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Jharkhand High Court · body

2010 DIGILAW 512 (JHR)

Ajay Kumar Kejriwal v. State of Jharkhand

2010-04-21

R.R.PRASAD

body2010
Order All the three writ applications were heard together and are being disposed of by this common order as all the three cases arise out of the same case. 2. All the three cases have been filed on behalf of the petitioners for quashing the first information report of Giridih (Muffasil) P.S. Case No. 65 of 2009 (G.R. No. 445 of 2009) instituted under Sections 406, 420, 467, 468, 471 of the Indian Penal Code and also under Section 56 of the Jharkhand Mineral and Mines Samudan Niyamawali, 2004. 3. The facts leading to filing of all the three cases are that a team consisting of four persons including Assistant Mining Officer, Giridih (informant) inspected Hard-coke factory a unit of M/s Swati Sponge & Iron (P) Ltd., Mohanpur, Giridih on 16.1.2009. During inspection 4585.13 matric tones of coal were shown to have been consumed from 15.4.2008 to 15.1.2009 whereas, as per the production schedule of the Company, total consumption of coal would have been 6480 metric tonnes. On this assumption an opinion was formed that entry mode in the books of account of total consumption of coal is less by 1894.87 metric tonnes and thereby royalty payable on the said quantity of coal to the extent of Rs. 4,73,718/- was not paid by the Company. 4. It was also found that huge quantity of mines and minerals were used to construct the Blast-furnace, Hard-coke plant etc. in which bricks, stones, sand were used but royalty on the said minor and minerals which comes to Rs. 3,20,000/- was not paid. Thus, it has been alleged that the Company by indulging itself in illegal act has misappropriated a sum of Rs.12,67,437/-. 5. Thereupon the matter was brought to the notice of the Deputy Commissioner, Giridih, who directed the Assistant Mining Officer, Giridih, respondent no. 3,20,000/- was not paid. Thus, it has been alleged that the Company by indulging itself in illegal act has misappropriated a sum of Rs.12,67,437/-. 5. Thereupon the matter was brought to the notice of the Deputy Commissioner, Giridih, who directed the Assistant Mining Officer, Giridih, respondent no. 2 to take legal action and upon which, respondent no.2 lodged the case which was instituted as Giridih (Muffasil) P.S. Case No. 65 of 2009 under Sections 406, 420, 467, 468, 471 of the Indian Penal Code and also under Section 56 of the Jharkhand Mineral and Mines Samudan Niyamawali, 2004 against the Ajay Kumar Kejriwal, Director of the Company [petitioner in W.P.(Cr.) No. 458 of 2009] as well as other Directors, namely, Amit Kumar Kejriwal and Sumit Kumar Kejriwal [petitioners in W.P.(Cr.) No. 52 of 2010], and also against the Manager, Sanjit Kumar Marodia [petitioner in W.P.(Cr.) No. 53 of 2010]. 6. Mr. Sumeet Gadodia, learned counsel appearing for the petitioners submitted that the Company, M/s Swati Sponge & Iron (P) Ltd. has been engaged in manufacturing Sponge Iron for which raw-materials, Iron Ores and Hard-coke is required and as such, Hard-coke Plant was established in the said Company for conversion of the coal into Hard-coke which is being used in the Blast-furnace and for this purpose, the Company purchases coal from various mines owners including M/s Central Coalfields Limited after paying due royalty. While the Company was engaged in its activities, an inspection was made and the inspection team after verifying the stock put allegation that the Company though has shown in the books of accounts purchase of coal to the extent of 4585.13 metric tonnes but the production schedule does suggests that it would have consumed more coal than what has been shown in the books of accounts and thereby it has been said that the Company has not paid royalty on the excess coal which was assessed as 1894.87 metric tonnes and for that, prosecution has been launched whereby it has been alleged that the petitioners, three of them are Directors and one of them is Manager of the Company have committed offence of forgery as well as cheating. But the allegations even if are accepted to be true, the petitioners at no stretch of imagination can be said to have committed offence of forgery, cheating or misappropriation. 7. But the allegations even if are accepted to be true, the petitioners at no stretch of imagination can be said to have committed offence of forgery, cheating or misappropriation. 7. Learned counsel further submitted that, as per the case of the prosecution, the petitioners have also been alleged to have contravened Rule 56 of the Jharkhand Mineral and Mines Samudan Niyamawali, 2004' as it is said that the petitioners did not pay royalty on the minor minerals used in constructing the Blast-furnace and other plants but that provision never appears to be penal and as such, no prosecution would lie under that provision. Thus, it was submitted that allegations made in the first information report do not constitute any of the offences under which case has been lodged and therefore, first information report is fit to be quashed. 8. A counter affidavit has been filed in one of the cases, bearing W.P.(Cr.) No. 458 of 2009, wherein same plea which is there in the enquiry report which is the part of the first information report has been taken stating therein that .the petitioners though consumed more coal than what was shown in the books of accounts and as such, the petitioners were liable to pay royalty on the excess coal used to the extent of 1894.87 metric tonnes but the same was not paid and, hence, the petitioners have committed offences of cheating, forgery and misappropriation and also committed offence under the Jharkhand Mineral and Mines Samudan Niyamawali, 2004 as royalty on the minor minerals had also been not paid. 9. Having heard learned counsel appearing for the parties, case of the prosecution appears to be of non-payment of royalty on the excess coal though allegedly used but was not shown in the books of accounts. The opinion regarding excess use seems to have been formed on• the basis of some calculation after taking into account the total production of the finished goods and the coal which would have been used in producing the finished goods. How far the calculation is correct, this court is not supposed to go into this matter but taking into account the case of the prosecution itself that no royalty was paid over 1894.87 metric tonnes of coal, the question does arise as to whether it makes out a case of the forgery, cheating or misappropriation as contemplated under the Indian Penal Code? 10. 10. The condition precedent for constituting offence under Sections 467, 468, 471 and 472 is forgery which gets attracted when one makes a false document (or false electronic record or part thereof) in terms of Section 464 of the Indian Penal Code. 11. An• analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories:- 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. 12. In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 13. Under the aforesaid circumstances, even if no royalty has been paid on 1894.87 metric tonnes of coal, the petitioners cannot be said to have committed offence of forgery as the petitioners have never been alleged to have altered or tampered a document or obtained a document by practicing deception or from a person not in control of his senses nor can be said to have executed a document claiming to be someone else or authorized by someone else and as such, no offence is made out either under Sections 467, 468, 471 or 472 of the Indian Penal Code. 14. 14. So far the offence of cheating and misappropriation is concerned, I failed to understand as to how the alleged act constitute offence either under Section 406 or 420 of the Indian •Penal Code as he petitioners have never been alleged to have deceived anyone either by making a false or misleading representation or by any other action or omission, nor it is the case that the petitioners did offer any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Therefore, no offence of cheating or misappropriation is made out from the allegation made in the first information report. 15. So far matter relating to contravention of Rule 56 of the Jharkhand Mineral and Mines Samudan Niyamawali, 2004 is concerned, Rule 56 does stipulate that all the persons engaged in the construction process would ensure that the minor minerals being used in the construction work is purchased under valid challan from the licensees, failing which the person would be liable to pay the royalty and penalty thereof which itself makes out clear that if the royalty is not paid, the person at fault can be proceeded with for realization of the amount and as such, it involves civil consequence. Consequently, one cannot be fastened with criminal liability. 16. Under the circumstances, I do find that the allegations made in the first information report never constitute any of the offences under which it has been registered and, therefore, it is fit to be quashed. Accordingly, it is quashed. In the result, all the three writ applications are allowed.