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2013 DIGILAW 1131 (PAT)

Rabindra Nath Tiwari v. State Of Bihar

2013-09-17

AHSANUDDIN AMANULLAH

body2013
ORDER Learned counsel for the petitioners, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2 are present. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of order dated 28.06.2012 passed by the Chief Judicial Magistrate, Vaishali at Hajipur in Lalganj P. S. Case No. 154 of 2009 by which cognizance has been taken against the petitioners for offence punishable under Sections 406/420/467/468/34 of the Indian Penal Code. 3. The opposite party no. 2 had filed complaint against the petitioners alleging therein that on 10.12.2008 the petitioners had come to the house of the complainant and had showed a contractor agreement paper of B.E.M.L. Ltd.-cum-Industrial Marketing and offered the complainant to work as Contractor and Supervisor in the Industrial Marketing at Allahabad for retrofitting of railway coaches by making the double berths into triple births. It is stated that he was assured that the entire labour cost minus the materials would be paid to the complainant. It is further submitted that the complainant did the work between the period 18.12.2008 to 04.09.2009 under the North Central Railway at Allahabad as Supervisor-cum-Contractor for B.E.M.L. Ltd.-cum-Industrial Marketing and completed the said work in 33 coaches. It is submitted that the labour cost of Rs. 8,79,450-/ was payable to the complainant but the petitioners paid only Rs. 1,29,273/- and also created obstacle in the work. It is further submitted that only Rs. 61,573/-, 15,000/-, 5700/-, 12,000/- and Rs. 35,000/- were paid but with regard to the rest, on some pretext or the other, payment was not made and thus it is alleged that the petitioners had cheated the complainant of Rs. 7,50,187/-. 4. Learned counsel for the petitioners submits that from the entire reading of the complaint which has been converted into an F.I.R., it is clear that the dispute is purely of a civil nature relating to a commercial contract. It is submitted that as per the complaint, the complainant was given work to be completed at Allahabad for the Railways, by the Company represented by the petitioners. It is further submitted that despite the work having been completed for an amount of Rs. 8,79,450/-, only Rs. 1,29,273/- had been paid. It is further alleged that certain amounts were paid by the petitioners to the complainant but the remaining amount of Rs. It is further submitted that despite the work having been completed for an amount of Rs. 8,79,450/-, only Rs. 1,29,273/- had been paid. It is further alleged that certain amounts were paid by the petitioners to the complainant but the remaining amount of Rs. 7,50,187/- still remains outstanding and the same has been fraudulently withheld. Learned counsel submits that from the entire reading of the complaint, it would be clear that the complainant has admitted that he was given a sub-contract by the Company represented by the petitioners for completing certain work for the Railways at Allahabad. It is further submitted that the Company itself operates from Kolkata in the State of West Bengal. Learned counsel submits that pursuant to the stand in the complaint that work for more than Rs. Eight Lakhs was done and payment made was only of about Rs. 1.29 Lakhs, the civil nature of the dispute is writ large inasmuch as it is not a case where no payment has been made by the complainant for whatever work he may have done and rather there is an admission that certain payments were made, though it is alleged that full and final payment, has not been made. Learned counsel refers to Annexure-2 of the application which is letter dated 6th March, 2008 which shows that pursuant to the railway authorities having given contract to B.E.M.L. Ltd., for execution of work, B.E.M.L. Ltd. had appointed IMECO Ltd. as Contractor. Thereafter, IMECO Ltd. had entrusted the work for the specific site to Industrial Marketing. Learned counsel has also referred to Annexure-3 which is copy of voucher showing that the complainant was appointed as Supervisor to supervise the work at Allahabad site as a temporary salary based employee. After being paid salary from time to time, he had left work at his own free will and the office of the petitioner no. 1 had paid all arrears of salary and full and final settlement for the work period 17.12.2008 to 31.01.2009 which was accepted by the complainant who also signed on the same on 05.02.2009. This, according to learned counsel for the petitioners, is clearly a civil dispute arising out of contractual matters during the course of business involving financial transactions. 1 had paid all arrears of salary and full and final settlement for the work period 17.12.2008 to 31.01.2009 which was accepted by the complainant who also signed on the same on 05.02.2009. This, according to learned counsel for the petitioners, is clearly a civil dispute arising out of contractual matters during the course of business involving financial transactions. It is submitted that in the complaint there is no allegation as to any act of inducement on the part of the accused (petitioners) and intention to cheat the complainant from the very inception since after the work, payments have been made of quite a huge amount to the complainant. In such a case, the Courts have interfered in the matter under Section 482 of the Code. For such proposition, learned counsel for the petitioners has relied upon a decision of the Hon’ble Supreme Court in the case of Vir Prakash Sharma v. Anil Kumar Agarwal reported in (2007) 7 Supreme Court Cases 373. Learned counsel further submits that merely because the petitioners are alleged to have failed to honour any agreement, it cannot be said that they had cheated the complainant. In the present case, though some amount was paid to the complainant but it is alleged that the balance was not paid. Thus, according to him, no case for prosecution is made out under Sections 406 and 420 of the Indian Penal Code. For such proposition, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Murari Lal Gupta v. Gopi Singh reported in (2005) 13 Supreme Court Cases 699. Learned counsel also submits that the law is settled on the point that a complaint alleging violation or dispute due to breach of contract, is a misuse of the criminal process to put undue pressure in civil disputes and an application under Section 482 of the Code is maintainable for quashing such proceeding. For such proposition, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. reported in (2006) 6 Supreme Court Cases 736, the relevant being at paragraph-12. 