Raj Kumar Singla vs State of Punjab

K.S. Kumaran, J.

These two petitions have been filed by the same petitioners for grant of bail in anticipation of arrest in F.I.R. No. 213 dated 6.10.1998 registered at Police Station Samana, under Section 7 of the Essential Commodities Act and Sections 406/420 of the Indian Penal Code and, therefore, I am disposing of both the petitions by this common order.

The allegations in the F.I.R. are as follows :

Punjab State Civil Supplies Corporation (hereinafter referred to as PUNSUP) purchased paddy and they shelled it through millers. The two petitioners herein who are partners of the Rice Mills known as M/s Jethu Ram Rice Mills, entered into an agreement with the PUNSUP for the purpose of shelling and received 55512 bags of paddy "Grade A" for milling and as per the agreement, the milling was to be done by 28.7.1998 which was subsequently advanced to 30.6.1998 but the petitioners failed to deposit the entire quantity of rice. On 22.5.1998, a special (sic) it was found that there was shortage of 6249 bags of paddy. An affidavit was given on behalf of the petitioners on 23.5.1998 assuring to make good the loss of paddy by 30.6.1998. Two postdated cheques (dated 30.6.1998) in total for Rs. 25 lakhs were also issued by the petitioners in favour of the PUNSUP. The petitioners neither made good the loss of paddy nor deposited the rice. The cheques issued by the petitioners, when deposited in the bank on 30.6.1998 were returned dishonoured for want of funds. The petitioner have misapporpriated 7658 bags of paddy of the value of Rs. 27 lakhs approximately. It is on this basis the F.I.R. came to be registered.

The petitioners, therefore, approached the Special Judge, Patiala, with an application under Section 438 Cr.P.C. for bail in anticipation of arrest. The learned Special Judge, Patiala, after taking note of the facts above mentioned, considered that the accused are to be interrogated in custody, that recovery of the paddy i.e., the Government property is to be made from them, that the prosecution apprehends that if anticipatory bail is granted to them, they are likely to hamper the investigation by tampering with the evidence and, therefore, held that the petitioners are not entitled to the relief of bail. Accordingly, he rejected the bail application by his order dated 17.11.1998.

Therefore, the petitioners filed Criminal Misc. No. 31293M 1998 on the file of this Court, under Section 438 Cr.P.C. for bail in anticipation of arrest.

This Court on 26.11.1998 while ordering notice to the Advocate General, Punjab, directed that the petitioners shall not be arrested provided they deposited Rs. 10 lakhs into the account of PUNSUP by 10.1.1999. On 15.2.1999 this Court found that the petitioners had not deposited the amount as directed and therefore, declined the request of the petitioners for anticipatory bail observing that the interim order staying their arrest has lapsed. The application for review filed by the petitioners was also dismissed by this Court by order dated 25.2.1999.

The petitionersherein filed Criminal Appeal No. 453 of 1999 before the Hon''ble Supreme Court against the order of this Court, declining bail. The Hon''ble Supreme Court by the order dated 19.4.1999 observed that the two conditions imposed by the Court, i.e. the petitioners have to deposit Rs. 10 lakhs, and that noncompliance, debarred the petitioners from applying for regular bail cannot be sustained and, therefore, set aside the orders imposing conditions for the grant of anticipatory bail. The Hon''ble Supreme Court also directed that the High Court may reconsider the matter and pass appropriate orders in accordance with law, making it clear that they were not expressing any opinion as to whether a fit case under Section 438 Cr.P.C. at all has been made out or not.

As pointed out already, that being so, the petitioners have filed Crl. Misc. No. 12534M of 1999 dated 30.4.1999 for the same relief, stating that the Hon''ble Supreme Court has directed this Court to decide the case afresh. When the matter camp up before the Court for hearing, this Court felt that the Hon''ble Supreme Court had set aside the order passed by this Court dismissing the bail application filed earlier and had directed the Court to reconsider and pass appropriate orders and, therefore, it is only appropriate that the earlier application i.e. Criminal Misc. No. 31293M of 1998 should be restored back to the file and heard. Accordingly, the Registry was directed to put up the said Criminal Misc. No. 11293M of 1998 along with the fresh application namely Crl.Misc. No. 12534M of 1999. That is how these two petitions came to be heard together.

