Nekiram and Others vs State of Rajasthan

Mahesh Bhagwati, J.—This order governs the disposal of bail application filed u/s 438 of Cr.P.C. by Shri Rajesh Goswami, Advocate on behalf of the petitioners pertaining to F.I.R. No. 280/2009 of police station Anta, District Baran in the offence under Sections 420, 467, 468, 406 read-with Section 120B IPC.

Heard learned Counsel for the petitioners, learned Counsel for the complainant as also the learned Public Prosecutor for the State and perused the record of the case.

The factual matrix of the case, in nub, is that the complainant Rakesh Saroha, the power of attorney holder of M/s. Subhash Chandra and Company, Gurgaon has been doing the work of digging a pond in Anta. This work was being got done by National Thermal Power Corporation Limited (NTPC Limited). The complainant furnished the bills against the works he did, but the petitioners have not been making the payment thereof. On the contrary, they have been forging the level books, deducting the amount without assigning any reason and delaying the payment causing irreparable loss to the tune of crores to him. It is also alleged that the petitioners have been asking for payment of commission @ 10% of the total amount shown in the bill.

The learned Counsel for the petitioners has canvassed that the NTPC is a government undertaking and the petitioners are the officers employed there. It is very categorically stated in the MOU scribbled between the parties that any dispute arising with regard to quality of workmanship, or materials used on the work or any other question, claim, right, matter or thing whatsoever, shall be referred to the sole arbitration of the General Manager of NTPC Limited. There is an arbitration clause. Hence, from the facts, as narrated in the First Information Report, no offence is made out. The complainant is a contractor, who has been building up a pressure on the petitioners to make false payments. Hence, the petitioners may be granted indulgence of bail.

Learned PP as also the learned Counsel for the complainant, both, have vehemently opposed the bail application on the ground that petitioners have been functioning dishonestly and with a malafide intention. They have been asking for the payment of 10% commission on the total amount of works. They have committed a forgery also in the documents and level books, hence their bail application should be dismissed.

Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that there is an arbitration clause between both the parties that in the event of any dispute arising out of any work, is required to be referred to the sole arbitration of the General Manager of NTPC Limited and if the General Manager is unable or unwilling to act, then to the sole arbitration of some other person appointed by the Chairman and Managing Director, NTPC Limited.

Taking into consideration all the facts and circumstances of the case, I without expressing any opinion on merits and demerits of the case, but keeping in view the facts and circumstances in totality, do feel that this is a fit case, wherein the petitioners can be granted indulgence of anticipatory bail and their bail application deserves to be allowed.

Therefore, the SHO/I.O. Of the Police Station Anta, District Baran is directed that in the event of arrest of the petitioners (i) Neki Ram S/o Budhram; (ii) Ghanshyam Navrang, S/o N.L. Navrang; and (iii) Ishwar Prasad Sharma, S/o Chaturbhuj Sharma, in FIR No. 280/2009 registered for offence u/s 420, 467, 468, 406 readwith 120B of IPC, he shall enlarge them on bail, provided each of them furnishes a personal bond in the sum of Rs. 10,000/-(Rs. Ten Thousand Only) together with one surety in the like amount to his satisfaction on the following conditions:

(i) They shall make themselves available for interrogation by Investigating Officer as and when required:

(ii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;

(iii) They shall not leave India without the previous permission of the Court.

(iv) They will not commit any offence during the period of bail.