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2012 DIGILAW 823 (PAT)

Supriya Chaudhary v. State of Bihar

2012-06-18

ASHWANI KUMAR SINGH

body2012
JUDGMENT A.K. SINGH, J.:- Heard Mr. Ashutosh Kumar, learned counsel for the petitioners, Mr. Akhileshwar Prasad Singh, learned senior counsel for the opposite party no.2 and Mr. Matloob Rab, A.P.P. for the State. 2. The present application has been filed under Section 482 of the Code of Criminal Procedure on behalf of the five petitioners for quashing the order dated 25.5.2006 passed by Shri Bharat Tiwari, Judicial Magistrate, Ist Class, Patna in Complainat Case No. 2518(c) of 2005 by which finding a prima facie case to be made out under Sections 406, 420 and 120B of the Indian Penal Code, the petitioners have been summoned to face trial. 3. The opposite party No. 2 filed a complaint in the court of learned Chief Judicial Magistrate, Patna vide Complaint Case No. 2518(C) of 2005 on 26.8.2005 alleging inter alia that pursuant to the advertisement published in local Hindi Daily (Dainik Jagran) inviting tender by Andrew Yule & Company Ltd. (hereinafter referred to as ‘the Company’) for construction of compound wall and iron fencing at Katra, Patna City. The complainant filed tender which was accepted and accordingly work order to the tune of Rs. 17,28, 645/- (Seventeen Lacs Twenty eight thousand six hundred and forty five) was allotted to the complainant for completion of the aforesaid work as per specification of the Bihar State Electricity Board. 4. It has further been alleged in the complaint that as per the terms of agreement, 30% or a sum of Rs. 5,00,000/- (Five Lacs) was to be given to the contractor in advance for purchasing raw-materials and, accordingly, the company paid a sum of Rs. 5,00,000/- (Five Lacs) to the complainant and, thereafter, the complainant commenced the work. 5. It has been alleged that for ongoing construction work, payment was to be made only after certification of the bills by the Site Engineer of the Company. The bills were sent, thereafter, to the headquarters of the Company at Kolkata. It has been alleged that the work upto 75% has been completed by the complainant but instead of Rs. 14,33,904/-, the Company paid him only a sum of Rs. 5,00,000/- in advance and, thereafter, further a sum of Rs. 2,00,000/- only had been paid to the complainant and in spite of repeated requests, the bills submitted by the complainant have not been cleared by the Company and as such, the present complaint has been filed. 6. 14,33,904/-, the Company paid him only a sum of Rs. 5,00,000/- in advance and, thereafter, further a sum of Rs. 2,00,000/- only had been paid to the complainant and in spite of repeated requests, the bills submitted by the complainant have not been cleared by the Company and as such, the present complaint has been filed. 6. The learned Chief Judicial Magistrate, Patna after examining the complainant on oath on 5.1.2006 made over the case to another Judicial Magistrate under Section 192 of the Code of Criminal Procedure for inquiry and disposal. The transferee court after holding inquiry under Section 202 of the Code of Criminal Procedure, found a prima facie case to be made out under Sections 406, 420 and 120B of the Indian Penal Code, and, thus, summoned the petitioners by the impugned order dated 25.5.2006. 7. It is submitted by Mr. Ashutosh Kumar, learned counsel for the petitioners that the Company issued work order on a printed form on 2.2.2001 for construction of boundary wall as per approved drawing for a total estimated cost of Rs. 17,28,656.98 after deducting a sum of Rs. 90,981.95 from the total sum of Rs. 18,19,638.93 as per the terms and conditions of the Company. The work order in question has been brought on record and marked as Annexure-2 to the petition. 8. He submits that from perusal of the terms and conditions as also from the averment made in the complaint, it would appear that an advance amount of Rs. 5,00,000/- (Five Lacs) lump-sum was paid immediately after release of work order. The bills sent by the complainant in terms of the work order on verification were found to be highly inflated. 9. It is submitted that it is not correct that 75% of the work has been completed. As a matter of fact after thorough verification of the bills submitted by the complainant, the Site Engineer found that only 58% of the total work could be complete. The Company after getting final measurement of the boundary wall of Katra site sent a letter to the complainant on 6th July, 2005, asking him to attend at the site along with all papers and documents for measurement, failing which, the Company would presume the report of the Site Engineer in respect to the measurement to be correct and would act accordingly. 10. 10. It is further submitted on behalf of the petitioners that the complainant by letter dated 9.7.2005 informed the Company that on account of marriage of the grand daughter of the complainant, he was unable to be present at site on 11.7.2005 and, therefore, requested the company to fix another date and time for final measurement. The complainant, thereafter, never came for final measurement of the work done on the dates fixed by the Company in presence of the duly authorized Site Engineer of the Company. He insisted for payment of a false and inflated bill. The Company took sincere efforts for measurement of the work done and found only 58% of the work done at the site. The Company also forwarded to the complainant certified copy of relevant pages of measurement book confirming that on verification even by the Bihar State Electricity Board, the total measurement of work done was found only upto 58 %. 11. Learned counsel for the petitioners further submits that admittedly the company has paid to the complainant a sum of Rs. 7,00,000/- and further a sum of Rs. 1,12,000/- has also been paid to the complainant after deducting 10% sales tax, 12. In sum and substance, his submission is that the Company in question has made payment of the proportionate amount of work carried out by the complainant and as per the verification made by the Company, no amount at all is due to be paid to the complainant. 13. His next argument is that the Company in question was founded in 1863 and was incorporated as private limited in the year 1890. The Company was converted into public Ltd. Company in 1948 and became a Central Public Sector Enterprises (Schedule-B Company) in 1979 and, thus, the Company is now a Public Sector Company under the Ministry of Heavy Industries and Public Enterprises. 14. He submits that petitioner no. 1 worked as General Manager (Project, Spares and Services), petitioner no. 2 worked as Deputy General Manager (Project, Execution), petitioner no. 3 worked as Senior Manager (Marketing Project), petitioner no. 4 worked as Officer (Materials) and petitioner no. 5 worked as Manager (Finance & Accounts) of the Company. 