BADRI NARAYAN TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Arun Sinha & Sri Siddharth Sinha, learned Counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri LB. Singh, Senior Advocate, assisted by Sri Isan Baghel and Sri Vikas Singh, learned Counsel for Opposite Party No. 3. The petitioner Badri Narayan Tiwari preferred this writ petition with the following prayers:

(2.) The facts, in brief, of this case are that the impugned FIR has been lodged by respondent No. 3 Sri Ankur Gupta on 6.2.2014 at 2.30 P.M. in respect of the incident allegedly occurred from 8.8.2013 to 7.1.2014. The petitioner is named therein as accused alleging therein that the Company of the complainant running in the name and style of M/s. A 2 Z Infrastructure Limited was awarded contracts for undertaking the 'Solid Waste Management' in various cities for 30 years under the JNNURM scheme and for which C & D.S. was appointed the nodal agency. The complainant company invested a lot of money. The amount of Government Grant, tipping-fees and the expenditure incurred by the complainant company was not given by the Government for no valid reason. The petitioner Badri Narayan Tiwari, Director, M/s. Accord Hydroair Private Limited promised the complainant to get their dues cleared from C & D.S. Under a well designed plan, C & D.S. had created such a situation that the complainant company was left with no other option but to sign such M.O.U.s under which the various funds would go into the account of M/s. Accord Hydroair Private Limited. The modus-operandi adopted by M/s. Accord Hydroair Private Limited reflects in the letter dated 16.1.2014 written by the complainant company to the Director C & D.S. The complainant company had written a letter dated 30.12.2013 mentioning that the complainant company had suffered financial loss of about 22 crores and had requested for the cancellation of the M.O.U.S. In the meeting, the petitioner informed that the M/s. Accord Hydroair Private Limited had submitted Bank Guarantee to the tune of Rs. 6 Crores with C & D.S. for and on behalf of the complainant company. The petitioner and C & D.S. has committed criminal breach of trust. Chartered Mercantile M.B. Limited is neither a schedule bank nor a Non-Banking Financial Corporation (N.B.F.C.), whereas according to concession agreement executed with C & D.S., the conditions for guarantee are properly provided, according to the condition, the proforma provided in the schedule only the Nationalised Bank/S.B.I. or its associates company are authorised. The company run by Haiaer Raza is neither the company nor comes under the purview of NBFC, it was having no authority to issue the guarantee. The company has committed the forgery in connivance with concerned officials of B.N. Tiwari and his company and the amount of Rs. 22 Crores was released without sanction of the complainant. The company of the petitioner has declared itself to be a Bank but at the time of its acceptance C & D.S. company had not made any objection. The complainant obtained copies of such bank guarantees of Rs. 6 crores. The first informant had come to know that C & D.S. had accepted and recommended some other bank guarantee of the petitioner company. Some other bank guarantees of the petitioner company accepted which was evident from the documents dated 8.8.2013, 16.12.2013 and 7.1.2014 issued by the Manager of its company in favour of C & D.S. Company. The cheating has been committed by the co-accused R.K. Gaur in connivance with officers of C. & D.S. Company and mis-appropriated the amount of Rs. 22 Crores. The amount payable to the company of the complainant was not paid for about 2 years and that amount was paid all of sudden by C. & D.S. Company in violation of Rules. When the complainant and his company's officers exchanged words with the petitioner in respect of the money, the petitioner abused the officers of the complainant's company and extended threat of their lives. In such manner the petitioner, co-accused R.K. Gaur and officials of Chartered Mercantile M.B. Ltd. and C & D.S. Company committed the offence of cheating, forgery and misappropriated the amount in a pre-planned manner in furtherance of the conspiracy punishable under sections 120-B, 405, 406, 420, 467, 468, 471, 504 and 506 I.P.C.

(3.) Being aggrieved from the impugned FIR, the petitioner has preferred present writ petition with the prayers to quash the same. The Counsel for the petitioner has submitted:--