SONY CAARGO MOVERS Vs. THE SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) IN this petition, the petitioners pray for quashing F.I.R. No.RCMA 12014A 22 dated 07.06.2014 u/s. 120(B) r/w 420 IPC and substantive offence, and 13(2) r/w 13(i)(d) of the Prevention of Corruption Act, 1988 on the file of the Superintendent of Police, CBI/ACB, Shasthiri Bhavan, No. 26, Haddows Road, Chennai - 600 006.

(2.) THE petitioners are the registered lease holders of the Southern Railway. The petitioners were leased parcel space / parcel van having carrying capacity of 23 tons by Train No. 16031/16032 for the transportation of parcels from Chennai Central to Jammu Tawi and back for a period of three years. As per clause 16 of the lease agreement, provision has been made for overloading of parcel van space and penalty and provides for re -weighment. As per clause 26.3 of the lease agreement, in case of dispute, the matter has to be resolved through arbitration.

(3.) MR . K.M. Vijayan, learned Senior Counsel, representing Mr. R. Selva Kumar, learned counsel for the petitioners, submitted that the registration of FIR is a clear abuse of process of law and even according to the lease agreement between the railway authorities and the petitioners and as per the provisions of the Railways Act, 1989 and the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007, the railways are entitled to levy only penalty for overloading. Even assuming that there was overloading of wagons as contended by the respondent, no criminal liability can be fastened and there is no question of cheating or fraud involved on the part of the petitioners and when the petitioners dispute weighment as conducted by the respondent, the petitioners requested for manual reweighing, and without conducting the same, it cannot be presumed that the petitioners have loaded goods in excess of the prescribed quantity and therefore, committed the offence. The learned Senior counsel further submitted that even assuming that the wagons which were taken on lease by the petitioners are overloaded to the tune of 13.14 tons as per the prosecution case that will not lead to any criminal offence and only civil liability can be fastened and the petitioners can be directed to pay penalty and the act of the petitioners cannot come under the provision of definition of cheating. He further submitted that FIR has been filed against the petitioners even under the provisions of the Prevention of Corruption Act, 1988 and admittedly, the petitioners are not government servants and no government servant's name has been mentioned in the FIR and no allegations have been made in the FIR that the petitioners attempted to give any illegal gratification to any government servant and in the absence of any such allegation of ingredients of section 13 of the Prevention of Corruption Act, the petitioners cannot be prosecuted for the offence under the Prevention of Corruption Act. The learned Senior Counsel further submitted that the respondent without following the provisions of CBI Manual and without conducting any preliminary enquiry ought not to have straight away registered the FIR and therefore, the FIR is liable to be quashed. The learned Senior Counsel further drew my attention to Section 73 and 180 -F of the Railways Act and also the provisions of the Railways (Punitive Charges for Overloading of Wagon) Rules, 2007 and various clauses of the lease agreement including clauses 16 and 17 between the petitioners and the railways and submitted that even in case of overloading, the petitioners are liable to pay penalty and therefore, no criminal case can be filed against the petitioners. He also relied upon the judgment rendered in : CDJ 2011 DHC 049 in the matter of Shri Pankaj Mohan Associates and another Versus Secretary Railway Board and others in W.P.(C) No. 9342 of 2007 etc., batch, on the file of the High Court of Delhi and submitted that no prosecution can be launched on the ground of overloading and therefore, the FIR is liable to be quashed. He also relied upon the judgment of this Court reported in : CDJ 2014 MHC 2866 in the matter of Dr.MCR Vyas & Others Versus The Inspector of Police, CBI Anti Corruption in support of his contention that without conducting preliminary enquiry and without following the CBI Manual, the FIR cannot be registered, and therefore, it is also liable to be quashed on that ground.