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2011 DIGILAW 825 (JHR)

Rajiv Gupta v. The State of Jharkhand

2011-09-02

PRASHANT KUMAR

body2011
JUDGMENT: This application is for quashing the order dated 11.2.2004 passed by Judicial Magistrate, Giridih in T.R. No. 612 of 2006 whereby he took cognizance of offence under section 406, 420 and 120 B of the IPC and also for quashing the order dated 30.11.2006 passed by Additional Sessions Judge, FTC-IV, Giridih in Cr. Revision No. 93 of 2006 whereby aforesaid order dated 11.2.2004, passed by learned Judicial Magistrate, had been confirmed. 2. It appears that a complaint petition filed in the court of learned CJM, Giridih stating therein that petitioner is Proprietor and Manager of Kaptan Hygiene Products Ltd and complainant was stockist of said company at Giridih. It is further stated that the petitioner's company was manufacturing washing soap. It is alleged that aforesaid company owe a sum of Rs. 1,85,000/-of complainant. It is then alleged that the accused/petitioner, with a view to cheat complainant made a telephonic call and asked him to come to their Delhi office with advance money for one truck of goods. It is further stated that during the said telephonic conversation , accused person promised to settle the pending claims of the complainant. It is further stated that complainant believed on aforesaid telephonic conversation and prepared five Demand Draft of Rs. 1,80,000/-from UCO Bank, Giridih . Thereafter on 30.5.2002 went to the Delhi office of accused persons along with witness Pawan Kumar Pilania. It is further stated that in the Delhi office, accused person settled part of the claim of complainant (to the extent of Rs. 83,750/-)and promised that the rest claim would be settled later on. It is further alleged that on that date itself, petitioner asked complainant to deposit money so that one truck of goods can be sent to the complainant. Believing on the promise made by the accused/petitioner, complainant handed over Rs. 1,80,000/-through five bank drafts and took receipt thereof. It is then alleged that thereafter complainant returned to Giridih, but the consignment never reached. Later on, complainant came to know that the petitioner had closed their factory from before 30.5.2002 and same fact was concealed by petitioner. Thus accused/petitioner had intention to deceive the complainant from before and by doing so they cheated complainant and took Rs. 1,80,000/-from him. Accordingly, it is alleged that the offence under section 420, 406 read with section 120B of the IPC is made out against the accused/petitioner. 3. Thus accused/petitioner had intention to deceive the complainant from before and by doing so they cheated complainant and took Rs. 1,80,000/-from him. Accordingly, it is alleged that the offence under section 420, 406 read with section 120B of the IPC is made out against the accused/petitioner. 3. It appears that complainant examined himself on S.A. and also examined witnesses in support of his case. The learned judicial magistrate after considering the materials prima facie come to the conclusion that the offences under section 420, 406 read with section 120 B of the IPC are made out accordingly vide order dated 11.2.2004 he took cognizance of the offences and issued process against the accused/petitioner. 4. It further appears that petitioner challenged aforesaid order dated 11.2.2004 by filing a criminal revision application i.e Cr. Revision No. 93 of 2006. In the said criminal revision, accused/petitioner assailed the order of judicial magistrate dated 11.2.2004 mainly on the ground that there is no material on record to show that petitioner induced complainant for making payment of Rs. Rs. 1,80,000/-, thus, no offence under section 406 and 420 of the I.P.C. made out. It is further submitted in the revisional court that from the allegations made in the complaint petition, it appears that the dispute between the parties is of civil nature and thus initiation of criminal proceeding is illegal and un-justified. It appears that the learned Additional District Judge ,FTC-IV, Giridih after considering entire materials available on the record, had prima facie come to the conclusion that offences under section 406, 420 read with section 120 B of the IPC is made out against the petitioner. Accordingly, he dismissed the revision application. Against the aforesaid two orders, present application filed. 