A.P.CHOWDHRI,J - (1.) THIS is a petition under Section 482 of the Code of Criminal Procedure seeking to quash FIR No. 48 of 1989 under Section 406 IPC, Police Station South, Chandigarh.
(2.) FACTS necessary for the disposal of this petition are that the two petitioners took a contract for running different Government kilns on Government land in the Union Territory of Chandigarh on yearly basis. Terms of the contract have been given in letter of the Executive Engineer, Annexure P-1, while allotting the contract. There is no dispute that similar contract was entered into between the Executive Engineer, C.P.C. Division No. 6 and the other petitioner with regard to other brick kiln. One of the terms was that the contractor was to supply stipulated number of bricks of first class and radiated bricks of first class at specified rates to the Department. Under clause 9, there was to be no restriction in disposal of rejected bricks and the same shall be released by the Department within 45 days from date of unloading. According to clause 8, in case the accepted bricks were removed by the Contractor in an unauthorized manner, then the Department was at liberty to make the recovery at penal rates, namely double the issue rate of bricks. This was in modification of clause 27 of the notices inviting tenders. According to clause 27 reproduced in paragraph 8 of the petition, two actions were possible against the Contractor removing the bricks and tiles in unauthorised manner, namely :- (i) Recovery of amount at double the issue rates of bricks/tiles; (ii) Suitable action as per law, as may be deemed fit by the Engineer-in-charge; Under clause 8, already referred in the contract, however, the only remedy provided was recovery at the penal rate i.e. double the issue rates of bricks. The petitioners are alleged to have removed in unauthorised manner four lakhs bricks which were supplied to Messrs Raja Ram and Sons on the construction work, in M.E.S., Houses in Sector 47, Chandigarh. At the time of checking two lakh bricks were still lying at that site. This was in violation of the terms of the contract. The Executive Engineer, C.P. Division No. 6 wrote a complaint, Annexure P-3 on 22.2.1989 to Senior Superintendent of Police, Chandigarh, on the basis of which the aforesaid FIR was entered under Section 406, I.P.C. at Police Station South against the two petitioners. The contention of learned Counsel for the petitioners is that by making an express contract the only remedy open to the Department was recovery at penal rate i.e. double the issue rates of bricks which are alleged to have been unauthorisedly removed from the brick-kiln. By, necessary implication, according to the learned Counsel, the Government had debarred itself from availing any other remedy. It was also submitted that the facts mentioned in the FIR do not disclose the commission of any offence. If at all, the facts disclosed a breach of a contract for which remedy was provided in clause 8 of the contract. This was of a civil nature. He, therefore, urged that resort to criminal proceedings when the dispute was purely of a civil nature was an abuse of the process of the Court and the FIR deserved to be quashed.
(3.) AFTER hearing learned Counsel for both the parties. I am unable to accept the contention of learned Counsel for the petitioners. In the letter of allotment of contract, Annexure P-1, the brick-kilns in question were described as departmental kilns. Admittedly, the land on which the brick-kilns are situate, belongs to the Government. According to paragraph 7 of the petition itself, bricks are manufactured at the brick kilns under supervision and control of the officials of the Department. Paragraph 7 deserves to be reproduced in extenso. It reads :- "That since the petitioners are running brick-kilns on land provided by the Government, the Government officials maintain complete record regarding moulding, loading, burning, unloading of bricks, stock of coal and the brick-kiln including its complete record including raw material, bricks under process of manufacturing remain under their constant supervision and apart from other officials for maintaining record, like Supervisor, Work Inspector, Sectional Officer. Sub-Divisional Engineer and Executive Engineer visit the site from time to time to see the proper execution of the contracts. The brick-kiln remains under lock and key of the chowkidar/watchman/guard of the respondent for all 24 hours. The accepted bricks can only be taken out of the brick-kiln after the issuance of the gate-pass by the competent authority." Reading the terms of the contract, Annexure P-1 and the additional conditions Annexure P-2, shows that the contractor was required to manufacture bricks at the Government brick-kilns and make a classification of the bricks produced. After inspection, the Department may agree upon the classification as first class and others. According to the terms of the contract, the bricks are to be accepted in specified proportion of various classes at the rates stipulated. The remaining bricks of all sorts including brick-bats and tiles etc. surplus to the requirement of the Department are dealt with under the provisions of the brick-kilns Control Act operated by the Food Supply Department/District Magistrate vide clause 15 of the additional conditions, Annexure P-2. According to the allegations in the FIR, the petitioners had unauthorisedly removed four lakhs of bricks. These were not the bricks which may have been rejected by the Department and may have been released for open sale by the contractor nor are they the bricks which may have been rejected but in respect of which the Department may have failed to give clearance within 45 days of unloading. The clear allegation was that those bricks had been removed in an unauthorised manner. The solve question is whether in such an eventuality the only remedy of the Department was to recover the amount at penal rates or take an additional action by setting the criminal law into motion. Section 405, IPC defines criminal breach of trust, in so far as material for the present purpose, it reads :- "405. Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied, which had made touching the discharge of such trust, or willfully suffers any other person so to, commits "criminal breach of trust." From what has been stated above, two facts emerge : (i) That there is complete control on the reproduction of bricks at the departmental brick-kilns being run by the contractors. The bricks have to be accounted for and the production is carried out under direct supervision of the Department; (ii) The contractor has bound himself to dispose of the bricks only in the manner stipulated in the contract and if he disposes of the bricks in any other manner, same is unauthorised. ;