HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.4515 of 2013 Date: 19-6-2014 Between B.S.Transcom Ltd., Banjara Hills, Hyderabad, Rep. by its Chairman and Managing Director Rajesh Agarwal; and 3 others … Petitioners/ Accused 1 to 4 and State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad; and another … Respondents HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.4515 of 2013 Order:
The 1st petitioner is a Company. The 2nd petitioner is the Chairman and Managing Director of the 1st petitioner. The 3rd petitioner is a full time Director and the 4th petitioner is the General Manager of the 1st petitioner. They seek for quashing First Information Report (FIR) in Crime No.26 of 2013 of Golkonda Police Station, Hyderabad. They are accused 1 to 4 in the FIR.
2. The Police registered a case against the petitioners under Sections 420, 468, 471 and 120-B, IPC. It is the case of the 2nd respondent that the 2nd respondent is a Sub-Contractor of the 1st petitioner for the installation work of Mobile Towers of TATA (VIOM) for Rs.70 lakhs as well as for the installation and commissioning of telephone equipments in respect of some other works. The 2nd respondent contended that he completed the sub-contract to a tune of Rs.70,67,160/- and that he was however paid Rs.56,59,557/- only.
The 1st petitioner allegedly sought for refund of Rs.10,47,350/- from the 2nd respondent on the ground that excess payment was made by the 1st petitioner. M/s. TATA (VIOM) allegedly issued a letter to the 1st petitioner demanding refund of Rs.17,64,358/- on the ground that excess payment was made by it.
The 1st petitioner allegedly evaded making payment to the 2nd respondent on the one hand and created false record in order to obtain refund from the 2nd respondent on the other hand. Consequently, the petitioners allegedly committed the offences under Sections 420, 468 and 471 read with Section 120-B, IPC.
3. It may be noticed that the 1st petitioner receives orders from various Telecom Companies and engages sub-contracts to accomplish the work. It is the case of the petitioners that on 22-5-2008 and 16-6-2008, the services of the 2nd respondent were engaged as a Sub-Contractor. The petitioners claimed that an amount of Rs.70,67,160/- was paid to the 2nd respondent which includes excess payment of Rs.10,47,350/-. The 1st petitioner thereafter issued a notice to the 2nd respondent to return the excess payment on the basis of the calculations allegedly received from the end customer. The 2nd respondent, on the other hand, contended that more than Rs.14.50 lakhs is still due from the 1st petitioner.
4. On 29-6-2012, the 2nd respondent addressed a letter to the 1st petitioner informing the 1st petitioner that an amount of Rs.14,07,603/- together with interest is still due from the 1st petitioner and requested the petitioners to make payment of the same.
The 1st petitioner replied the same on 27-7-2012 stating that the 2nd respondent received excess payment of Rs.10,47,350/- and requested for the refund of the same. As already pointed out, the end customer addressed the 1st petitioner on 31-8-2012 informing that Rs.18,91,025/- was the excess payment.
The 2nd respondent however contended that the letter claimed to have been received by the 1st petitioner from the end customer is forgery and that the petitioners intended to have a wrongful gain from the 2nd respondent on the basis of such forged document.
5. The learned counsel for the petitioners tried to show that the alleged letter received by the 1st petitioner was in fact addressed by the end customer and that the letter was not a forgery. The 2nd respondent would appear to have addressed a letter to the Branch Office of the end customer at Hyderabad seeking information about the letter allegedly received by the 1st petitioner. The Branch Office of the end customer informed the 2nd respondent that they have not issued such a letter. Indeed, there was no endorsement by the Branch Office that the letter was forgery. The Branch Office merely stated that it did not issue such a letter.
6. The learned counsel for the petitioners produced an E-mail showing that the Head Office of the end customer informed the petitioners that it has addressed such a letter to the petitioners. As rightly submitted by the learned counsel for the 2nd respondent, these questions, viz., whether the alleged letter by the end customer was forgery and whether the end customer informed the petitioners that the end customer in fact addressed such a letter to the 1st petitioner are questions of fact which can be considered during trial only.
I am afraid that the petitioners cannot seek for the quashing of the FIR on the ground that the letter which was alleged to be forgery is not forgery in fact.
The investigation is still at the threshold. Police have not filed any charge-sheet on the complaint of the 2nd respondent. I consider that it would be appropriate to permit Police to investigate the case. However, where the petitioners contended that the alleged letter was not forgery, I consider it appropriate to direct the Police not to arrest the petitioners during the pendency of the investigation.
7. Accordingly, this criminal petition is disposed of directing the Police to proceed with the investigation of Crime No.26 of 2013 on the file of Golkonda Police Station, Hyderabad. However, Police are directed not to arrest any of the petitioners during the pendency of the investigation. The miscellaneous petitions, if any, pending in this petition shall stand closed.
19th June, 2014.
Dr. K.G.SHANKAR, J.
Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.4515 of 2013 19th June, 2014. (Ak)