Navneet Bhanu and Anr. Vs. State of Jharkhand and Anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/51043
CourtJharkhand High Court
Decided OnApr-27-2015
AppellantNavneet Bhanu and Anr.
RespondentState of Jharkhand and Anr.
Excerpt:
in the high court of jharkhand at ranchi cr.m.p. no.12 of 2002 1.navneet bhanu 2.r.k.pandey …. petitioners versus 1.state of jharkhand 2.pradeep kumar bajaj ...o.ps. with cr.m.p. no.99 of 2002 sandeep kumar bagchi …. petitioner versus 1.state of jharkhand 2.pradeep kumar bajaj ….. o.ps. ---- coram : the hon’ble mr. justice d.n.upadhyay for the petitioners : m/s.deepak kr. dubey, advocate(cr.m.p.12/02) nehala sharmin, advocate (cr.m.p.99/02) for the state : app for o.p. no.2 : yogesh modi, advocate ----- 10/27.04.2015 these petitions have been filed for quashing the order dated 27.10.2001 passed by learned chief judicial magistrate, dhanbad in connection with c.p. case no.911 of 2001 and also the entire criminal prosecution arising out of said c.p. case no.911 of 2001 launched against the petitioners.2. the fact, in brief, is that the complainant runs a business under the name and style of m/s. bajaj sales having its place of business at dhanbad. the accused company m/s. larsen & turbo limited(company for short) offered the work vide their letter no. bih/c&f/patna/kas/007 dated 24.05.1999 for (a) cleaning and forwarding of consignment of cement from bhaga railway siding at dhanbad and (b) storage and delivery of cement and other services from their dhanbad godown. the complainant-company accepted the offer and as per terms and conditions, deposited bank guarantee for rs.five lakhs as security deposit in favour of m/s. larsen & turbo limited.3. it is alleged that the complainant has performed his part of obligation and further raised bills, but the company and its officers, who are accused, arbitrarily did not consider the grievances raised by the complainant and invoked bank guarantee of rs.five lakhs. the complainant made several correspondences but no satisfactory reply was given and, therefore, he had left no option, but .2. to file this case.4. learned magistrate after holding enquiry, took cognizance and directed to issue summons against the accused persons to face trial. the petitioner nos.1 and 2 in cr.m.p. no.12 of 2002 were posted as marketing executive and sales officer under m/s. larsen & turbo limited, whereas petitioner-sandeep kumar bagchi in cr.m.p. no.99 of 2002 was posted as branch manager, bank of india, jharia branch, main road, jharia, dhanbad.5. learned counsel for the petitioners has referred clause-ab5& 6 of the contract dated 16.05.2000 forwarded to the complainant and submitted that clause-ab5 indicates about arbitration and clause- ab6 indicates about jurisdiction of the courts. the aforesaid clauses reads as under: “arbitration any dispute arising under or relating to this agreement shall be resolved by arbitration, in accordance with india arbitration act, 1940 as amended or re-enacted, by reference to a sole arbitrator. the venue of arbitration shall be mumbai. jurisdiction all causes or action arising out of or under this agreement shall be subject to the jurisdiction of courts situated in mumbai”. 6 it is admitted case of the complainant that contract between the complainant and accused-company was given effect to and they have done the business to some extent. later, some dispute arose in respect of payment and dispatch of cement from the siding yard. as per the arbitration clause, the matter was required to be referred for arbitration, but the complainant has lodged this case with ulterior motive to harass the company and its officers. it is purely civil dispute and the impugned order is highly erroneous, bad in law and the same is liable to be set aside. learned magistrate has directed the accused persons to face trial for the offences punishable under section 406, 409 and 120- b i.p.c. it is apparent that no offence under section 409 by any stretch of imagination has been made and the ingredient of said section is highly lacking. question of entrustment, criminal mis-appropriation and criminal breach of trust did not arise at all. the transaction between the parties had taken place under the contract and, therefore, the impugned order is liable to be set aside.7. learned counsel appearing for the petitioner in cr.m.p. .3. no.99 of 2002 has submitted that the petitioner was posted as branch manager in bank of india, jharia branch, main road, jharia, dhanbad. he has nothing to do with the dispute prevailing between the parties and he was bound to follow the instruction in whose favour bank guarantee was executed by the complainant. question of any connivance with the officers of m/s. larsen & turbo limited does not arise at all. it is very clear from annexure-a of the counter affidavit filed by the complainant that bank guarantee was invoked after the petitioner received letter no.bg-inv-28/7-140699-sns dated 28 th june,2001 and, therefore, allegation of mis-appropriation of the property levelled against the petitioner is incorrect.8. learned counsel appearing for the complainant has opposed the argument and submitted that the complainant had made several correspondences requesting the accused persons to clear the dues, but they did not bother and kept on writing letters by raising their grievances. both the petitioners in cr.m.p. no.12 of 2002 have not only made correspondences, rather petitioner no.2 had also signed the letter sent for invoking bank guarantee. this argument has no leg to stand that the petitioners were working in the accused- company and, therefore, they cannot be prosecuted. it is submitted that they should have brought it to the notice of the higher authorities for settlement but, they have invoked the bank guarantee and encashed the amount. it is pointed out that entrustment of bank guarantee has well been established and that is not denied. invoking bank guarantee without authority is certainly criminal breach of trust and that act of accused persons attracts ingredients of section 406 i.p.c. it is further pointed out that other accused persons did not appear because of interim protection granted by this court vide order dated 07.01.2002 passed in cr.m.p. no.12 of 2002. in view of the order passed by this court, the complainant could not take further step for issuance of process against rest of the accused persons.9. i have perused records of both the cases. admittedly, petitioner in cr.m.p. no.99 of 2002 has no concern with the contract, if any contract had taken place between the complainant and the accused-company. according to banking procedure and terms of bank guarantee, if the party in whose favour bank guarantee has been executed, request the bank to invoke the same, the officers of the bank, in absence of any order passed by any appropriate authority, is bound to honour the bank guarantee.10. in the circumstances, i feel inclined to quash the impugned order to the extent of criminal prosecution of petitioner in .4. cr.m.p. no.99 of 2002 and the order by which he has been summoned to face the trial for the alleged offence stands set aside. cr.m.p. no.99 of 2002 is allowed.11. so far as cr.m.p. no.12 of 2002 is concerned, i am in agreement with argument advanced by counsel appearing for the complainant that dispute regarding the terms and conditions appearing in the contract is something else than invoking of bank guarantee. the security deposit was certainly an entrustment made by the complainant and without having any authority that should not have been invoked and encashed. the petitioners, who are officers of m/s. l & t limited i.e. accused-company, prima facie appears to have been instrumental in invoking said bank guarantee. 12 so far as specific defence taken by them is concerned, that may be considered during the trial. at present, i do not find any merit to allow cr.m.p. no.12 of 2002 and accordingly the same stands dismissed with note that observation made by this court in this order shall not cause prejudice to the party concerned and they shall be at liberty to adduce their evidence and make defence, which may be considered on its own merit.13. interim order dated 07.01.2002 stands vacated. the trial court is at liberty to proceed further in accordance with law. ( d.n.upadhyay, j.) s.b.
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.12 of 2002 1.Navneet Bhanu 2.R.K.Pandey …. Petitioners Versus 1.State of Jharkhand 2.Pradeep Kumar Bajaj ...O.Ps. With Cr.M.P. no.99 of 2002 Sandeep Kumar Bagchi …. Petitioner Versus 1.State of Jharkhand 2.Pradeep Kumar Bajaj ….. O.Ps. ---- Coram : The Hon’ble Mr. Justice D.N.Upadhyay For the Petitioners : M/s.Deepak kr. Dubey, Advocate(Cr.M.P.12/02) Nehala Sharmin, Advocate (Cr.M.P.99/02) For the State : APP For O.P. no.2 : Yogesh Modi, Advocate ----- 10/27.04.2015 These petitions have been filed for quashing the order dated 27.10.2001 passed by learned Chief Judicial Magistrate, Dhanbad in connection with C.P. Case No.911 of 2001 and also the entire criminal prosecution arising out of said C.P. Case no.911 of 2001 launched against the petitioners.

