T.VAIPHEI, J. - (1.) THE prayer in this writ petition is two-fold:- (i) to quash F.I.R. dated 12.2.2009 lodged by the respondent No.1 with the Superintendent of Police, Criminal Investigation Department, Gangtok, Sikkim and (ii) to quash the summons issued by the Senior Superintendent of Police, CID, PHQ, Gangtok, Sikkim (respondent No.3) under Section 160 CrPC directing the appearance of the petitioner before the Enquiry Officer at CID Office, Gangtok, Sikkim.
(2.) THE facts giving rise to the writ petition, as pleaded therein, are that the petitioner is a manufacturer of Ferro Silicon at its factory at Byrnihat, Meghalaya while the respondent No.1, is a private limited company having its registered office at Mamrin, Namchi District, South Sikkim. Pursuant to the telephonic request made by the respondent No.1 for purchase of Ferro Silicon, the petitioner-company on 20.10.2008 sent a quotation through Fax message for supply of 100 M.T. of the Ferro Silicon lumps prime grade containing all particulars including the price thereof. THE respondent No.1, on receipt of the quotation, sent the purchase order dated 20.10.2008 for supplying the same for a price of Rs.79,84,109 FOR Siliguri. Having received the payment of Rs.40 lacs, the petitioner dispached 35 M.T. of Ferro Silicon (full truck load) on 23.10.2008 through B.H. Roadways Corporation vide L.R. No.386 dated 23.10.2008 with all the necessary documents including the Iorry consignment note dated 23.10.2008. THE fully laden truck reached Siliguri on 27.10.2008, and the representative of the respondent No.1 took delivery of the consignment after weighing the goods at the Mohan Weigh Bridge, Sevok Road, Siliguri on 27.10.2008 in which the weight of the material was found to be 35,150 kg as per the copy of the weigh bridge slip sent to the petitioner. No complaint was initially made by the respondent No.1 to the petitioner-company on the quality or quantity of the goods including any defect or damage in connection therewith. According to the petitioner-company, on 30.10.2008, three days after taking delivery of those goods, it was surprised to receive a letter from the respondent No.1 requesting joint inspection. It is claimed by the petitioner-company that this device was employed by the respondent No.1 with the mala fide intention of backing out from its purchase order as the price of the ordered goods had come down abruptly in the market. THE petitioner accordingly sent its representative to Sikkim to show its bona fide keeping in view their hitherto cordial relationship, and the joint inspection was done on 3.11.2008 at Sikkim. It is the further case of the petitioner-company that after the joint inspection, a report not reflecting the result of the joint inspection was prepared by the respondent No.1, which was protested by the representative of the petitioner-company, namely, Mr. Mahesh Tiwari, saying that some of the entries made therein were outside the scope of the joint inspection, but he was forced to put his signature on that report bearing dated 3.11.2008. When its representative returned to Guwahati and narrated the strong-arm tactic used by the respondent No.2 against him at Sikkim to the petitioner-company, it immediately sent a Fax message to the respondent-company on 12.11.2008 protesting their highhandedness and at the same time requesting them to deposite the balance payments so as to enable them to dispatch the balance quantity of the materials. In reply, the respondent-company in their letter dated 18.11.2008 followed by another letter dated 24.11.2008 questioned the quality of the materials sent by the petitioner on the basis of the joint analysis report dated 3.11.2008 and indicated that the balance quantity so ordered by them be treated as cancelled and requested them to refund the differential amount of Rs.1,199,012/- at the earliest, which, according to the petitioner, was a device to back out altogether from the contract. Several correspondences were thereafter exchanged between the parties, but the misunderstanding/disagreement persisted. On 28.2.2009, the petitioner-company received a Fax message sent by the respondent No.3 addressed to the petitioners No.2 and 3 to be treated as a summons for their appearance before the Enquiry Officer, CID Office, Gangtok, Sikkim in connection with the complaint lodged by the respondent-company against them for alleged supply of sub-standard quality of Ferro Silicon and of the non-payment of the balance amount of Rs. 1,199,012/-. The petitioner-company thereafter requested the respondent No.3 to send them a copy of the said complaint, but no copy was sent. As they believed that the respondent No.3 was misled by the respondent-company with an intention to harass them, they then sent a detailed letter dated 10.3.2009 (Annexure-M) appearing him of the true facts and circumstances of the case and of the absence of any criminal act on their part on the basis of the complaint so lodged and requested him to drop the investigation and not to proceed further against them thereafter. Though the respondent No.3 did not send a copy of the complaint/FIR, the petitioner-company managed to obtain a copy of the FIR through internet dated 12.2.2009 from a person known to them. Contending that no criminal offence is made out against them in connection with the said complaint lodged by the respondent-company, this writ petition has been filed by the petitioner-company for the reliefs indicated earlier. The respondents-company and the respondent No.3 made their appearance through their respective counsel. Affidavits-in-opposition have also been filed by them separately. The stance taken by the respondent-company is that the materials supplied by the petitioner-company were rejected by them as they were found to have silicon percentage of only 68.19 whereas it should have been in the range of 70 to 75% and they were also in wet condition with 