ITD CEMENTATION INDIA LTD Vs. DHARMESH M PATEL

JUDGEMENT

(1.) PRESENT is the classic example of abuse of process of court and the criminal proceedings and abuse of power by the police and to certain extent by the learned magistrate. For a pure and simple dispute of civil nature for the alleged recovery of the amount pursuant to the alleged contract entered into between the complainant and the accused person, a private criminal complaint came to be filed only for the purpose of recovery of the alleged dues and civil dispute has been converted into a criminal dispute. Present is also a classic example of illegal order passed by the learned Magistrate initially passing an order for investigation by the Police Inspector, navrangpura Police Station, Ahmedabad under S. 156 (3) of the Code of Criminal procedure against the accused persons residing outside his local jurisdiction i. e. residing at Mumbai and next day straightway issuing Non-Bailable Warrants under S. 70 of the Code of Criminal procedure against the accused persons and thereafter the investigating officer has gone to serve the warrants and summons upon the accused persons at Mumbai and agreement of settlement is executed into on the very day (in spite of civil litigation pending); cheques are obtained and immediately thereafter the complaint is withdrawn.

(2.) FEW facts and chronological events, which are necessary for determination of the present petition in nutshell are as under:-

(3.) THE respondent No. 1 herein -Dharmesh M. Patel, proprietor of M/s. Astha engineering Company of Ahmedabad, who claims to be sub-contractor of original accused No. 1 - ITD Cementation India limited tiled a complaint in the court of the learned Metropolitan Magistrate, Court no. 13, Ahmedabad against one ITD cementation India Limited, Mumbai and other accused i. e. Managing Director, directors, Dy. Director, Senior General manger, General Manager of the aforesaid company, who are residing at Mumbai, for the offences punishable under Sections 406, 420, 120-B and 114 of Indian Penal Code. The said complaint was registered as inquiry Case No. 49 of 2007 on 30/8/2007. It was alleged in the complaint that the government of Gujarat had decided to declare riverfront and a company named sabarmati Riverfront Development corporation was incorporated, by which the work contract was given to the original accused No. 1 i. e. ITD Cementation India ltd. and the said company had given sub-contract to the complainant. It was further alleged in the complaint that initially on 3/ 2/2005, there was an oral talk between the complainant and the accused and on that basis, in presence of one Rajeshkumar chunilal Patel and and Ashokkumar radheshyam Kakhani talked had taken place and work of Diaphgram Wall and anchor Slab as well as excavation / filling work was given to the original complainant. It was further alleged in the complaint that on 25/1/2006, a written contract had taken place and as per the said contract, the work was to be executed and the work was to be completed on or before 15/7/2006. It was further alleged in the complaint that thereafter the work was started by the complainant and various machineries like vibrator roller and other things were brought on the site and instead of 35 workers, the complainant engaged 65 workers and the work was initiated. However, for the want of supply of drawings, the work could not proceed further. The work was to be executed in the water itself. It was further alleged in the complaint that, however, the accused had complained about the work being not properly done and not speedily done and ultimately though the work to the tune of 70% was completed and the complainant completed the work of the value of Rs. 1. 20 crore. the last bill was drawn on 10/6/2006 for which Rs. 15 Lacs payment was made and without any reason, payment of Rs. 1. 05 crore was not made. It was further alleged in the complaint that though the work was going on according to the contract, but ultimately on 25/4/2006, the contract was terminated one sidedly without any reason and the payment of Rs. 1. 05 Crore remained outstanding and on that basis, the complainant filed the aforesaid complaint against all the accused persons on 14/8/ 2007 for the offences punishable under sections 406, 420, 120-B and 114 of Indian penal Code.