved, Respondent No. 1 filed a Criminal Complaint Case No. 3968 of 2003 on 18.7.2003 against nine partners of the reconstituted firm alleging that the said partners had replaced the Deed of Partnership dated 5.3.2002 in the bank, and a forged partnership deed dated 6.3.2003 was implanted in the excise office in its place to deprive him of the profits of the firm. F. The Respondent No. 1 also filed a complaint before the Chief Secretary, Government of Madhya Pradesh in this regard. The Chief Secretary sought a report in that respect from the Office of the Collector (Excise), District Bhopal. The Collector (Excise), District Bhopal submitted a report dated 4.9.2003 stating that the said contract had been awarded on the basis of partnership deed dated 6.3.2003 and there was no substance in the allegation made by the Respondent No. 1 that the partnership deed dated 5.3.2002 had been replaced by partnership deed dated 6.3.2003. G. Aggrieved, the Respondent No. 1 filed Writ Petition No. 28262 of 2003 before the Madhya Pradesh High Court seeking various directions for inquiry in this regard and the High Court vide order dated 5.1.2004 asked the Respondent No. 1 to make a detailed representation to the Commissioner of Excise and if such a representation was filed, the Commissioner of Excise was directed to decide the same. In pursuance of the said order, the Respondent No. 1 filed a representation dated 10.1.2004 before the Excise Commissioner. H. After conducting the inquiry, Shri B.K. Vyas. Addl. Excise Commissioner submitted a report dated 2.12.2005, to the effect that the excise contract was granted to the said firm on the basis of the partnership deed dated 5.3.2002 and the same stood replaced later on by partnership deed 6.3.2003 and the Appellant, being a District Excise Officer, was responsible for such replacement as it was not practically possible to do so without his connivance. I. The Respondent No. 1 filed Writ Petition No. 2617 of 2007 before the Madhya Pradesh High Court seeking a direction for initiation of departmental proceedings against the Appellant on the basis of inquiry report dated 2.12.2005, however, as the said inquiry report was not considered to be sufficient by the authorities for taking further action, the case was referred to the Principal Secretary to the Excise Commissioner vide letter dated 4.12.2006 for conducting further inquiry into the matter. J. Shri D.R. John, Deputy Commissioner of Excise, conducted the inquiry and submitted an inquiry report dated 1.5.2007 recording the findings similar to the report dated 2.12.2005. The view expressed therein is that the Appellant being the head of the District Excise Office, Bhopal, was indirectly responsible. K. The Government of Madhya Pradesh vide letter dated 23.8.2007 informed the Excise Commissioner that no ground was found to initiate the departmental inquiry' against the Appellant. L. In the aforesaid background, the Respondent No. 1 filed a complaint on 21.1.2008 against the Appellant and two others under Sections 420, 467, 468, 471 and 120-B Indian Penal Code in the court of Chief Judicial Magistrate (hereinafter referred to as 'CJM'), Bhopal. The CJM recorded the statement of the complainant and after considering the pre-charge evidence, vide order dated 10.4.2008, registered the case against the Appellant and two others under Sections 420 and 120-B Indian Penal Code. M. It may also be pertinent to point out that the Respondent No. 1 also filed a complaint against the Appellant before the Lokayukta, that was dismissed vide order dated 21.4.2008. N. Aggrieved, the Appellant filed an application under Section 482 Code of Criminal Procedure for quashing of the complaint dated 21.1.2008. However, the High Court dismissed the said application vide impugned judgment and order dated 11.11.2008. Hence, this appeal.
(3.) Shri Ashok Shrivastava learned Senior counsel appearing for the Appellant has submitted that the High Court has committed an error in dismissing the application of the Appellant as the complaint filed by the Respondent No. 1 is nothing, but an abuse of the process of the court. The Appellant stood exonerated in various departmental enquiries initiated on the complaint of the Respondent No. 1. More so the High Court failed to appreciate that the complaint had been filed alter a delay of 5 years against the Appellant, though against the alleged partners of the firm, the complaint had been instituted in 2003 itself. The delay in filing the complaint by itself was a good ground for quashing the same. The complainant-Respondent No. 1 was fully aware of all the developments and there is nothing on record to show that the contract had been obtained by the said firm on the basis of the partnership deed dated 5.3.2002, and it had been subsequently replaced by the partnership deed dated 6.3.2003. The Appellant by no means can be held responsible directly or indirectly for any such act. The report dated 2.12.2005 submitted by Shri B.K. Vyas and subsequently by Shri D.R. Johri dated 1.5.2007 had not been accepted by the Stale Authorities, being based on surmises and conjectures. Thus, the appeal deserves to be allowed and the complaint dated 21.1.2008 is liable to be quashed.;