5% fines. They stoutly deny that the goods were found intact by their representative on the date of delivery or that no complaint was given to the petitioner-company regarding the presence of defects or damage in those materials. They also deny that their letter dated 30.10.2008 contained some unusual remarks as well as unusual conduct on their part or that they were questioning the quality of the materials so supplied with the sole intention of backing out from the purchase order: the petitioner-company were, on the contrary, making absurd statement to cover up their act of supplying sub-standard materials. They assert that the petitioner-company were obliged to supply the purchase materials, which should contain silicon grade of 70 to 75%, but it was found, upon inspection, to have contained only 68.10% of silicon and the entire lot of the goods having powdery tendency and that out of the total goods supplied by them, 30% of the said goods had turned to powder due to the soft nature of the silicon. The answering respondent also deny that the findings stated in the report after the joint inspection report was not the actual result of the joint inspection or that some statements were inserted therein which were beyond the scope of the joint inspection or that the representative of the petitioner-company protested against those entries as they were outside the scope of inspection or that their representative had to put his signature under duress and pressure of the respondent-company. It is pointed out by the answering respondent that the petitioner-company has filed Title Suit No.102 of 2009 against the respondent-company for a declaration that the latter was bound to lift the balance quantity of 65 M.T. Ferro Silicon lumps from their factory by paying the balance amount. The respondent-company also points out that whereas they remitted a sum of Rs.40 lacs to the petitioner-company for supply of more than 50 MT of the materials out of 100 MT ordered for, the latter supplied only 35 MT of the goods, the value whereof works out to be Rs.28,00,988/- only while they still retained Rs.1,199,012/- without supplying the balance worth that amount. These are the sum and substance of the case of the answering respondents. It is contended by them that the writ petition has been filed by the petitioner-company with an ulterior motive and in order to frustrate the ongoing investigation, and the same is liable to be dismissed. The case of the respondent No.3, as projected in his affidavit-in-opposition, is that investigation was initiated on receipt of the complaint dated 21.2.2009 for alleged supply of sub-standard quality of Ferro Silicon and for non-refund of Rs.1,199,012/- without naming the petitioners as accused. According to respondent No.3, preliminary investigation has become necessary as the allegation involves financial irregularities, which is being done in accordance with law, and the writ petition, being deviod of merits, is liable to be dismissed with cost.
(3.) AT the outset, Mrs. N. Hazarika, the learned counsel for respondents 1and 2, has raised preliminary objection against the maintainability of the writ petition by contending that this Court has no territorial jurisdiction to entertain the case as the FIR was lodged at Gangtok, Sikkim and not at Shillong even though the petitioners are residents of Meghalaya. It is her submission that the sub-standard goods were detected at Gangtok after joint inspection by the respondent-company and the representative of the petitioner, and the cause of action for writ petition, therefore, arose at Gangtok, Sikkim and not in any part of Meghalaya. She thus strenuously urges this Court to dismiss the writ petition at the very threshold, or, at least, direct the petitioner-company to approach the High Court of Sikkim for appropriate relief. Opposing the submissions of the learned counsel for the respondent-company, Mr. R.L. Yadav, the learned counsel for the petitioner-company, maintains that the FIR/complaint itself reveals that a part of the cause of action, if not the whole cause of action, certainly arose at Byrnihat, Meghalaya thereby conferring territorial jurisdiction upon this Court to entertain this writ petition. He relies on the decision of the Apex Court in Navinchandran N. Majithia Vs. State of Maharashtra, (2000) 7 SCC 640 and the decision of the learned Single Judge of this Court in Bhabesh Ch. Baroowa Vs. Escorts Finance Ltd., 2005(1) GLT 67, in support of his contention. The question of territorial jurisdiction under Article 226(2) of the Constitution of India came up for consideration before a three-Judge Bench of the Apex Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu, (1994) 4 SCC 711 wherein it has been held: (SCC pp. 716-717, paras 5-6) "5. Clause (1) of Article 226 begins with a non obstante clause- notwithstanding anything in Article 32- and provides that every High Court shall have power 'throughout the territories in relation to which it exercises jurisdiction', to issue to any person or authority, including in a appropriate cases, any Government, 'within those territories' directions, orders or writs, for the enforcement of any of the rights conferred by Part III or any other purpose. Under Clause (2) of Article 226 the High Court may exercise its power conferred by Clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that the High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. This is at best its case in the writ petition. 6. It is well settled that the expresion 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kaur Vs. Partab Singh Lord Watson said: '... the cause of action has no relation whatever to the defense which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.' Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an inquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 8, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court." ;