5. It is submitted by Sri. Ram Avatar Sharma, learned counsel appearing for the petitioner that the allegations made in the complaint petition, even taken to be true on their face value, do not constitute offences under section 406, 420 of the IPC. It is submitted that there is no allegation that petitioner fraudulently and dishonestly induced complainant for payment of Rs. 1,80,000/-. It is submitted that there is also no averment to show that at the time of making representation petitioner's intention was dishonest. It is submitted that in fact a huge amount was due against the complainant and as a part payment, he had deposited Rs. 1,80,000/-. It is submitted that there is also no averment to show that at the time of making representation petitioner's intention was dishonest. It is submitted that in fact a huge amount was due against the complainant and as a part payment, he had deposited Rs. 1,80,000/-by five demand drafts and still a sum of Rs. 75435/-is due against complainant. It is submitted that only with a view to grab aforesaid amount, maliciously present complaint filed. It is submitted that the allegations made in the complaint petition shows that dispute between the parties is of civil nature, therefore, same can be resolved by a civil court. Accordingly, it is submitted that initiation of criminal proceeding is an abuse of the process of court, therefore same cannot be sustained. 6. Having heard the submissions, I have gone through the record of the case. In the complaint petition, it is alleged that complainant went to the Delhi office of petitioner on being called by accused No. 2 on telephone. It further appears that complainant on the basis of aforesaid telephonic assurance prepared five bank drafts , total of Rs. 1,80,000/-, in the name of petitioner's company. It is further alleged that on the assurance of petitioner and his accomplice complainant handed over aforesaid five bank drafts (total Rs. 1,80,000/-) to the petitioner, who issued receipt in acknowledgment of the same. It is alleged in the complaint petition that the said money was paid to the petitioner and co-accused for supply of one truck of washing soap in favour of complainant at Giridih. It is then alleged that the petitioner and co-accused did not supply aforesaid washing soap. It is further alleged that later on, complainant came to know that soap factory of the petitioner was closed from before 30.5.2002, the date on which assurance was made by petitioner for supply of soap. 7. Thus, in the complaint petition, there is allegation that complainant handed over Rs. 1,80,000/-to the petitioner through five bank drafts on the assurance that petitioner will supply one truck washing soap. It is alleged that workshop of petitioner was closed prior to 30.5.2002, which shows that the intention of petitioner in making the aforesaid assurance was dishonest, because if the soap factory was closed from before the date of assurance then supply of soap is not possible and this fact is known to the petitioner. It is alleged that workshop of petitioner was closed prior to 30.5.2002, which shows that the intention of petitioner in making the aforesaid assurance was dishonest, because if the soap factory was closed from before the date of assurance then supply of soap is not possible and this fact is known to the petitioner. Thus promise made by him is dishonest. Therefore learned courts below rightly come to the conclusion that prima facie offence under section 420 of the IPC is made out. 8. It is alleged that the petitioner took Rs. 1,80,000/-through five bank drafts for supply of soap, but he did not supply and used said money for his own purpose. Thus offence under section 406 of the IPC is also made out. It appears that petitioner along with other co-accused hatched conspiracy for cheating, accordingly, offence under section 120B of the IPC is also made out. 9. The contention of Sri Sharma that dispute between the parties is a civil dispute, therefore the criminal proceeding cannot be initiated , appears to be misconceived. 10. It has been held by their Lordship of Supreme Court in Rajesh Bajaj and others vs. State of NCT of Delhi and others reported in (1999)3 SCC 259 that “ It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transaction.” 11. Thus, in view of the aforesaid decisions, even if the facts stated in the complaint petition also disclose civil liability, the criminal proceeding cannot be quashed for the said reason. Both the proceeding can run simultaneously in different courts, because the nature, scope and standard of proof required in civil and criminal proceeding are different. 12. In view of the discussion made above, I find no illegality and/or irregularities in the impugned orders, which require any interference by this Court. 13. Thus, I find no merit in this application, same is, accordingly, dismissed.