APHC010715892022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] THURSDAY, THE SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL PETITION NO: 10496/2022 Between: 1. AMIT MITTAL, S/O. LATE X.S. MITTAL, AGED ABOUT 58 YEARS, OCC MANAGING DIRECTOR M/S. CORRTECH INTERNATIONAL PVT. LTD., PLOT NO.51, MAHA GUJARAT INDUSTRIAL ESTATE, OPP NOVA PETRO CHEMICA, MORAIYA VILLAGE, CHANGODAR, AHMEDABAD, GUJARAT-382213 2. R.R.SINHA, S/O. UMESH CHANDRA SINHA AGED ABOUT 53 YEARS, OCC CHIEF EXECUTIVE OFFICER M/S. CORRTECH INTERNATIONAL PVT.LTD., PLOT NO.51, MAHA GUJARAT INDUSTRIAL ESTATE, OPP NOVA PETRO CHEMICA, MORAIYA VILLAGE, CHANGODAR, AHMEDABAD, GUJARAT-382213 3. KISHORE SOLANKI, S/O. KISHORE REVABHAISOLANKI AGED ABOUT 46 YEARS, OCC PROJECT DIRECTOR, M/S. CORRTECH INTERNATIONAL PVT.LTD., PLOT NO.51, MAHA GUJARAT INDUSTRIAL ESTATE, OPP NOVA PETRO CHEMICA, MORAIYA VILLAGE, CHANGODAR, AHMEDABAD, GUJARAT-382213 ...PETITIONER/ACCUSED(S) AND 1. THE STATE OF ANDHRA PRADESH, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF A.P., AMARAVATHI THROUGH P.S. SARPAVARAM, KAKINADA EAST GODAVARI DISTRICT 2. SRI DEVI KARUMARIAMMAN CONSTRUCTIONS, REP. BY ITS MANAGING PARTNER SRI. R. BALASUBRAMANIAN S/O. S. RAMAIAH, AGED ABOUT 41 YEARS, R/O. D. NO. 4-10/3, VIVEKANANDA NAGAR, SARPAVARAM, KAKINADA, EAST GODAVARI DISTRICT ...RESPONDENT/COMPLAINANT(S): Counsel for the Petitioner/accused(S): 1. MEHAMOOD PASHA Counsel for the Respondent/complainant(S): 2 1. PUBLIC PROSECUTOR (AP) The Court made the following: ORDER: The instant petition under Section 482 of the Code of Criminal Procedure, 19731 has been filed, by the Petitioners/Accused Nos.1 to 3, seeking quashment of the proceedings against them in Crime No.337 of 2012 on the file of Sarpavaram Police Station, Kakinada, East Godavari District for the offences under Sections 420, 406 and 120B read with 34 of Indian Penal Code2. 2. Heard Sri Md.Pasha, learned counsel for the Petitioners and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent No.1/State. Since Respondent No.2 has been absconding for the last seven years and his whereabouts were not known, notice sent to him was returned. Learned Assistant Public Prosecutor represented that notice could also not be served through Police as Respondent No.2 has been absconding. 3. Learned counsel for the Petitioners would submit that, the Petitioners have nothing to do with the alleged offences and only to harass them and to spoil their reputation in the society, the present case has been registered against the Petitioners for the alleged offences, based on the private complaint filed by Respondent No.2. Learned counsel would further submit that the Petitioners had already initiated Arbitration Proceedings against Respondent No.2 by invoking the arbitration clause in the Work Order and an Arbitration Award dated 22.01.2019. The matter is of civil nature. Learned counsel would 1 in short ‘Cr.P.C.’ 2 in short ‘IPC; 3 finally submit that continuation of proceedings against the Petitioners is an abuse of process of law. Hence, prayed quashment of the same. 4. Learned Assistant Public Prosecutor would fairly conceded that Respondent No.2 has been absconding. Point for Determination 5. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point for determination that arises in this case is as follows: Whether the case against the Petitioners/Accused Nos.1 to 3 in Crime No.337 of 2012 on the file of Sarpavaram Police Station, Kakinada, East Godavari District, is liable to be quashed by exercising jurisdiction under Section 482 of the Cr.P.C.? Determination by the Court 6. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 4 7. Respondent No.2 has filed a private complaint under Section 200 of Cr.P.C. for the offences under Sections 420, 406 and 120B read with 34 of I.P.C., against the Petitioners herein and three others before the Special Mobile Judicial First Class Magistrate, Kakinada on 10.10.2012 and the Court has forwarded the complaint to the S.H.O., Sarpavaram P.S. under Section 156(3) Cr.P.C for registration of F.I.R., investigation and report and accordingly, the Respondent No.1 herein has registered F.I.R.No.337 of 2012 on 17.11.2012 for the said offences. 