CHETANBHAI KAMALBHAI TOLANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this application under Section 482 of the Criminal Procedure Code (for short SCrPC ), the petitioner original accused No.2 Contractor has prayed for an appropriate order to quash and set aside the complaint being Inquiry Case No. 37 of 2007 pending in the Court of learned Chief Judicial Magistrate, Bhavnagar for the offences punishable under Sections 406, 409, 420, 465, 468, 471, 477(A), 120(B) and Section 114 of the Indian Penal Code (for short SIPC ) read with Sections 7,12, 13(c)(d) of the Prevention of Corruption Act, 1988 (for short Sthe P.C.Act, 1988 ).

(2.) A criminal complaint being Inquiry Case No. 37 of 2007 is filed by the Executive Engineer of the Gujarat Water Supply and Sewerage Board (for short Sthe Board ) against the petitioner and other two co-accused for the offences punishable under Sections 406, 409, 420, 465, 468, 471, 477(A), 120(B) and Section 114 of the IPC read with Sections 7,12, 13(c)(d) of the the Act, 1988. It is alleged in the complaint that at the time of awarding the contract in favour of the petitioner, the petitioner contractor had furnished Bank Guarantee of Rs. 15 lacs on 30.03.2005 and the original Bank Guarantee was kept in the custody of original accused No.1 at his Divisional Office. It is further alleged in the complaint that though the work was not completed, original accused No.1 wrote a letter on 01.12.2005 to release Bank Guarantee; and that the original Bank Guarantee was not produced, the same was released, the payment was made and deposited in the account of the petitioner. Thus it is alleged that all the accused in connivance with each other have created false documents and used the said documents as if it was true documents. Therefore, it is alleged that the petitioner and other co-accused have committed aforesaid offences. That the learned Chief Judicial Magistrate, Bhavnagar passed an order dated 10.01.2007 directing the P.I. (A) Division, Bhavnagar to hold inquiry under Section 156(3) of the CrPC and submit the report. Being aggrieved and dissatisfied with the same, the petitioner has preferred the present application under Section 482 of the CrPC to quash aforesaid complaint.

(3.) Mr. Mangukiya, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the petitioner has not committed any offences as alleged and the averments in the complaint do not constitute any cognizable offence. It is submitted that in fact the work was carried and completed much earlier and therefore, the Bank Guarantee was rightly released in favour of the petitioner. It is submitted that at the most it can be said that there was irregularity on the part of the Officers of the Board. It is further submitted that it was certified that work has been carried out as per the specifications of the Board and final bills are prepared by the Board and the same is not being paid to the petitioner. It is submitted that as per the terms of contract, 50% of the Bank Guarantee was supposed to be released from the date of completion of work. The issuance of the completion certificate is a formality to certify that the work is completed. Therefore, it is submitted that the petitioner has not committed any offence as alleged. Shri Mangukiya, learned Advocate appearing on behalf of the petitioner has relied upon Page No. 24 of the compilation and has submitted that same is completion certificate and therefore, no illegality has been committed in releasing the Bank Guarantee in favour of the petitioner. Therefore, it is requested to exercise powers under Section 482 of the Criminal Procedure Code to quash the complaint as continuous of said criminal proceedings and complaint would be abuse of process of law.