VIJAY KUMAR JAIN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) VIJAY Kumar petitioner who was working as a Building Contractor, had undertaken the work of construction at Jalandhar Cantt. On 19.10.1987, the Garrison Engineer, G -West, Jalandhar Cantt. allegedly noticed that several items such as High level cristen, Brick tiles, Cable PVC etc. enumerated in Annexure P -1 were missing. In the FIR, the allegation were regarding theft but subsequently a trend was given to entrustment and ultimately a challan was presented and a charge under Section 406 of the Indian Penal Code was framed by the Judicial Magistrate, I class, Jalandhar on 26.5.1990. Aggrieved against it the present petition has been moved under Section 482 of the Code of Criminal Procedure.

(2.) IT has been argued that the accused is a Contractor and there was an agreement, interse the parties and Clause 'R' in Schedule 'B' thereof as under : - " With regard to items of materials issued for fixing only, if any such material is lost, broken or damaged while in the custody of the Contractor the cost thereof shall be recovered form the contractor at penal rate of two times the stock book/market rate (whichever is higher) prevailing at time of recovery as decided by the GE. In case of disagreement between the GE/ Contractor with regard to the rate(s) of penal recovery the decision of the CWE shall be final and binding." This would go to show that this contractor was liable to compensate if any loss or damage to material supplied to him was noticed. It has further been argued that in the presence of this clause and other important clauses no. 67 and 70 of the agreement which refer to recoveries form the contractors and specific provision of arbitration, it was an abuse of the process of the Court to prosecute the contractor and that too during the pending of arbitration proceedings.

(3.) IT has further been pointed out on behalf of the petitioner that when the Contractor served a notice on the Department on 19.10.1987 in respect of this own outstanding claim, the present FIR was lodged about two weeks thereafter on 4.11.1987 as a kind of counter blast. It has further been stressed that the matter is still before the Arbitrator and his decision is waited. It is predominantly a civil dispute. The complainant believed as if the accused has committed theft and when no recovery was made form or at the instance of the present petitioner the proceedings were converted into one under Section 406 of the Indian Penal Code altogether ignoring the Civil dispute pending interse the parties regarding to worth in question. The test laid down in Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, 1988(1) R.C.R.(Criminal) 565 : AIR 1988 S.C. 709, referred to by the learned counsel for the petitioner does not support the contention that it shall be expedient or in the interest of justice to permit prosecution of the present petitioner during the pendency of the civil dispute interse the parties. The conclusion is that the present petition is accepted and the charge framed on 26.5.1990 against the petitioner is hereby quashed. Petition allowed.