- (1.) G. B. Singh, J. This is petition under Section 482, Criminal Procedure Code to quash the proceedings, pending in the Court of Chief Judicial Magis trate, Lucknow, on the basis of a complaint for offences under Sections 406 and 409, I. P. C. , filed by U. P. State Electricity Board, opposite party No. 2 against the petitioners.
(2.) VIRENDRA Prakash Gupta and Mahendra Kumar Jain, petitioners are partners/proprietors of M/s. Shyam Enterprises, Swarup Nagar, Kanpur. The State Electricity Board invited tenders in the year 1978 for re-rolling of rail pieces, joist pieces etc. into Angles and Flats. The petitioners submitted their tender, dated 6-11-1978 in that connection. Their tender was accepted and a Deed of Agreement, Annexure I was executed in that connection on 16-1-79. The petitioners were accordingly permitted to collect scrap 300 metric tons from different storages of the Electricity Board for re-rolling into Angles and Flats. The petitioners collected the aforesaid scrap but could not complete re-roling of the entire scrap in time. They partly supplied Angles and Flats weighing 13. 125 metric tons, whereas they had to give 300 metric tons finished goods in accordance with the terms of the Agreement. Some correspondence took place between the parties thereafter but the balance could not be supplied by the petitioners. U. P. State Electricity Board, therefore, filed complaint against the petitioners for offence under Sections 406 and 409, I. P. C, alleg ing that they have dishonestly misappropriated and converted the scrap to their own use. On the basis of the complaint, the petitioners were summoned for these offences by the Chief Judicial Magistsate, Lucknow, by an order dated 10-5-1982. The petitioners thereafter filed the present petition for quashing the aforesaid proceedings initiated on the basis of the complaint. Heard learned counsel for the petitioners as well as learned counsel for U. P. State Electricity Board and the State. The point argued by the learned counsel for the petitioners is that the complaint does not make out any case against the petitioners and as such the proceedings initiated on the basis of the complaint are liable to be quashed. There is much force in this contention. The facts are not much in dispute. The petitioners filed affidavit in support of their application under Section 482, Criminal Procedure Code, giving out all necessary details. The U. P. State Electricity Board, opposite party No. 2, filed counter-affidavit thereto. If they are ready together alongwith the Agreement, Annexure 1 and Complaint, Annexure 7, it becomes undisputed that the opposite party No. 2 supplied 300 metric tons of scrap, namely, Rail pieces, Joist piece etc. and the price of that scrap was assessed at Rs. 1,500 per metric ton. The value of this scrap, thus, according to the Agreement came to Rs. 4. 5 lacs and petitioners deposited a Bank Guarantee of Rs. 4. 5 lacs in the shape of security towards the price of the same. It is also undisputed that there was part delivery of finished goods and the rest could not be supplied by the petitioners and their prayer for extension of time was refused by the U. P. State Electricity Board. It has also become undisputed that thereafter, the U. P. State Electricity Board encashed the said Bank Guarantee of Rs. 4. 5 lacs and there is an admission to this effect in Para 14 of the counter-affidavit. It is provided in Para 4 of the Deed of Agreement, Annexure 1, that in case of short delivery of finished material to the Board, the recovery was to bi made towards the cost of scrap at the rate of Rs. 1,500 per metric ton of scrap from the security submitted by the firm. It seems that the U. P. State Electricity Board relying upon this clause, realized the price of the scrap from the security submitted by the petitioners. After this realization of the price of the scraps supplied, the property in goods passed to the petitioner and, thus, the transacation amounted to sale. In a case of sale where the property on goods passes to the purchaser, he cannot be held liable for an offence under Section 406 or 409, I. P. C. because one cannot misappropriate his own property. Thus the dispute between the parties which is to be resolved is of civil nature and the same shall be decided on the Arbitration proceedings as the matter undisputedly been referred to Arbitrator and the matter is pending before him since long.
(3.) IT is true that the view where remedy under civil law is available, Section 406, I. P. C. is inapplicable cannot be accepted. The reason is that a criminal prosecution is not completely barred because the civil remedy is available ; Criminal law and Civil law can run side by side. But the facts of the present case clearly show that the necessary ingredients of offences under Section 406, I. P. C. namely misappropriation or conversion with dis honest intention is absent. There was no question of misappropriation of the scrap till the petitioners were pressing for extension of time for supply of the remaining finished goods. Thereafter the opposite party No. 2 realised its price by encashing the Bank Guarantee. When the complainant encashed the Bank Guarantee furnished by the petitioners equivalent to the price of the scrap supplied, the transaction of sale became complete and the question of misappropriation of the scrap did not arise. Thus, a necessary ingredient for the offences under Sections 406 and 409, I. P. C. is absent in the present case and prosecution initiated on the basis of the complainant, is liable to be quashed. It was argued by the learned counsel for the U. P. State Electricity Board that allegations made in the complaint alone should be taken into account while disposing of the present petition and if they are taken as correct, case for the offences under Sections 406 and 409, I. P. C. is made out and as such the proceedings cannot be quashed. In support of this agreement, he placed reliance upon Pratibha Rani v. Suraj Kumar and another, 1985 Supreme Court Cases (Criminal) 180. In my opinion this contention cannot be accep ted in the circumstances of the case. Since the parties have filed affidavit and counter- affidavit relating to the facts involved, they can be taken into account alongwith the complaint for the disposal of the petition, under Section 482, Cr. P. C. In the complaint, the opposite party No. 2 has not given all the necessary facts. They have come out in the affidavit and counter-affidavit and the petition can undoubtedly be decided on the basis of the admission or undis puted facts. Thus the complaint alone cannot be made sole basis for disposal of the petition in the special circumstances of the case,;