8. As seen from the complaint, Accused No.1 obtained a Work Order from Accused No.4 for laying gas pipelines in and around Kakinada and in turn, Accused No.1 gave a sublease to Respondent No.2 for laying the gas pipelines for 75 kms. As such, in execution of the said work, Respondent No.2 had invested around Rs.9.00 Crores, but they received Rs.4.00 Crores only from Accused No.1 and the work has been stopped from the past eight months and thereby, Accused No.1 having colluded with Accused Nos.2 to 6, intentionally cheated and committed criminal breach of trust. 9. A bare perusal of the material on record would disclose that, as rightly put by the learned counsel for the Petitioners, the subject matter is a contractual obligation among in terms of the Work Order dated 23.10.2010 between Petitioner No.1 and the Principal Contractor M/s.Bhagyanagar Gas Limited, Hyderabad and the same was given in sub-contract to Respondent No.2 by the Petitioner No.1 on back to back basis. No material has been placed before this Court to prove that the Petitioners are liable to pay any 5 amount to Respondent No.2. The material on record would further disclose that, the Petitioners had already initiated Arbitration proceedings invoking the arbitration clause in the Work Order and filed Petition No.99 of 2013 before the High Court of Gujarat and the same was disposed by constituting an Arbitral Tribunal and subsequently, an Award dated 22.01.2019 has also been passed in favour of the Petitioners and against Respondent No.2. 10. At this stage, it is relevant to refer to the judgment of the Hon’ble Apex Court in Vesa Holdings Private Limited & Another Vs. State of Kerala & Others3, wherein, it was held as follows: “It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. The Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.” (emphasis supplied) 11. In Medmeme, LLC and Others Vs. IHORSE BPO Solutions Private Limited4, the Hon’ble Apex Court, held as follows: 3 (2015) 8 SCC 293 6 “After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences under Sections 420, 406, 409 read with Section 120B of IPC even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the respondent had alleged breach of contract on the part of the appellants in not making the entire payments for the services rendered to the appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the appellants to the respondent-company for the services rendered. Reason for non-payment of the balance amount as given by the appellants is that the services rendered by the respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the appellants have filed claims against the respondent-company alleging that appellant suffered losses because of the defective services provided by the respondent. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the appellants to cheat the respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the appellants in inducing the respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator. We, thus, allow this appeal, set aside the judgment of the High Court and thereby allow the petition filed by the appellants in the High Court under Section 482 of Code of Criminal Procedure…..” (emphasis supplied) 4 (2018) 13 SCC 374 7 12. Admittedly, Respondent No.2 has been absconding for the last seven years. In view of the facts and circumstances of the present case, this Court is of the view that there are no ingredients to attract the offences alleged against the Petitioners. Further, Section 406 IPC and Section 420 IPC cannot go together. Further, the complaint does not disclose the existence of any pre- arranged plan whereby the Petitioners in collusion with the others decided to commit the offences alleged. 13. In view of the above discussion and judgments referred to supra, it can safely be held that, in absence of any specific allegations against the Petitioners, the criminal liability cannot be fastened on them and continuation of such proceedings against them is an abuse of process of the Court. 14. Accordingly, the Criminal Petition is allowed by quashing the proceedings against Petitioners/Accused Nos.1 to 3 in Crime No.337 of 2012 on the file of Sarpavaram Police Station, Kakinada, East Godavari District for the offences under Sections 420, 406 and 120B read with 34 IPC. Pending applications, if any, shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:02.01.2025 Dinesh 8 HON’BLE Dr. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.P.No.10496 of 2022 Dt.02.01.2025 Dinesh