I have heard the counsel for both the sides, and perused the records on file.

The petitioners admit that PUNSUP entrusted with them 55512 bags of paddy for milling, but they only contend that as per the PUNSUP specifications the yield has to be 67% from each bag of paddy whereas the paddy that was supplied to the petitioners was in humid condition and as such the yield was only 59% resulting a shortfall of rice equivalent to 5678 bags of paddy. Petitioners contend that the paddy supplied was substandard and therefore, yield was less. The petitioners have specifically stated in their petition that they do not deny the shortfall of rice. The petitioners have also stated that they are willing to make good the shortfall by supplying the remaining 3486 bags of rice equivalent to 5678 bags of paddy. But they say that they have not mis appropriated 7658 bags of paddy as alleged in the F.I.R. The petitioners contend that they never intended to misappropriate the paddy. The petitioners also admit that the secondpetitioner has given an affidavit on 24.4.1998 that he is willing to supply the remaining rice in the near future and also that they had given two cheques, one for Rs. 10 lakhs and the other for 15 lakhs in favour of the PUNSUP, though they were undated. According to the petitioners, they were seeking more time for the supply of rice since the paddy in the open market was available at a higher market rate. The petitioner contend that in view of their request they had also requested the PUNSUP not to present the cheques for encashment. The contention put forward by the petitioners is not only that they did not intend to misappropriate the paddy but also there was a watchman of the PUNSUP in the premises in whose presence there could have been no misappropriation.

Therefore, I find that the petitioners were entrusted with 55512 bags of paddy and had agreed to return rice as per the specifications of the PUNSUP. As per specifications yield in terms of rice should be 67%. The contention of the petitioners is that the paddy entrusted by PUNSUP was of poor qualify and therefore, yield was only 59%. If that be so the petitioners should have immediately informed the PUNSUP about the same and sought for appropriate relief if that was permissible. On the contrary it is not stated that they had done so immediately. But on behalf of the petitioners an affidavit was also given (Annexure P1) that the rice will be supplied in the near future. The contention put forward by the State is that even the cheques issued by them have been dishonoured. It is stated that the value of the paddy is Rs. 27 lakhs approximately. The petitioners have stated that they were seeking for more time inasmuch as paddy in the open market is available at a higher rate. Therefore, in these circumstances, one can reasonably draw an inference that the petitioners have misappropriated paddy whether it be 5678 bags as admitted by the petitioner or 7658 bags as alleged by PUNSUP, and had disposed of the same otherwise because the price in the open market is higher. Now to say that the paddy supplied was of poor quality and the yield was less and, therefore, there was a shortfall cannot be accepted. Of course, the learned counsel for the petitioners pointed out that now the dispute between the parties has been referred to Arbitrator by PUNSUP and, therefore, the remedy is only of a civil nature and, therefore, the petitioners should be granted bail. Such a contention cannot be accepted. It is open to the party, who is of the view that there has been misappropriation of his or its property and that there has been cheating, to take recourse to the civil remedy as well as to the criminal proceedings. The learned counsel for the petitioners has not been able to point out that the reference of the dispute for arbitration is a bar for criminal proceedings. The petitioners have been giving undertakings that they will supply the rice in the near future but they had not carried out their promise. Thousands of bags of paddy have been mis appropriated though the petitioners would like to contend that there is only as shortfall due to the poor quality of paddy entrusted to them. Therefore, a rightly pointed out by learned Special Judge, custodial interrogation is necessary as to the circumstances under which and as to how the paddy was misappropriated. In these circumstances, I am of the view that the petitioners are not entitled to the relief of bail in anticipation of arrest.

Therefore, both these petitions are dismissed. But nothing mentioned herein should be taken as final expression of any opinion on merits. Keep copy of this order in both files.

Petitions dismissed.