PREMCO RAIL ENGINEER LTD. Vs. STATE

JUDGEMENT

(1.) By way of the present petition filed under Sec. 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C.'), the petitioners seek quashing of summoning order dtd. 1/10/2019 passed by learned Metropolitan Magistrate (South), Saket Courts, New Delhi ("learned Magistrate') in Complaint Case bearing No. 15987/2018, titled as 'Vardhman Precision Profiles and Tubes Pvt Ltd. vs. Premco Rail Engineers Ltd. and Ors.', filed under Sec. 200 of Cr.P.C., and quashing of entire proceedings emanating therefrom.

(2.) Brief facts of the case, as per the complainant/respondent no. 2, are that the complainant company i.e. Vardhman Precision Profiles and Tubes Pvt. Ltd. and the accused company/petitioner no. 1i.e. Premco Rail Engineers Ltd. had executed a joint venture agreement dtd. 10/6/2011 and promoted a joint venture concern namely M/s. Premco and Vardhaman for the purpose of applying for tender/bid dtd. 13/6/2011 with Rail Vikas Nigam Limited ("RVNL') for construction of sheds structures, porta blocks, water supply arrangement, general electric works,etc. and the said work contract had been granted in favour of the joint venture by RVNL. The complainant company had also issued a power of attorney dtd. 10/6/2011 to its lead partner of the joint venture i.e. accused company to act on behalf of the joint venture in connection with the execution of the agreement with RVNL. It is stated that the joint venture had opened two bank accounts, one in Delhi and another in Kolkata. Thereafter, when the work had formally been awarded to the joint venture, both the companies had entered into a fresh joint venture agreement dtd. 12/9/2011 vide which the sharing ratio between the complainant company and the accused company had been decided as 29:71% respectively. As per the said agreement, out of total value of contract of Rs.98,17,51,383.00 awarded to the joint venture, the complainant company had to discharge and perform works amounting to Rs.28,31,31,865.00 and the accused company had to discharge and perform works valued at Rs.69,86,19,473.00 and both the companies were to execute their respective share of works and raise bills on RVNL individually through the joint venture. As per complainant, the accused company had agreed with RVNL on its own to provide a discount @ 3.76% on the scheduled rates without discussion with the complainant, however, the complainant company had not agreed for grant of such rebate/discount and for this purpose, another joint venture agreement dtd. 20/9/2011 had been executed whereby it was agreed between the two companies that the accused company would bear the rebate/discount agreed by it to the RVNL and shall reimburse the amount equivalent to 3.76% so deducted by RVNL from all the bills relating to works performed by the complainant company and the accused company shall release all payments credited into the bank account of joint venture at Kolkata branch in respect of the bills to be raised by complainant company through joint venture on RVNL along with reimbursement of rebate/discount of 3.76%. As alleged by the complainant, the intention of the accused persons had become fraudulent and they had raised false and fabricated bills on the RVNL in respect of the works completed by the complainant company and had got released a total amount of Rs.148.00 lacs (approximately) on the basis of such false and fabricated bills from RVNL and had illegally withdrawn the same from the bank account of joint venture. It is further alleged that the accused persons had grossly defaulted in filing the income tax, sales tax returns, and deposits of various tax and duties with the government departments due to which TIN of the joint venture had been suspended by the sales tax department. It was also alleged that the accused persons had not released the C-Forms in respect of building material worth Rs.15.2 crores which was supplied by the complaint company to RVNL in respect of the contract. It was further alleged that the accused persons had grossly misappropriated various funds of the joint venture before and at the time of finalization of the balance sheet of financial year 2012-13 and 2013-14. The complainant had also alleged that the accused persons had misappropriated the refunds of TDS which had got deducted by the RVNL at the time of release of various payments to joint venture. It was also alleged that the accused persons had raised fabricated bills amounting to Rs.1.37 crores on RVNL on account of price variation for the share of the work done by complainant company and had got released the said amount from RVNL. Thus, as per the complainant, the accused persons had illegally defrauded the complainant company and siphoned off substantial amounts from the bank account of joint venture and total amount of such funds siphoned off and misappropriated was approximately Rs.385.65 lacs (approximately). Therefore, it was alleged that the accused persons had indulged in illegal acts of fraud, breach of trust, criminal conspiracy, etc. in dealing with the matters relating to joint venture, and on these allegations, the complaint under Sec. 200 Cr.P.C. was filed by the complainant company/respondent no. 2against the petitioners before the learned Magistrate in October, 2018.

(3.) On the complaint filed by respondent no. 2, the learned Magistrate had taken cognizance and issued summons against the petitioners vide order dtd. 1/10/2019. Aggrieved by the issuance of summons, the petitioners have preferred the present petition seeking setting aside of the impugned order dtd. 1/10/2019.