14. He submits that petitioner no. 1 worked as General Manager (Project, Spares and Services), petitioner no. 2 worked as Deputy General Manager (Project, Execution), petitioner no. 3 worked as Senior Manager (Marketing Project), petitioner no. 4 worked as Officer (Materials) and petitioner no. 5 worked as Manager (Finance & Accounts) of the Company. He submits that they in their individual capacity cannot be held liable for any criminal prosecution as the work was allotted to the complainant not by the petitioners but by the Company, which has not even been made accused in the present case. According to him, in any view of the matter, it is a question of accounting and if the complainant had any grievance, he could have pursued his remedies in a civil suit but in no case, there could have been a prosecution in criminal case. 15. On the other hand, Mr. Akhileshwar Prasad Singh, learned Senior counsel for the opposite party no. 2 submits that the complainant has supported his allegation made in the complaint by examining himself on oath and producing witnesses in support of his claim in course of inquiry under Section 202 of the Code of Criminal Procedure. The learned Magistrate on the basis of materials available on record has found a prima facie case to be made out and has summoned the petitioners. He submits that for a dispute where civil remedies are available from a breach of contract, remedy under the criminal law is also not barred. 16. Having heard the parties and from materials available on record, I find that the fact disclosed in the complaint petition lacks bona fide. There is complete absence of elements which constitute the offence of cheating as well as criminal breach of trust. It is well-settled that mere breach of trust does not give rise to the criminal prosecution for cheating unless fraudulent or dishonest intention since inception is shown. The facts disclosed in the complaint petition did not show that there was any dishonest or fraudulent intention at the time when the work order was given. The complainant admits to have received Rs. 7,00,000/- out of the contract in question. The facts disclosed in the complaint petition did not show that there was any dishonest or fraudulent intention at the time when the work order was given. The complainant admits to have received Rs. 7,00,000/- out of the contract in question. The Apex Court has time and again drawn attention to the growing tendency of the complainant’s attempting to give the cloak of a criminal offence to the matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. A duty has been cast upon the court to ensure that proceedings before it are not used for settling scores or pressurising parties to settle civil disputes. 17. The complainant in order to prove offence of cheating is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even, in case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to be made out. 18. I further find that in the present case, there was no entrustment of property to the accused. Before a person can be said to have committed criminal breach of trust punishable under Section 406 of the Indian Penal Code, it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use. It must be further show that such dominion was the result of entrustment. Section 405 defines criminal breach of trust to mean:- “405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. The essential ingredients of the offence under Section 406 of the Indian Penal Code are as follows:- “(1) a person should have been entrusted with property, or entrusted with dominion over property; (2) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 20. From the entire complaint, I do not find that there is any whisper that the petitioners were ever entrusted with any property. 21. The act of breach of trust per se may involve a civil wrong but a breach of trust with an ingredient of mens rea would give rise to a criminal prosecution. The element of ‘dishonest intention’ is, therefore, an essential element to constitute the offence of criminal breach of trust. Breach of trust simplicitor is not an offence as it does not associate with an intention which is dishonest. 22. I further find substance in the argument made on behalf of the petitioners that the work order was given to the complainant by the Company. The dispute in respect to the measurement of work done by the complainant or payment made to the complainant was with the Company. The Company itself has not been impleaded as an accused. The petitioners, who are officers of the Company cannot be held vicariously liable for any act of omission or commission made by the Company. The penal code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability. The learned Magistrate failed to pose on to himself viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the petitioners herein were personally liable for any offence. 23. The company in question is a body corporate. It is a juristic person having a right to sue with a liability to be sued. Vicarious liability of the officers attached with an incorporated company would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liability. 23. The company in question is a body corporate. It is a juristic person having a right to sue with a liability to be sued. Vicarious liability of the officers attached with an incorporated company would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liability. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. I must note here that in terms of the explanations appended to Section 405 of the Indian Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. However, in the present case, since there was neither any entrustment made to the petitioners nor any dishonest mis-appropriation on their part nor the liability to make payment was from the personal account of the petitioners, they cannot be held liable for any amount which may be found due on proper accounting being made. The liability, if any, would be upon the Company with whom the complainant entered into agreement. 24. Thus, in the facts and circumstances of the present case, I find that by no stretch of imagination, on the basis of material available on record, the learned Magistrate would have come to a conclusion that a prima facie case under Sections 406, 420 and 120B of the Indian Penal Code is made out in order to summon the petitioners to face trial. 25. For the reasons assigned hereinabove, the order impugned is bad in the eye of law. In the result, the proceedings of Complaint Case No. 2518(C) of 2005 including the order dated 25.5.2006 passed in the aforesaid case, pending in the court of Shri Bharat Tiwari, Judicial Magistrate, Ist Class, Patna are quashed. 26. The application stands allowed. Application allowed.