Hon'ble Ashwani Kumar Singh,J.
Heard Sri Arun Sinha & Sri Siddharth Sinha, learned counsel for the petitioner, learned A.G.A.for the State of U.P.and Sri I.B.Singh, Senior Advocate, assisted by Sri Isan Baghel and Sri Vikas Singh, learned counsel for Opposite Party No. 3.
The petitioner Badri Narayan Tiwari preferred this writ petition with the following prayers :
A) issue a writ, order or direction in the nature of certiorari commanding the opposite parties for quashing the impugned FIR ( as contained in Annexure No. 1 & 2) registered at P.S. Hazratganj, Lucknow, at Crime No. 57/2014 under section 420,406,467,468,471,504,506,120-B, with the consequential inquiry, investigation being conduced on the basis of the said FIR B) issue an appropriate writ, order or direction, commanding the opposite parties, for staying the arrest of the petitioner in connection with the impugned FIR as contained in Annexure Nos. 1 & 2) registered at P.S. Hazratganj, Lucknow, at Crime No. 57/2014 under sections 420,406,467,468,471,504,506,120-B.
C)issue any other writ, order or direction, which this Hon'ble court deems fit and proper in the circumstances of the case.
The facts, in brief, of this case are that the impugned FIR has been lodged by respondent No. 3 Sri Ankur Gupta on 6.2.2014 at 2.30 P.M.in respect of the incident allegedly occurred from 8.8.2013 to 7.1.2014. The petitioner is named therein as accused alleging therein that the Company of the complainant running in the name and style of M/s A 2 Z Infrastructure Limited was awarded contracts for undertaking the 'Solid Waste Management' in various cities for 30 years under the JNNURM scheme and for which C & D. S. was appointed the nodal agency. The complainant company invested a lot of money. The amount of Government Grant, tipping-fees and the expenditure incurred by the complainant company was not given by the Government for no valid reason. The petitioner Badri Narayan Tiwari, Director, M/s Accord Hydroair Private Limited promised the complainant to get their dues cleared from C & D.S. Under a well designed plan, C & D. S. had created such a situation that the complainant company was left with no other option but to sign such M.O.U.s under which the various funds would go into the account of M/s Accord Hydroair Private Limited. The modus-operandi adopted by M/s Accord Hydroair Private Limited reflects in the letter dated 16.1.2014 written by the complainant company to the Director C & D.S. The complainant company had written a letter dated 30.12.2013 mentioning that the complainant company had suffered financial loss of about 22 crores and had requested for the cancellation of the M.O.U.s. In the meeting, the petitioner informed that the M/s Accord Hydroair Private Limited had submitted Bank Guarantee to the tune of Rs. 6 Crores with C & D.S. for and on behalf of the complainant company. The petitioner and C & D.S.has committed criminal breach of trust. Chartered Mercantile M.B. Limited is neither a schedule bank nor a Non Banking Financial Corporation ( N.B.F.C.), whereas according to concession agreement executed with C & D.S., the conditions for guarantee are properly provided, according to the condition, the proforma provided in the schedule only the Nationalised Bank/S.B.I..or its associates company are authorised. The company run by Haider Raza is neither the company nor comes under the purview of NBFC., it was having no authority to issue the guarantee. The company has committed the forgery in connivance with concerned officials of B.N.Tiwari and his company and the amount of Rs. 22 Crores was released without sanction of the complainant. The company of the petitioner has declared itself to be a Bank but at the time of its acceptance C & D.S. company had not made any objection. The complainant obtained copies of such bank guarantees of Rs. 6 crores. The first informant had come to know that C & D. S. had accepted and recommended some other bank guarantee of the petitioner company. Some other bank guarantees of the petitioner company accepted which was evident from the documents dated 8.8.2013, 16.12.2013 and 7.1.2014 issued by the Manager of its company in favour of C & D.S. Company. The cheating has been committed by the co-accused R.K. Gaur in connivance with officers of C. & D.S. Company and misappropriated the amount of Rs. 22 Crores. The amount payable to the company of the complainant was not paid for about 2 years and that amount was paid all of sudden by C.& D.S. Company in violation of Rules. When the complainant and his company's officers exchanged words with the petitioner in respect of the money, the petitioner abused the officers of the complainant's company and extended threat of their lives. In such manner the petitioner, co-accused R.K.Gaur and officials of Chartered Merchentile M.B.Ltd. and C & D.S.company committed the offence of cheating, forgery and misappropriated the amount in a pre planned manner in furtherance of the conspiracy punishable under sections 120-B, 405, 406, 420, 467, 468, 471, 504 and 506 I.P.C.
