VIVEK TALWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition filed under Article 227 and read with Section 482 of Cr. P. C. , at the first instance, impugns the order dated 29/8/2000 passed by the learned Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai rejecting the application for discharge filed in Criminal Case No. 29/c/96 and secondly it prays for quashing the proceedings in the said criminal case as far as the petitioner is concerned.

(2.) AS per the petitioner M/s. NITCO Tiles Ltd. is a company registered under the Companies Act, 1956 and the petitioner is the Managing Director of the said company. The Company had acquired land for construction of a factory manufacturing Ceramic Tiles at Alibag and it had entered into a contract with M/s. Venkatesh Constructions (accused no. 3) for the levelling and the filling of the said land. It appears that accused no. 3, in turn, sub-contracted the work to another firm by name M/s. Sterling Engineering Company, a sole proprietary concern with its registered office at 2/94 Vaishnavi, Garodia Nagar, Ghatkopar (E), Mumbai 400 077 (hereinafter referred to as the sub-contractor) and accused no. 3 (the contractor) is alleged to have placed an order with sub-contractor on 11/5/1995 thereby specifying the work to be done by the sub-contractor at the site. As per the said Work Order condition no. 7 stated that bills raised by the sub-contractor on weekly basis and certified by the site Engineer would be paid within seven days and the total area of earth filling was approximately 2 lacs mtrs. The work was to be completed within 45 days from the acceptance. The sub-contractor carried out the work and submitted his bills to the contractor and the total bill amount was Rs. 9,16,455/ -. The bills were dated 22/5/1995, 5/6/1995, 11/6/1995, 19/6/1995 and 5/7/1995. However, the bill amount was not released and the sub-contractor addressed letters to the contractor (accused no. 3 ). The last such letter addressed by the sub-contractor to the contractor was dated 20/6/1995 and there was no response from the contractor. The sub-contractor, therefore, addressed registered notice on or about 2/9/1995 for the recovery of the pending bills amount and on or about 6/2/1996 he filed Criminal Case No. 29/c/1996 for the offence punishable under Section 420 read with Section 34 of IPC alleging that he was made to suffer wrongful loss and the accused made false representations. Along with the contractor (accused no. 3), the complainant also impleaded accused no. 4 Shri Atul Panchamia, who is a resident of Ghatkopar and allegedly had approached the complainant (sub contractor) sometimes in the month of April 1995 and had represented on behalf of the accused nos. 1 to 3. Accused no. 2 was the General Manager of M/s. NITCO Tiles Ltd. and in the meanwhile he had left the said company's service and, therefore, he could not be served and consequently, the complaint has been dismissed against the said accused no. 2 by deleting his name.

(3.) THE sub-contractor has, through Mrs. Prabha P. Shenai claiming to be the sole Proprietress of the sub-contractor - firm, filed Summary Suit No. 2569 of 1998 on the Original Side of this Court against the contractor - accused no. 3 for the recovery of Rs. 16,67,638/- on or about 4/5/1998 i. e. after the criminal complaint was initiated and the said suit is presently pending. Summons for Judgment No. 646 of 1998 filed in the said suit came to be dismissed on 22/2/2000. The present petitioner filed an application for being discharged (Exh. 6) before the learned Metropolitan Magistrate and at the same time accused no. 3 also filed a similar application for discharge (Exh. 7) and both the applications came to be rejected by a common order dated 29/8/2000. It is also pertinent to note that Regular Civil Suit No. 110 of 1996 was filed by the accused no. 3 against the company for recovery of dues and the said suit was compromised on 9/12/1996 between the plaintiff and the defendant-company. By the said compromise decree, the defendant - company agreed to pay to the plaintiff a sum of Rs. 10,00,000/- before deducting TDS in full and final settlement towards the jobs undertaken and done by the plaintiff or by any of his sub-contractors. It was further stated in the said decree that any claim of the sub-contractors in respect of the work done at the site of the company and in respect of the contract given to the plaintiff shall be the responsibility of the plaintiff. It was further stated that the dispute between the plaintiff and M/s. Sterling Engineering Company or with any other sub-contractor will be settled by the plaintiff and the defendants were not responsible for any dues which would be payable by plaintiff to any sub-contractor or anybody working for plaintiff. It was further stated that the defendants or their employees had no concern whatsoever with M/s. Sterling Engineering Company.