ASHIM KUMAR BANERJEE. J. - (1.) M.M.T.C. Ltd. is a Government of India undertaking having its office inter alia at Ruby House, India Exchange Place, Calcutta. The petitioner Abdul Sobur was the proprietor of M/s. Narayanpur Agri and Agricultural Development Project having its office at Burdwan. M.M.T.C. entered into an agreement for handling agency with the petitioner on June 26, 1996. On perusal of the agreement it appears that M.M.T.C. was in need of a storage space in Burdwan from where they could distribute fertilizer to the farmers. Under the agreement petitioner was to provide storage space where M.M.T.C. would keep the fertilizer under care of the petitioner. Petitioner would act as handling agent and would deliver fertilizer from their godown to the customers of M.M.T.C. as per the delivery orders issued by M.M.T.C. In turn, petitioner would get commission as per the agreement. There were other terms and conditions that the parties were to fulfil under the agreement. M.M.T.C. alleges that the petitioners failed to furnish stock statement as required under the agreement and thereby misappropriated fertilizer provided by M.M.T.C. to the petitioner for the purpose of keeping the same in trust and, in turn, deliver the same to the customers of M.M.T.C. M.M.T.C. lodged a complaint with the Police under Section 406, 409, 420 of the Indian Penal Code. The Police took cognizance and initiated proceeding as against the petitioner. The complaint was lodged on November 21, 1997. The charge sheet was submitted on January 24, 1999. The charges were ultimately framed by the learned Magistrate and trial commenced. At that stage, petitioner approached the learned Judge for his discharge by making an application. The learned Judge vide order dated May 18, 2010 rejected the said application filed on December 15, 2008 by observing that there were sufficient materials against the accused persons for presuming that he had committed an offence punishable under Section 409 read with Section 34 of the Indian Penal Code. Alternatively, they might be charged under Section 406/420 thereof as framed against them. The learned Judge of the special Court fixed dates of the trial, accordingly trial commenced. Being aggrieved by the said order dated May 18, 2010 the petitioner approached this Court inter alia praying for quashing of the said order dated May 18, 2010 as also the said proceeding.
(2.) MR. Sandip Ghosal, learned Counsel appearing for the petitioner contended as follows :- i) The dispute was civil in nature. The M.M.T.C. limited already initiated civil proceedings for appropriate relief. Hence, on the self-same cause of action criminal proceeding was not maintainable. ii) The charge sheet would itself show that the alleged incident did not constitute an offence being committed by the petitioner. iii) Substantial payments were made from time to time and last of such payment was made in 2010. Hence, M.M.T.C. was not entitled to proceed with the criminal case simultaneously. Elaborating his submission Mr. Ghosal relied on a copy of the interlocutory application filed in this Court in its Original Side. On perusal of this said application it appears that a civil suit making money claim for rupees fortysix lacs twenty three thousand approximately was filed by M.M.T.C. as against the petitioner on account of outstanding dues. In the said petition M.M.T.C. claimed that petitioner was their dealer in respect of fertilizer and the said sum was due and payable as outstanding on account of unpaid price of the fertilizer. Mr. Ghosal further contended that since M.M.T.C. chose to proceed before the civil forum on the identical cause of action criminal proceeding was not maintainable. He also relied on correspondence exchanged between the parties that would show that substantial payments were made from time to time as referred to above.
(3.) OPPOSING the application Mr. Sib Shankar Banerjee, learned counsel appearing for M.M.T.C. contended as follows :- i) Against a single transaction there might be civil as well as criminal liability. Hence, initiation of civil action would not create any bar in proceeding against the petitioner before the criminal Court. ii) The FIR was lodged in 1997. The petitioner did not raise any objection at that stage. It was only when the trial was about to commence the petitioner approached this Court and the learned Judge was right in rejecting such application. iii) Alleged part payments relied on by the petitioner were on account of proceedings initiated under Section 138 of the Negotiable Instrument Act pending before the criminal Court as would appear from the petitioner?s letter dated August 27, 2010. iv) The civil proceeding referred to above, was for a different transaction. Hence, no reliance could be placed thereupon. v) The instant cause of action arose from a breach committed under the agreement dated June 27, 1996 which constituted both civil and criminal liability and M.M.T.C. was entitled to adopt both the courses. vi) Entrustment of fertilizer under the said agreement would amount to bailment of goods and petitioner was a bailee. Misappropriation of such goods would amount to criminal breach of trust attracting Section 406 and Section 409 in view of the goods being belonged to M.M.T.C, a Government undertaking. Elaborating his argument Mr. Banerjee relied on a bunch of documents filed in Court with copy served upon Mr. Ghosal. The said bunch be treated as a part of the record. It appears that an arbitration proceeding was initiated in respect of the civil liability. An award was passed for rupees fifty-eight lacs seventy four thousand one hundred and fifty seven. He also contended that initiation of the said arbitration proceeding which culminated in an award could not absolve the criminal liability of the petitioner for which the criminal proceeding was initiated.;