Being aggrieved from the impugned FIR, the petitioner has preferred present writ petition with the prayers to quash the same. The counsel for the petitioner has submitted :-
i.That the petitioner is innocent and he has not committed any crime as alleged by the prosecution.
ii.That the complainant neither lodged any FIR nor offered any reason for not lodging FIR against the concerned official of the Government of Uttar Pradesh, who had not released the payment to the complainant company without any valid reason and allegedly prepared ground for trapping the complainant company.
iii.That the complainant neither lodged any FIR nor offered any reason for not lodging FIR against the concerned official(s) of the C&D who have designed the plan for trapping and pressurizing the complainant company to enter into the MOUs with the company of the petitioner namely, M/S Accord Hydroair Private Limited.
iv.That the complainant had named Sri R.K. Gaur in the FIR as accused in the capacity of retired senior officer of C&DS.
v.That the complainant did not explain as to how he had mentioned the amount of Rs. 22 crores in his FIR as a matter of fact the complainant had given arbitrary fact and figures in this FIR vi.That with regard to the FIR regarding the bank guarantee of Rs. 6 Crores it is submitted that the neither the petitioner nor his company had submitted the bank guarantee on behalf of A2 Z and false allegation has been levelled against the petitioner.
vii.That with regard to the FIR regarding the bank guarantee of Rs. 6 Crores it is submitted that the neither the petitioner nor his company had submitted the bank guarantee on behalf of A2 Z and false allegation has been levelled against the petitioner.
viii.That the MOU contained clause 7 as settlement of Disputes which run as under :
Clause 7 : Settlement of Dispute: The parties shall endeavour to settle any dispute arising out of this MOU in a spirit of good faith and mutual understanding. Should this fail, any dispute arising out of this MOU shall be finally settled under the Arbitration and Conciliation Act, 1996 by referring the matter to a retired Judge and listed in the penal of Arbitrator of Hon'ble High Court of Allahabad. The place of arbitration shall be Lucknow, India. Any arbitration pursuant to this clause shall be conducted in English language. This clause shall survive expiration or sooner termination of this Agreement.
ix. That the impugned FIR and its consequential proceedings are hit by the provisions of law as contained in Section 5 of the Arbitration and Conciliation Act, 1996 For the sake of convenience in the arguments, the Section 5 of the Arbitration and Conciliation Act, 1996 is being reproduced herein under:
Section 5 of the Arbitration and Conciliation Act, 1996:Extent of Judicial intervention : Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part."
x. That it is the A2 Z Group and its Directors and officers who had committed various offence of cheating, forgery etc. with petitioner and his company with respect to which the petitioner had lodged the following FIRs against the Ato Z Group, the details of which is given as Crime no. 24 of 2014, under sections 420,467,468,471 I.P.C. P.S.Gomti Nagar, district Lucknow, Crime No. 32 of 2014, under sections 419,420,467,468,471,504,506 I.P.C. P.S. Gomti Nagar, district Lucknow, Crime No. 95 of 2013 under sections 419,420, 506 I.P.C. P.S. Gomti Nagar district Lucknow.
xi.That Naveen Agarwal and other have preferred a writ petition vide writ petition no. 547(M/B)/ 2014 Naveen Agarwal and other Versus The State and others in this Hon'ble Court for quashing the FIR vide Crime No. 24/2014 as mentioned above, in which the police had submitted report that prima facie offence is made out against Naveen Agarwal and others which was diposed of with the observation that "... it cannot be said that the ingredient of the offence which the petitioners are arraigned of, is not disclosed.
xii.That the police has submitted its report while opposing the aforesaid writ petition No. 547 (M/B)/2014, Naveen Agarwal and other The State and others in which the police has stated prima facie it is evident thatA2Z had usurped Rs. 52 Lakhs of M/s Accord with respect to the Car.
xiii.That it is relevant to mention here that the investigation of all the three FIRs lodged by the petitioner were transferred from Lucknow to Crime Branch Barabanki by means of the order 6.5.2014 of the I.G. and Assistant to DGP, U.P. Lucknow.
xiv.That the complainant company being so influential managed and the record of the three FIR could not be transferred from Lucknow to the Crime Branch, Barabanki and by means of another order dated 20.5.2014 the I.G. and Assistant to DGP U.P. Lucknow, the investigation of all the three FIRs lodged by the petitioner were transferred back to Lucknow.