5. Learned A.P.P. for the State submits that from the allegations made in the complaint case, it is apparent that the dispute is with regard to the accounting and payment arising out of a contract which essentially is civil in nature. 5. Learned A.P.P. for the State submits that from the allegations made in the complaint case, it is apparent that the dispute is with regard to the accounting and payment arising out of a contract which essentially is civil in nature. 6. Learned counsel for the opposite party no. 2 raises a preliminary objection and submits that charges have been framed against the petitioners by the Court below on 22.02.2013 which has not been disclosed in the present application and as such on this ground alone, this Court may dismiss the application. For such proposition, he has relied upon a decision of the Hon’ble Supreme Court in the case of Moti Lal Songara v. Prem Prakash reported in 2013 Cri. L. J. 2977, the relevant being at paragraph-18. Coming to the other submissions advanced on behalf of the petitioners, he submits that civil and criminal proceedings can run simultaneously for which there is no bar in law and thus in the present case also the complainant having a civil remedy will not preclude him from instituting criminal proceeding, if a case is made out. For such proposition, he relies upon a decision of the Hon’ble Supreme Court in the case of A. E. Rani v. V.S.R. Sarma reported in (1995) 1 Supreme Court Cases 627. Learned counsel further submits that the power under Section 482 of the Code should be used sparingly as the nature and scope of and standard of proof required in civil and criminal proceedings are distinct. It is submitted that when once the Court has prima facie found the complaint true against the accused, quashing of criminal proceedings may not be justified. For such proposition, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Kamala Devi Agarwal v. State of West Bengal reported in (2002) 1 Supreme Court Cases 555. Learned counsel has also opposed the present application on the ground that after framing of the charge, the case has moved to another stage and the present application challenging the order taking cognizance has become infructuous. 7. Learned counsel for the petitioners, by way of reply, submits that as far as the preliminary objection of the learned counsel for the opposite party no. 2 is concerned, the same is misplaced and also misconceived. 7. Learned counsel for the petitioners, by way of reply, submits that as far as the preliminary objection of the learned counsel for the opposite party no. 2 is concerned, the same is misplaced and also misconceived. It is submitted that the present application was presented before the Registry of this Court on 05.02.2013 after the affidavit being affirmed on 04.02.2013, i.e., much before the order framing charge dated 22.02.2013 and thus the same could not have been incorporated in the present application. It is further submitted that the decision relied upon by learned counsel for the opposite party no. 2 in the case of Moti Lal Songara (supra) was in the background of a case in which the revisional court was not informed about framing of charge and an order was passed which was challenged before the High Court. In that background the Hon’ble Supreme Court has held that the said fact being suppressed at the time of passing of an order disentitled a party from relief as it amounted to playing fraud with the Court. In the present case, it is submitted that before the matter was heard by this Court, it has already been brought to the notice of the Court that charges have been framed and thus there cannot be any comparison between the factual matrix of the case before the Hon’ble Supreme Court and the present case as it cannot be said that this Court has been kept in the dark about framing of the charge and the matter has been finally decided. With regard to the decision relied upon by the learned counsel for the opposite party no. 2 in the case of A. E. Rani (supra) he submits that in the said case, the fact was that there was a civil litigation pending between the parties with regard to partition of immovable property of the appellant’s husband whereas the criminal case was with regard to forcible removal of moveable articles and thus there was no similarity between the two and both the civil and the criminal case required to be proceeded with and thus the Hon’ble Supreme Court has held that the criminal proceeding could not be quashed, whereas in the present case the dispute in the entire complaint was of a civil nature. Similarly, it is submitted that in the case of Kamala Devi Agarwal (supra) the allegation against the accused was of forgery of a document and thus pendency of a civil proceeding in which the said document was involved was not enough to quash the criminal proceedings merely because in a case of forgery there is some element of civil nature whereas in the present case there is no similarity on facts. Thus, according to learned counsel for the petitioners, the decisions relied upon by the learned counsel for the opposite party no. 2 do not come in the way of the petitioners seeking quashing of the present criminal case. In response to the submission of learned counsel for the opposite party no. 2 of the present case having become infructuous due to subsequent framing of charge against the petitioners, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the case of Roy V.D. v. State of Kerala reported in (2000) 8 Supreme Court Cases 590 in which the Hon’ble Supreme Court has held that power under Section 482 of the Code can be exercised to quash proceeding where continuation of the same would amount to the abuse of the process of the Court and by making the accused undergo the ordeal of trial will amount to perpetuating an illegality resulting in great hardship to the accused. 8. Upon considering the rival contentions, this Court finds substance in the contentions of learned counsel for the petitioners. From the entire reading of the complaint case, it is apparent that the issue involved relates to a contractual dispute involving financial transactions in a business deal for which criminal proceedings are clearly an abuse of the process of the Court. The judgments relied upon by learned counsel for the petitioners are relevant and support his contentions in the facts and circumstances of the present case. The distinction made by learned counsel for the petitioners with regard to the decisions relied upon by learned counsel for the opposite party no. 2 are also appropriate and sustainable. 9. Accordingly, the entire criminal proceeding arising out of Lalganj P. S. Case No. 154 of 2009 as well as the order taking cognizance dated 28.06.2012 are quashed. As a corollary, the subsequent order framing charge dated 22.02.2013 also stands quashed. 10. The application stands allowed.