J.B.GARG,J - (1.) A case has been registered vide FIR No. 16 on 19-7-1992 at Chandigarh mainly against Rakesh Kumar partner of M/s Kay Kubeke of Chandigarh for obtaining steel of different diameter in excess of the requirement and not utilising it while building residential quarters for the staff of the Defence Audit Department in Sector 32, Chandigarh. The FIR and the proceedings which have arisen out of it have been challenged by means of the present petition under Section 482 of the Code of Criminal Procedure.
(2.) THE relevant part of the FIR is reproduced as under :- "The information has been received that Type II 24 No. Type I and Type III 24 Nos. and Type IV 6 Nos. quarters are being constructed for the officials of the Defence Audit Department in Sector 32, Chandigarh by the PWD Chandigarh Circle. THe contract for the construction was awarded to M/s Klay Kubeke House No. 121, Sector 40A, Chandigarh which is represented by Shri Rakesh Kumar w.e.f. October, 1989. A point surprise check was carried out on 13-3-1992 by officers of the CBI Chandigarh Branch and the CPWD Chandigarh and the (sic) of steel was found as under :- (1) steel issued to the contractor: 171.799 MT. (2) steel required as per contract: 104.60 MT. (3) consumed in the work: 110.533 Mt. (4) balance supposed to be with the contractor (1-3): 53.26 MT. (5) Hence the steel found short a site: 53.266 MT. It was found that the actual requirement of steel was 104.66 MT. whereas 171.799 was issued to the contractor much in excess of the requirement. Shri Rakesh Kumar was the partner of M/s Kay Kube Ke and was the trustee of the Government Store under the direct supervision of Shri K.S. Matharoo, Sawant Ram, R.K. Wadhwa and Ashok Kumar, Engineers at site during the relevant period of their posting. The contractor, Shri Rakesh in conspiracy with S/Shri K.S. Matharoo, Sawant Ram, R.K. Wadhwa and Ashok Wadhwa and Ashok Kumar cheated the CPWD Department and misappropriated the Government Store, steel weighing about 53.266 MT. worth about Rs. 6,00,000/-. Thus, prima-facie, the commission of offence under Section 120(B) r/w Section 420 IPC, Section 420 IPC and 13(1)(d) read with Section 13(2) of PC Act, 1988 against S/Shri K.S. Matharoo, Sewant Ram, R.K. Wadhwa, Ashok Kumar and Rakesh Kumar, contractor, is made out. A regular case is, therefore, registered and entrusted to Shri A.K. Anand, Inspector, SPP, CBI, Chandigarh, for investigation." On behalf of the petitioner it has been alleged that there is a clause in the contract according to which the material received in excess supply is required to be returned to the Department after completion of the contract and before the finalisation of bills. In case of failure on the part of the contractor to return the un-used material to the Department, it could charge double the rate of material supplied or the market price of the material supplied in excess whichever is higher; that the cement and steel were un-controlled items and were available in the open market; that there was also an arbitration clause and the dispute between the parties as regards to the shortage of material etc. was to be referred to the arbitrator to be appointed by the Chief Engineer, Central Public Works Department etc.; that the indents are prepared at the request of the Junior Engineer and the Sub Divisional Engineer and thereafter, the material is supplied by the SDO (Stores) and at the end of every month the Junior Engineer certifies the consumption of the material; that the price of the material fixed as per contract is debited in the account of the contractor and it amounts to sale of the material to the contractor and the price of the material supplied is adjusted at the time of the finalisation of the bills or in other words the contractor for all intents and purposes becomes the owner of the material supplied to him by the Department; that the ingredients of cheating were not there especially when there is a provision to recover the price at double the rate.
(3.) IN reply it has been averred that the petitioner contractor cheated the CPWD on 4-3-1922 by returning sub standard steel measuring 9.335 Mt by procuring the same from Industrial Area, Chandigarh, that surprise check was conducted on 13-3-1992 by the CBI and it revealed that there was mis-appropriation of 1991.12 kgs of steel; that the contractor does not become the owner of the steel at any stage and it remains absolute property of the Government according to clause 10 of the agreement.;