xv.That Amit Mittal, Deepak Agarwal, Naveen Agrawal, and A.P. Agrawal surrendered in the Cout below in connection with the aforesaid Crime No. 24/2014 and they were released on interim bail upto 28.5.2014. Amit Mittal, Deepak Agrawal, Naveen Agrawal, and A.P. Agrawal being so influential, after the order of transfer of the investigation to Lucknow had taken the investigating Officer of Crime No. 24/2014 via Flight to Delhi to Gurgaon on 22.5.2014 for investigation and the investigating officer returned by Flight to Lucknow on 23.5.2014 and prepared Final Report on 23.5.2014. This shows the high-handedness of the complainant.
xvi.That the police acting in arbitrary manner and for some ulterior motive had submitted the Final Report in all the aforesaid three FIRs lodged by the petitioner.
xvii.That the petitioner and his company have filed as many as 17 Civil and Arbitration cases in the Court of District Judge, Lucknow, Civil judge, Senior Division, Lucknow and before the Arbitrator (Retd. District Judge).
xviii.That A2Z had deliberately refused to join the arbitration proceedings.
xix.That earlier the petitioner has moved an application before the Chief Judicial Magistrate, Lucknow for calling for a detailed report from the Investigating Officer of the case noted above upon which the investigating officer submitted his detailed report dated 13.5.2014 that several cases have been filed by the complainant, the accused as well as C&DS in various forums including the Arbitration Court and as per MOUs between the parties the disputes are to be settled by means of arbitration and in this context legal opinion was sought through the Circle Officer, Crime, Lucknow Upon this, the learned Chief Judicial Magistrate, Lucknow was pleased to summon a specific report whether any warrant has been issued against the petitioner or not. The investigating officer submitted vide his supplementary report dated 15.5.2014 that from the upto date investigation no such evidence has been gathered which would show that the petitioner has committed any offence and also no warrant has been issued against the petitioner. Accordingly the learned Chief Judicial Magistrate, Lucknow was pleased to dispose of the application of the petitioner vide its order dated 21.5.2014.
xx.That this show that since the impugned FIR was lodged on 6.2.2014 and through the investigation of the case for a period of more than 3 months and after considering the entire material and legal cases, the police had found in the month of May 2014 that no criminal case is made out against the petitioner.
xxi.That from the date of submitting reports by the investigating officer in the court of Magistrate ( i.e. 13.5.2014 and 15.5.2014) no new evidence has been collected in the investigation, till date to show the involvement of the petitioner in any criminal offence. This demonstrates that the police is arbitrarily harassing the petitioner for his arrest due to some ulterior motive.
xxii.That entirely false and concocted FIR has been lodged by the complainant in order to wreck vengeance and to harass and humiliate the petitioner.
xxiii.That the petitioner namely Badri Narayan Tiwari is an elderly person aged about 60 years xxiv.That the petitioner is a law abiding and respectable businessman and they would suffer irreparable loss if he is arrested and sent to jail in connection with the case noted above.
xxv.That no case under sections 420,406,467,468,471,504,506,120-B I.P.C. is made out against the petitioner.
xxvi.That it is settled law that any effort to settle civil disputes and claims, which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged.
xxvii.That it is settled law that it is to be ensured that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused.
xxviii.That in the present case the complainant had malafidely lodged the impugned FIR as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused.
xxix.That the prosecution has attended the case with malafide.
xxx.That the petitioner is not a previous convict.
xxxi.That the police is harassing the petitioner under direction of a senior IPS officer who is supporting the complainant in an unusual manner and wants to arrest him in connection with the case noted above.
xxxii.That the petitioner having no other alternative and efficacious remedy, is preferring this writ petition in this Hon'ble court.
