VIRENDRA PRAKASH GUPTA Vs. STATE

JUDGEMENT

(1.) G. B. Singh, J. This is petition under Section 482, Criminal Procedure Code to quash the proceedings, pending in the Court of Chief Judicial Magis trate, Lucknow, on the basis of a complaint for offences under Sections 406 and 409, I. P. C. , filed by U. P. State Electricity Board, opposite party No. 2 against the petitioners.

(2.) VIRENDRA Prakash Gupta and Mahendra Kumar Jain, petitioners are partners/proprietors of M/s. Shyam Enterprises, Swarup Nagar, Kanpur. The State Electricity Board invited tenders in the year 1978 for re-rolling of rail pieces, joist pieces etc. into Angles and Flats. The petitioners submitted their tender, dated 6-11-1978 in that connection. Their tender was accepted and a Deed of Agreement, Annexure I was executed in that connection on 16-1-79. The petitioners were accordingly permitted to collect scrap 300 metric tons from different storages of the Electricity Board for re-rolling into Angles and Flats. The petitioners collected the aforesaid scrap but could not complete re-roling of the entire scrap in time. They partly supplied Angles and Flats weighing 13. 125 metric tons, whereas they had to give 300 metric tons finished goods in accordance with the terms of the Agreement. Some correspondence took place between the parties thereafter but the balance could not be supplied by the petitioners. U. P. State Electricity Board, therefore, filed complaint against the petitioners for offence under Sections 406 and 409, I. P. C, alleg ing that they have dishonestly misappropriated and converted the scrap to their own use. On the basis of the complaint, the petitioners were summoned for these offences by the Chief Judicial Magistsate, Lucknow, by an order dated 10-5-1982. The petitioners thereafter filed the present petition for quashing the aforesaid proceedings initiated on the basis of the complaint.

(3.) IT is true that the view where remedy under civil law is available, Section 406, I. P. C. is inapplicable cannot be accepted. The reason is that a criminal prosecution is not completely barred because the civil remedy is available ; Criminal law and Civil law can run side by side. But the facts of the present case clearly show that the necessary ingredients of offences under Section 406, I. P. C. namely misappropriation or conversion with dis honest intention is absent. There was no question of misappropriation of the scrap till the petitioners were pressing for extension of time for supply of the remaining finished goods. Thereafter the opposite party No. 2 realised its price by encashing the Bank Guarantee. When the complainant encashed the Bank Guarantee furnished by the petitioners equivalent to the price of the scrap supplied, the transaction of sale became complete and the question of misappropriation of the scrap did not arise. Thus, a necessary ingredient for the offences under Sections 406 and 409, I. P. C. is absent in the present case and prosecution initiated on the basis of the complainant, is liable to be quashed.