2. The fact, in brief, is that the complainant runs a business under the name and style of M/s. Bajaj Sales having its place of business at Dhanbad. The accused Company M/s. Larsen & Turbo Limited(Company for short) offered the work vide their letter No. BIH/C&F/PATNA/KAS/007 dated 24.05.1999 for (A) Cleaning and Forwarding of Consignment of Cement from Bhaga Railway siding at Dhanbad and (B) Storage and Delivery of Cement and other services from their Dhanbad Godown. The complainant-Company accepted the offer and as per terms and conditions, deposited bank guarantee for Rs.five lakhs as security deposit in favour of M/s. Larsen & Turbo Limited.

3. It is alleged that the complainant has performed his part of obligation and further raised bills, but the Company and its officers, who are accused, arbitrarily did not consider the grievances raised by the complainant and invoked bank guarantee of Rs.five lakhs. The complainant made several correspondences but no satisfactory reply was given and, therefore, he had left no option, but .2. to file this case.

4. Learned Magistrate after holding enquiry, took cognizance and directed to issue summons against the accused persons to face trial. The petitioner nos.1 and 2 in Cr.M.P. no.12 of 2002 were posted as Marketing Executive and Sales Officer under M/s. Larsen & Turbo Limited, whereas petitioner-Sandeep Kumar Bagchi in Cr.M.P. no.99 of 2002 was posted as Branch Manager, Bank of India, Jharia Branch, Main Road, Jharia, Dhanbad.