In reply of the above contention, it is submitted by learned A.G.A.and counsel for the respondent No. 3 that the allegations made in FIR are prima facie disclosing the commission of the cognizabe offence. The petitioner is not cooperating with the investigation. The NBW has been issued against the petitioner by learned Magistrate concerned on 30.8.2014. The investigation of the impugned FIR is at the verge of conclusion but the petitioner is deliberately and intentionally not cooperating with the investigation. He is making best efforts to install the proceedings by abuse of process of law and various illegal means. The petitioner is having criminal antecedents, he is having strong links in power corridors of the State of U.P. , he is exercising pressure on the complainant company by various means and petitioner and other co-accused persons have deceived the complainant company and usurped the amount of Rs. 22 Crores. The co-accused R.K.Gaur, working as Consultant Technical Advisor in C & D.S. ( Construction and Design Services) which is the nodal agency of Jal Nigam with whom the agreement for the projects in question has been executed and they are responsible for the payments as well. The co-accused R.K.Gaur after completing his tenure as consultant with C & D.C. Joined M/s Accord Hydro Air Pvt. Ltd., he was Incharge of Solid Waste Management Project for entire Uttar Pradesh,he was in constant touch with the complainant company, he introduced the officers of the complainant company with the petitioner and with malafide intention insisted the officers of the complainant company to have agreement with the company of the petitioner. The accused persons in collusion with the petitioner and other co-accused in collution with officers of C & D.S. Company under the preplanned conspiracy with the intention to cheating, prepared forged documents by playing a fraud. The petitioner's company participated in the the tender and had been given some projects in the State of U.P. On 30.12.2013 Mr. Haider Raza wrote a letter to Director C & D.S.stating that they have issued 7 bank Guarantees amounting to Rs. 6,06,30,550 ( Six Crore Six Lakh Thirty Thousand Five Hundred Fifty Only) on various dates on behalf of M/s A2Z Management Ltd.
i. It was further mentioned that the said bank guarantees were issued on conditions that they will not be valid until the security amount is deposited and other formalities are completed.
ii.ii. It was further mentioned that a post dated cheque No.010478 dated 2812.2013 for Rs. 6,00,00,000/-( Six crore) issued from Union Bank of India was deposited with him in the form of FDR.
iii.M/S A2Z Infrastructure Ltd. has fraudulently taken the above guarantee and deposited in your department.
iv.That cheque No.010478, dated 28.12.2013 for Rs. 6.00.00.000/-( Six Crore) issued from Union Bank of India has been returned unpaid and necessary documents have also not been provided.
v.So the bank has cancelled the above said seven Bank Guarantee issued by them, which has been deposited with your department.
vi.Suitable action be taken against the Firm.
The cheque issued by the petitioner was dishonoured on 23.01.2014. Mr.Haider Raza himself was in great trouble on account of forgery committed in collusion and connivance with petitioner, in order to save himself, he wrote a letter dated 29.1.2014 to Director C & D.S. Company. Its reply was given by Project Director C & D.S.Company vide letter dated 12.2.2014. The officials of C & D.S. have accepted Bank Guarantee from the petitioner issued by Chartered Mercantile MB Ltd., they have been accepting the same from last many years. The officials of C & D.S.and Nagar Nigam have released huge payment in the name of M/s Accord Hydroair Ltd. without any consent or information to the complainant company. C & D.S. has released Rs. 17,95,66,000/- ( Seventeen Crore Ninety Five Lakh Sixty Six Thousand Only). Further Nagar Nigam has also released the amount of Rs. 5,57,54,612 ( Five Crore Fifty Seven Lakhs Fifty Four Thousand Six Hundred Twelve Only) to the petitioner which was legally due to the complainant company. The complainant company has made all efforts to get their legally due amount back from C & D. S. but the official denied any sort of help as they themselves were in collusion and connivance with petitioner and other co-accused. The complainant company had also made complaint before Enforcement Directorate in respect of the embezzlement of Government Funds by Ms. Accord Hydroair ( P) Ltd., Lucknow in connivance with M/s Chartered Mercantile MB Ltd. Lucknow and official of U.P.Jal Nigam. In such a circumstance, no relief may be granted to the petitioner. The present writ petition is devoid of the merits, the same may be dismissed.
Considering the facts, circumstances of the case, submissions made by counsel for the petitioner, learned A.G.A.for the State of U.P.and counsel for respondent no. 3 and from the perusal of the record it reveals that the allegations made in the impugned FIR, prima facie, disclosing the commission of the cognizable offence. There is no good ground to interfere in the impugned FIR, therefore, the prayer for quashing the FIR is refused.
However, considering the facts, circumstances of the case, it is directed that the petitioner shall not be arrested in above mentioned case, till the credible evidence is not collected by the I.O. during pendency of the investigation as per view taken by the Apex Court in the case of Joginder Kumar Vs. State of U.P. 1994 Cr. L.J.1981.
With the above direction this petition is finally disposed of.
Dated : September 23, 2014.
Su