M.Wahajuddin - (1.) THE applicants have been summoned by the Chief Judicial Magistrate, Dehradun under Sections 120-B, 420, 469 and 471 IPC as per order dated 17-6-1980, Annexure C-1 of the petition. THEy have been summoned in pursuance of a private complaint dated 1-5-1980 filed by the opposite party under Sections 120-B, 420, 463, 468, 471 and 109 IPC, Annexure A. THE applicants preferred a revision in the court of Additional Sessions Judge Dehradun, against the aforesaid order of the Magistrate which was also rejected as per order dated 24-11-1980, Annexure C-2. THE applicants have prayed that the criminal proceeding in pursuance of the complaint and the aforesaid two orders may be quashed.
(2.) IT would appear that the opposite party entered into a contract with CIMMCO acting through applicant no. 6, Sri. R. C. Sethi, Resident-cum-Erection Engineer of CIMMCO. Later a dispute developed between the parties to the contract regarding loading and unloading charges, stacking, watch and ward etc. and letters were exchanged in that connection. The contention of the applicants is that the entire matter relates to a dispute regarding terms of contract and contractual liability and it is purely a dispute of civil nature and the resort to criminal prosecution by opposite party no. 2 is an abuse of the process of law, just to victimise and harass the applicants and coerce them to make payments. It is further urged that the complaint is totally vague as to when and how cheating was committed and forgery was done and in what manner and by whom. The arguments on behalf of the opposite parties were commenced by Sri Kesho Sahai, Advocate and later resumed by Sri Murli Dhar, Advocate and then again concluded by Sri Kesho Sahai, Advocate. I invited arguments particularly in respect of the aforesaid matters raised by the applicants' counsel. Sri Murli Dhar Advocate urged that in addition to the materials before the Magistrate, who passed the order summoning the accused persons, I may also look into other documents filed here in Section 482 CrPC proceedings. The learned counsel for the applicants also desired that I may look into one of the letters sent by the opposite party in reply to which the letter Annexure D3 dated 15th July, 1978 was sent by applicant no. 3. Sri Kesho Sahai who finally resumed and concluded the arguments made the stand of the opposite party no. 2 clear urging that the court may look into only those materials which were before the Magistrate when he passed the summoning order and not additional materials which may be furnished here. I am also of the view that this Court while exercising powers under Section 482 CrPC is not to function as a Court of trial so it will not examine what further evidence in support of the case would be led by the complainant or what evidence in defence of the case would be led by the applicants. I may therefore confine to the perusal and scrutiny of the complaint, the statements under Sections 200 and 202 CrPC as well as the documents Annexure D1 to D10 of the affidavit, as they were filed before the Magistrate also, and on their basis I may examine whether any prima facie case under the various sections under which complaint has been filed is disclosed. The law is well settled that where no prima facie case is disclosed the Court may quash the proceedings while if it is satisfied that any prima facie case is disclosed it may decline to function as a trial court and should reject the application under Section 482 CrPC.
(3.) THE complaint is Annexure A of the application. Paragraphs 1 and 2 of the complaint recite that the CIMMCO is engaged in the work of fabrication and erection of steel structures at Chilla Project, Hard war and accused nos. 2 to 4 and 6 are the officials of the Company engaged in the day to day working and responsible for the affairs of the Company. Paragraph 3 recites that they all entered into a conspiracy to cheat the complainant and in pursuance of the same accused no. 6, namely, R. C. Sethi, induced the complainant to undertake the work of cartage of gate parts from Jwalapur Rail Head to Chilla Power House. In para 4 it is stated that the complainant agreed to the same but work of loading and unloading, stacking etc. was not included in the rates. Para 5 recites that the complainant was assured that separate payment will be made for such work. THE complainant fell a prey to the fraudulent inducement. It further recites that accused persons 3 and 4 passed all the bills submitted by the complainant earlier. In paragraph 6 of the complaint it is recited that in furtherance of the conspiracy to deprive the complainant of his lawful dues and thereby to cause unlawful gains to the Company, the accued caused a huge amount accumulated and never paid inspite of reminders. In para 7 it is recited that at the time of the conspiracy the accused forged an order of June 3, 1978 with a view to cheat the complainant and misappropriate the amounts lawfully due to him though the order was never in existence at the time of original offers were made and the work started, and the complainant was for the first time informed of it when the counsel, accused no. 5 gave the notice and in consequence of the said forged and fabricated order, the accused misappropriated a sum of Rs. 37, 697. 14 p. Paras 9 and 10 relate to another dispute concerning detention of Hoist and are not relevant to the case. In para 11 a prayer was made that the accused person be punished under Sections 120-B, 420, 463, 468 and 109 IPC. Annexure B1 is statement under Section 200 CrPC. In paragraph 2 of the statement the complainant deposed that defraudly contract for transporting gate parts from Jwalapur Rail Head to Chilla Power House was given by the accused person through Erection Engineer Sri R. C Sethi and the complainant fell prey to the fraud accepting Theka. In the work loading and unloading, stacking etc. were not included and the complainant made it clear on 29-5-1978. He was later asked to do that work with an assurance of separate payment. The applicant R. Swarup had certified the rates for the same. A huge amount is due to the complainant which has not been paid. The complaint further stated that a fictitious order dated 3-6-1978 was fabricated by the accused persons to misappropriate the amount due to the complainant. The counsel Sri Dharam Gopal Chaturvedi is well aware of it and the extract of aforesaid order was sent to him in the colour and disguise of the notice given by the counsel, which Sri Chaturvedi declined to withdraw. He also stated that Rs. 37.697.14 p. is due to the complainant. The complainant detained one Hoist according to the terms of the contract but the accused person got it back in an unlawful manner. Had false assurance not been given the complainant would not have fallen a prey to the fraud. It is further stated that by deceit and forgery the accused persons have cheated the complainant to the tune of Rs. 37,697.14 p. One R. N. Chaturvedi was also examined in support under Section 202 CrPC vide his statement Annexure B-2. According to him on 29-5-1978 he was returning back from the office of Adishasi Abhiyanta, Civil Nirman Khand Sichai Vibhag when he saw the car of Dharam Vir Bedi, he stopped to trace him out, being desirous to accompany him in his car. He went to him inside and Sri Bedi offered him to give him lift. According to him, three more persons were with Sri Bedi and Sri Bedi introduced them, namely, Sri R. C. Sethi, Sri Keshav Dutt and Sri Sudaula. Sri Bedi was copying a letter. After completing the letter he took out a printed form with the letter and handed both of them to Sri Sethi who after going through the same signed and approved. According to him Sri Bedi then observed that full co-operation will be extended and further told that one employee is always at the Laxmi Hotel near the Station concerned and as soon as goods arrive that man may be informed to arrange for the vehicle and Sri Sethi may arrange for labourers etc. so that time may not be wasted in loading and unloading or demmurage may not be caused and Sri Sethi then observed that he has full labour equipment and Sri Bedi will not be inconvenienced nor there would be any demmurage caused.;