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2009 Supreme(Gau) 774
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
P.K. Musahary, J.
Karan Luthra – Appellants
Vs.
State of Meghalaya – Respondent
Criminal Revision No. 1 (SH) of 2009
Decided On : 06.11.2009
For Appellant/Petitioner/Plaintiff:J.M. Choudhury, A.K. Agarwal, R.M. Khengton, S.P. Mahanta and R. Thapa, Advocates
For Respondents/Defendant:K. Sunar, Advocate
Headnote:
Indian Penal Code, 1860 - Section 405, 406 and 409 - Code of Criminal Procedure, 1973 - Section 397 , 401 and 482 - Arbitration and Conciliation Act 1996 - Section 34 - Offence of Criminal breach of trust - FIR - Evidence - Petitioner failed to submit returns of prizes as per terms/clauses of agreement - He rather disputed the amount payable to Government - An arbitrator was appointed by the Government and an award was passed in favour of Government and against petitioner directing him to pay as total dues to Government, which he failed to pay - State Government filed Money Execution Case in which petitioner filed objection by way of filing a miscellaneous application in Court of Assistant District Judge - Learned Counsel appearing for the petitioner submits that arbitrator appointed by State Government initiated arbitration proceeding to settle dispute between petitioner and respondent-State in regard to some dues from petitioner as organising agent as per agreement and in said arbitration proceeding petitioner was made liable to pay an amount to respondent-State - Respondent-State has not challenged aforesaid judgment and order dated and as such same has attained its finality - Therefore, as submitted present criminal proceeding cannot proceed inasmuch as petitioner has no dues or liability towards the respondent-State – Held, In spite of knowledge about aforesaid facts learned Chief Judicial Magistrate has framed charges against the petitioner under Sections 406 / 409 IPC - As on now no claim can be made by respondent-State against petitioner as award has been set aside and money execution case was also dismissed - That apart, respondent-State admittedly has not challenged order of learned Assistant District Judge, Shillong setting aside award of the arbitrator and also order dismissing money execution case - Order framing charges is an interlocutory order and same cannot be interfered with in exercising revisional power of court inasmuch as learned trial court has proceeded against petitioner even after claim of respondent/informant has been found to be unsustainable and for which, award of arbitrator has been set aside and consequently, money execution case was also dismissed - Court of considered view that if present criminal proceeding is allowed to proceed further, it would cause undue harassment to petitioner and it would also amount of abuse of process of the court - Court would direct for quashing of proceeding pending in court of learned Chief Judicial Magistrate and also for setting aside and quashing the impugned orders dated passed by learned Chief Judicial Magistrate in said proceeding- Application allowed.
P.K. Musahary, J.
1. Heard Mr. H. Abraham, learned Counsel, appearing for the petitioner and also heard Mr. K. Sunar, learned Addl. P.P. Meghalaya.
2. The petitioner has filed this application under Section 482 read with Section, 401 and Section 397 of the Code of Criminal Procedure, 1973 for quashing the proceeding in GR Case No. 28 (S) of 2007 pending in the court of the learned Chief Judicial Magistrate, Shillong and also for setting aside and quashing the impugned orders dated 16.9.2008 and 3.11.2008 passed by the learned Chief Judicial Magistrate, Shillong in the said proceeding.
3. The facts in brief, for the purpose of disposal of this matter, are that the Government of Meghalaya introduced the State Lottery in 1982 with an object of mobilising additional resources and it appointed the petitioner as Organising Agent by executing an agreement dated 4.6.1982. The said appointment was extended by executing 2 other agreements dated 5.6.1985 and 26.4.1988. The petitioner failed to submit returns of prizes as per the terms/clauses of the agreement. He rather disputed the amount payable to the Government. An arbitrator was appointed by the Government and an award was passed on 3.2.1998 in favour of the Government and against the petitioner directing him to pay Rs. 1,025.65 lakhs as total dues to the Government, which he failed to pay. The State Government filed Money Execution Case, in which the petitioner filed objection by way of filing a miscellaneous application in the Court of Assistant District Judge, Shillong. The said miscellaneous case was allowed by a judgment and order dated 26.9.2005 setting aside the award dated 3.2.1998. The State of Meghalaya preferred no appeal against the said judgment but lodged FIR on 11.7.2000 against the petitioner.
4. Mr. Abraham, learned Counsel appearing for the petitioner submits that the arbitrator appointed by the State Government initiated the arbitration proceeding to settle the dispute between the petitioner and the respondent-State in regard to some dues from the petitioner as organising agent as per the agreement and in the said arbitration proceeding, the petitioner was made liable to pay an amount of Rs. 1,025.55 lakhs to the respondent-State. The respondent-State filed a Money Execution Case No. 1(H) of 1999 before the Court of Assistant District Judge, Shillong. In the said proceeding, the present petitioner filed a miscellaneous application No. 25(H) of 2004. The said miscellaneous application was considered and heard by the learned Assistant District Judge and the same was disposed of by a judgment and order dated 26.9.2005 whereby the award dated 3.2.1998 passed by the arbitrator was set aside. It is also submitted that the money execution case was also dismissed. The respondent-State has not challenged the aforesaid judgment and order dated 26.9.2005 and as such, the same has attained its finality. Therefore, as submitted by Mr. Abraham, the present criminal proceeding cannot proceed inasmuch as the petitioner has no dues or liability towards the respondent-State.
5. Mr. Sunar, learned Addl. P.P. submits that the learned Chief Judicial Magistrate has already framed charges vide order dated 3.11.2008 which is an interlocutory order and the same cannot be sought to be quashed under Section 397(2) of the Cr. P.C. Moreover, in the judgment and order dated 26.9.2005 passed by the learned Assistant District Judge, Shillong in MC No. 25(H) of 2004, it is mentioned that the award of the learned arbitrator dated 6.3.1998 has been set aside. The award dated 6.3.1998 as stated in the said judgment and order is not connected with the present proceeding. In view of the above, he submits that the criminal proceeding cannot be quashed for the ends of justice.
6. There is no dispute that the petitioner was appointed as Organising Agent of the State Lottery by the Government of Meghalaya by executing an agreement dated 4.6.1982, which was extended from time-to-time The dispute arose be
