Insufficient evidence of corrupt intent and misappropriation led to the quashing of specific allegations under the Prevention of Corruption Act and IPC.

ORDER

The petitioner is the first accused in the case C.C.No.4/2021 pending in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur.

2. The offences alleged against the petitioner in the above case are under Sections 13 (1)(c) and 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409 , 420 and 120B of the Indian Penal Code .

3. The petitioner, the first accused in the case, was the Legal Officer in M/s.Malabar Cements Limited (for short 'the MCL Company'), a Government Company. The second accused in the case was the Managing Director of that company. The third and the fourth accused in the case were the Managing Director and the Director of the company “M/s.ARK Wood and Metals Private Limited” (for short 'the ARK Company').

4. The MCL Company had entered into an agreement on 18.11.2004 with the ARK Company for supply of fly ash for a period of nine years. As per Clause 19 of the agreement, it was provided that any dispute arising out of the contract shall be within the jurisdiction of the courts of Tuticorin, from where the supply is effected. As per Clause 20 of the agreement, it was provided that the MCL Company had the liberty to terminate the contract by giving notice of three months in writing and in that event, the ARK Company was entitled to get compensation of 50 lakhs rupees and in order to ensure it, the MCL Company shall furnish bank guarantee for equal amount.

5. Meanwhile, due to alleged non-payment of amount within the agreed time, the supply of fly ash to the MCL Company was stopped by the ARK Company. As per letter dated 17.09.2008, which was also sent by fax on 18.09.2008, the ARK Company informed the MCL Company that, if the issues were not settled within a week, it would invoke the bank guarantee.

6. The allegation against the first accused is that, pursuant to a conspiracy entered into by him with the third and the fourth accused, instead of filing suit against invocation of bank guarantee in the court at Tuticorin, he instituted a suit as O.S.No.555/2008 in the Munsiff's Court, Palakkad for that purpose, that too only on 23.09.2008. The Munsiff's Court, Palakkad returned the plaint with a direction to present it before the proper court having jurisdiction to entertain the dispute.

7. It is further alleged that, after return of the plaint by the Munsiff's Court, Palakkad, the first accused misled the company and filed an appeal before the District Court, Palakkad against the order of the Munsiff's Court, knowing fully well that there was no scope for an appeal. An appeal was filed as C.M.A.No.7 of 2009 but it was dismissed by the District Court, Palakkad on 31.10.2011.

8. It is also alleged that, the first accused misled the company and the Managing Director of the company and filed a petition before the Banking Ombudsman against the Canara Bank, Palakkad but it was dismissed on 03.03.2019.

9. It is alleged that the first accused had wasted precious time and failed to take effective steps to file suit against the ARK Company in the proper court and as a result, the bank guarantee of fifty lakhs rupees was invoked by the ARK Company, resulting in pecuniary advantage to that company and loss to the MCL Company.

10. The petitioner, the first accused in the case, has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-L final report and all proceedings against him in the case pending in the Special Court.

11. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the second respondent.

12. Learned counsel for the petitioner submitted that it was not the duty of the petitioner to advise the company regarding the forum for filing a civil suit. The duty of the petitioner was only to get legal opinion and convey it to the Managing Director and to act upon the instructions given by the Managing Director.