5. Learned counsel for the petitioners has referred Clause-AB5& 6 of the contract dated 16.05.2000 forwarded to the complainant and submitted that Clause-AB5 indicates about arbitration and Clause- AB6 indicates about jurisdiction of the courts. The aforesaid Clauses reads as under: “ARBITRATION Any dispute arising under or relating to this agreement shall be resolved by arbitration, in accordance with India Arbitration Act, 1940 as amended or re-enacted, by reference to a Sole Arbitrator. The venue of Arbitration shall be Mumbai. JURISDICTION All causes or action arising out of or under this agreement shall be subject to the jurisdiction of courts situated in Mumbai”. 6 It is admitted case of the complainant that contract between the complainant and accused-Company was given effect to and they have done the business to some extent. Later, some dispute arose in respect of payment and dispatch of Cement from the siding yard. As per the arbitration clause, the matter was required to be referred for arbitration, but the complainant has lodged this case with ulterior motive to harass the Company and its officers. It is purely civil dispute and the impugned order is highly erroneous, bad in law and the same is liable to be set aside. Learned Magistrate has directed the accused persons to face trial for the offences punishable under section 406, 409 and 120- B I.P.C. It is apparent that no offence under section 409 by any stretch of imagination has been made and the ingredient of said section is highly lacking. Question of entrustment, criminal mis-appropriation and criminal breach of trust did not arise at all. The transaction between the parties had taken place under the contract and, therefore, the impugned order is liable to be set aside.

7. Learned counsel appearing for the petitioner in Cr.M.P. .3. no.99 of 2002 has submitted that the petitioner was posted as Branch Manager in Bank of India, Jharia Branch, Main Road, Jharia, Dhanbad. He has nothing to do with the dispute prevailing between the parties and he was bound to follow the instruction in whose favour bank guarantee was executed by the complainant. Question of any connivance with the officers of M/s. Larsen & Turbo Limited does not arise at all. It is very clear from Annexure-A of the counter affidavit filed by the complainant that bank guarantee was invoked after the petitioner received letter no.BG-INV-28/7-140699-SNS dated 28 th June,2001 and, therefore, allegation of mis-appropriation of the property levelled against the petitioner is incorrect.

8. Learned counsel appearing for the complainant has opposed the argument and submitted that the complainant had made several correspondences requesting the accused persons to clear the dues, but they did not bother and kept on writing letters by raising their grievances. Both the petitioners in Cr.M.P. no.12 of 2002 have not only made correspondences, rather petitioner no.2 had also signed the letter sent for invoking bank guarantee. This argument has no leg to stand that the petitioners were working in the accused- Company and, therefore, they cannot be prosecuted. It is submitted that they should have brought it to the notice of the higher authorities for settlement but, they have invoked the bank guarantee and encashed the amount. It is pointed out that entrustment of bank guarantee has well been established and that is not denied. Invoking bank guarantee without authority is certainly criminal breach of trust and that act of accused persons attracts ingredients of section 406 I.P.C. It is further pointed out that other accused persons did not appear because of interim protection granted by this Court vide order dated 07.01.2002 passed in Cr.M.P. no.12 of 2002. In view of the order passed by this Court, the complainant could not take further step for issuance of process against rest of the accused persons.

9. I have perused records of both the cases. Admittedly, petitioner in Cr.M.P. no.99 of 2002 has no concern with the contract, if any contract had taken place between the complainant and the accused-Company. According to banking procedure and terms of bank guarantee, if the party in whose favour bank guarantee has been executed, request the bank to invoke the same, the officers of the Bank, in absence of any order passed by any appropriate authority, is bound to honour the bank guarantee.

10. In the circumstances, I feel inclined to quash the impugned order to the extent of criminal prosecution of petitioner in .4. Cr.M.P. no.99 of 2002 and the order by which he has been summoned to face the trial for the alleged offence stands set aside. Cr.M.P. no.99 of 2002 is allowed.

11. So far as Cr.M.P. no.12 of 2002 is concerned, I am in agreement with argument advanced by counsel appearing for the complainant that dispute regarding the terms and conditions appearing in the contract is something else than invoking of bank guarantee. The security deposit was certainly an entrustment made by the complainant and without having any authority that should not have been invoked and encashed. The petitioners, who are officers of M/s. L & T Limited i.e. accused-Company, prima facie appears to have been instrumental in invoking said bank guarantee. 12 So far as specific defence taken by them is concerned, that may be considered during the trial. At present, I do not find any merit to allow Cr.M.P. no.12 of 2002 and accordingly the same stands dismissed with note that observation made by this Court in this order shall not cause prejudice to the party concerned and they shall be at liberty to adduce their evidence and make defence, which may be considered on its own merit.

13. Interim order dated 07.01.2002 stands vacated. The trial court is at liberty to proceed further in accordance with law. ( D.N.Upadhyay, J.) s.b.