ARVINDER SINGH PAHWA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) ARVINDER Singh Pahwa, the petitioner herein vide instant petition under Section 482 Cr.P.C. has prayed for quashing of the order dated 30.04.2009 of the learned M.M. directing framing of charge under Section 406 IPC against the petitioner as also the quashing of order dated 30.07.2009 passed by the learned Additional Sessions Judge in revision.

(2.) BRIEFLY stated, facts relevant for disposal of this petition are that the petitioner's firm M/s Pahwa Builders was awarded contract to grit wash the boundary wall of the park and construction of room for jet pump in K-Block, Mahavir Nagar, C-22, West Zone, Delhi vide the work order No.VII/TC/WZ/94-95/18/42/408 dated 02.08.1994. As per clause 8 of the work order, 171 bags of cement were to be issued by the MCD to the petitioner's firm at the rate of Rs. 115/- plus 2% surcharge per bag. It is the case of the prosecution that cement bags were to be released for the construction work awarded to the petitioner and pursuant to the aforesaid work order, 170 bags of cement bags were released to the petitioner from the MCD store. The petitioner, instead of unloading those bags at construction site K-Block Park, Mahavir Nagar, diverted those bags to Tagore Garden Extension. It is alleged that Rajender Nishal, Deputy Director Vigilance, MCD More Sarai, Delhi received a secret information that the petitioner intended to divert those cement bags to some other place for sale. On this, a raid was conducted. The labour of the petitioner was found unloading those cement bags at D- 751, Tagore Garden Extension, instead of the construction site at Mahavir Nagar Park. On these allegations, prosecution is claiming that the petitioner, by diverting the cement bags to a different site for being used for a purpose other than the work under contract, has committed an offence of criminal misappropriation punishable under Section 406 IPC.

(3.) LEARNED counsel for the petitioner, assailing the impugned orders, has submitted that both the courts below have failed to appreciate that there is no evidence on record to, prima facie, disclose the entrustment of cement bags by MCD to the petitioner or misappropriation of those bags as alleged. Thus, there was no occasion for framing charge under Section 406 IPC against the petitioner. Dilating on the argument, learned counsel for the petitioner submitted that perusal of the work order dated 02.08.1994, particularly clause 8, reveals that as per the agreement, 171 cement bags were to be issued to the petitioner at the cost of Rs. 115/- plus 2% surcharge per bag. He has also referred to the copy of the store indent vide which 170 bags of cement were released to the petitioner and in columns No.7, 8 and 9, it is mentioned that rate per bag was Rs. 115.00 and amount to be paid as price of those bags by the petitioner was Rs. 19,941/- and it was to be credited to H.O. account XL-VIII-D. From this, learned counsel for the petitioner submitted, it is evident that those cement bags were actually sold to the petitioner and once the ownership of the bags had passed to the petitioner, there was no question of entrustment of cement bags by MCD to the petitioner and in absence of entrustment, there could not have been an offence under Section 406 IPC.