AADITYA KHAITAN @ ADITYA KHAITAN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Leave granted.

(2.) The appeal is against the judgment of the High Court, refusing to invoke the power under Sec. 482 of the Code of Criminal Procedure, 1973(the Cr.PC) to quash the FIR registered against the appellants, a company, whose officers are the appellants. The Deputy General Manager(the DGM) of M/s. National Building Construction Corporation Limited(the NBCCL) also filed a similar application, in which the FIR against him was quashed. The appellants are aggrieved with the refusal of the High Court to quash the FIR against them too, which registration of crime according to the appellants is a strong arm tactic to obtain recovery of money allegedly payable under a contract, for which arbitration proceedings are initiated, which has been stayed due to the pendency of the insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 in which a moratorium has been ordered by the National Company Law Tribunal, Kolkata Bench by order dtd. 29/4/2022 in Bank of India v. McNally Bharat Engineering Company Limited(C.P (IB) No. 891/KB/2020).

(3.) We heard Mr. Gopal Sankarnarayanan, learned Senior Counsel appearing for the appellants, Mr. Rajiv Shankar Dwivedi, learned Standing Counsel for the respondent-State and Mr. Deepak Dhingra, learned Counsel for the respondents. The crux of the allegations is that the first accused-company having obtained a contract from the NBCCL, sublet a portion of the work to the second respondent herein; which ran into trouble, was stalled, then revived, and again came to a standstill. Since payments were due for the work carried out, the second respondent had sought an intervention in a proceeding before the High Court, pending between the first accused company and NBCCL, which was declined on the ground there is no back-toback contract, the contract between NBCCL and the first accused clearly having provided a restrictive covenant against subletting the contract without the consent of NBCCL. The second respondent herein who was the complainant alleged that this fact was suppressed and, hence, the accused were liable to be proceeded against for the offences punishable under Sec. 406, 420, 467, 468 and 471 read with Sec. 34 of the Indian Penal Code, 1860.