SUBHASH AGRAWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners have come to this Court under S.482 of the Cr. P.C. (for short Cr.P.C.) for quashing the proceedings of G.R. case No. 1052 of 1982 pending the Court of the learned Chief Judicial Magistrate, Saharsa including the investigation and the first information of Saur Bazar P.S. Case No. 111 of 1982 (State v. Subhash Agarwal) under S.407 of the Indian Penal Code (for short I.P.C.). The petitioners claim themselves to be proprietor of the Carriers Corporation of India, a firm which deals in carrying of goods through trucks etc. from one part to the other part of the country and do business as public carrier. The Carrier Corporation of India (for short the Company) has a number of trailers to carrying big consignments from Bombay to any destination in India On 3rd of Aug., 1982, M/s. Bihar Paper Mills Limited (for short B.P.M.L.) a subsidiary to Bihar State Development Corporation Limited having their factory at Baijnathpur in the district of Saharsa entered into a contract with the said Company under the indenture of agreement of the above date to carry the consignment of B.P.M.L. after taking delivery from the docks on the arrival of the goods of the B.P.M.L. from foreign countries. This contract was entered into after the tender of the said company was accepted and in the tender it was specifically mentioned that the consignments are packed in containers and boxes.

(2.) After the said agreement, on 26th Sept., 1982 one Ramdas Pragji and Sons of Bombay the clearing Agents of the said B.P.M.L. informed the said Company that the consignments had arrived and the company should arrange to clear the same by midnight. As per the agreement, at least one day's notice was necessary to be given to the company. But in view of the fact that it was a short notice, it was brought to the notice of the B.P.M.L. that it was not possible to clear of the goods at such a short notice but in order to keep good relations the said Company arranged to send lorries as a special case and so a part of the consignment was cleared. On taking delivery of the said goods, it was noticed that the containers were open and therefore, it was brought to the notice of the B.P.M.L. that such open containers would mean that for transportation and unloading of such containers certain special and extraordinary care would have to be taken for which the rates would be higher. It was brought to the notice of the B.P.M.L. that it was suppression of the material fact while awarding tender and, therefore, the B.P.M.L. was informed that the said Company was constrained to give notice of the inability to du the job as per the rate agreed to do. It was also brought to the notice that the Bihar Sales Tax Road Permit is also necessary which was to be furnished by the B.P.M.L. In view of the above mentioned difficulties the consignments were taken to the godown and by letter dt. 26th Sept., 1982 (annexure-1) the B.P.M.L was informed about the aforementioned facts. On the same date, the B.P.M.L sent a telegram to the petitioner in respect of transportation of the consignments from Bombay to Baijnathpur. The Project Officer A.K. Srivastava of B.P.M.L by his letter dt. 25th Sept., 1982 (annexure. 2) had instructed the other employees of the said Company to send Sales Tax Form for Road permit so they could be delivered to the petitioner for taking the consignments to Saharsa, but the Road Permits were never handed over to the petitioner. The B.P.M.L. on getting the said letter of 26th Sept., 1982 give a reply by letter dt. 28th Sept., 1982 (annexure-3) to the petitioner liquidating the claim of the petitioner. The petitioner by letter dt. 3rd Oct., 1982 (annexure-4) brought to the notice of the B.P.M.L. that the consignments had been kept in Ware House which would be released only after the payment of the dues and further that the consignment were not packed from all sides and that the company would be responsible for any damage and really there was no breach of contracts. The B.P.M.L. sent a further reply on 7th of Oct., 1982 (annexure-5) to the effect that as per Clause II of the agreement dt. 3rd Aug., 1982, the company had failed to comply with the agreement and the entire earnest and security money deposited with the B.P.M.L. stood forfeited. The petitioner was asked to hand over the consignments, which according to the B.P.M.L., were taken in possession illegally. In reply to the said letter the petitioner sent a letter dated 4th November, 1982 (calling upon the B.P.L.M. to remit the earnest and security money deposited by the Company and also the dues which were increasing day by day. The B.P.M.L. by letter dt. 12th Nov., 1982 informed the petitioner and reiterated its stand that the earnest money deposited with the B.P.M.L was forfeited in consequence of breach of the agreement and, therefore, there would be no question of refund much less any damages to be paid to the said company. Thus the petitioners came to know for the first time that the B.P.M.L. would be taking appropriate criminal action against them. Further there was exchange of letters and correspondence between the company and the B.P.M.L and later on the police seized the consignment on the basis of the first information report (annexure-5) drawn on the basis of the written complaint by A.K. Shrivastava, Project Officer of the B.P.M.L. registered as Saur Bazar P.S. case No. 111/82 (State v. Subhash Agrawal) and thereafter the case was registered as G. R. No. 1052 of 1982 in the Court of the Chief Judicial Magistrate, Saharsa and the order sheet has been annexed as annexure-7. The petitioners have prayed for quashing of the said first information report as well as the proceedings.

(3.) The first information report (annexure-6) by the B.P.M.L. through A.K. Shrivastava, Project Officer, shows that in pursuance of the agreement between the Company and the B.P.M.L. the company got the machinery parts in Bombay docks on 25-9-1982 after custom clearance and instead of transporting the same directly to the plant site at Baijnathpur, Saharsa, the Carriers Corporation of India took the materials to some Warehouse in Bombay and sent a written information on 26-9-1982 to the Company repudiating their allegation under the contract for transport of the materials to Saharsa on frivolous and idle pretext and also refused to disclose the whereabouts of the materials collected by them, for which a report has been lodged under cover or letter No. 2145 dt. 6-10-1982 by the Secretary, B.S.I.D.C. Limited, Patna. Further as the company refused to lift the remaining materials from the docks the B.P.M.L was compelled to issue fresh tender and appointed a new contractor M/s. India Carrier Pvt. Ltd. Hajiganj, Patna City, vide letter No. B.P.M.L./A-880 dt. 5-11-1982 to transport the materials lying in the dockyard as well as those taken in their custody by the Company on 25-9-1982 to Saharsa. In spite of the directions and demands addressed to the Company to deliver the package retained by them since 25-9-1982, the company refused to hand over the materials and have thus misappropriated the goods in violation of the provisions of law and their obligation under the agreement to discharge the trust and have thereby committed an offence punishable under S.407 of the I.P.C. It was requested to take action against the petitioners who have been acting in the name and on behalf of the firm and are to be found at the office of the firm Steel Chambers, Broach Street, Bombay; that the B.P.M.L. is a Government undertaking and the property in question is the Government property. It was, therefore, further requested to obtain a search warrant for locating materials secreted by the Carrier Corporation of India at Bombay and that the machineries are the part of the consignment approximately valued at rupees sixty five lacks.