Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 255 (PAT)

Upendra Kumar v. State of Bihar

2013-02-25

ASHWANI KUMAR SINGH

body2013
ORDER By invoking the writ jurisdiction of this court, the petitioner is seeking quashing of the FIR bearing Gandhi Maidan P.S.Case No.61 of 2010 dated 4.2.2010 instituted on the basis of letter no.XV-13/09-86 dated 2.2.2010 issued under the signature of Incharge Deputy Collector, Disaster Management Section, Patna. The FIR in question has been registered under sections 407 and 420 of the Indian Penal Code. 2. The facts stated in the FIR are as follows: The then District Magistrate, Patna (Late Dr. Gautam Goswami) had issued work order vide his letter no.307 dated 10.7.2004 to the petitioner for repairing the Motor Launch No.3 and 4 with estimated cost of Rs.1,99,350/- and 1,89,545/- respectively. For repairing works the petitioner was paid Rs.1,00,000/- as advance. 3. The petitioner presented a bill amounting to Rs.1,99,350/- on 20.8.2004 against the repairing works done by him in respect of Motor Launch No.3. The petitioner had also submitted a separate bill amounting to Rs.2,59,675/- on 8.11.2004 for the extra works carried out by him in repairing the Motor Launch No.3. 4. The Additional District Magistrate (for short “the A.D.M.”), Disaster Management, Patna vide his letter no.393 dated 27.8.2004 and letter no.523 dated 9.11.2004 directed the Motor Vehicle Inspector (for short MVI), Patna to inspect the repairing works carried out by the petitioner and submit a report regarding quality of works done by him. 5. As directed by the A.D.M., the MVI conducted inspection and submitted a report expressing satisfaction over repairing works carried out by the petitioner but the report submitted by him did not indicate details regarding extra works done by the petitioner. 6. On 25.7.2005, the driver of the Motor Launch No.3 reported that despite the repairing work water leakage was continuing from lower plate of the motor boat. 7. In this connection the A.D.M. vide his letter no.180 dated 29.4.2006 issued a show cause notice to the petitioner calling for an explanation from him about the leakage in carrying out the repairing work. 8. In administrative letter no.307 dated 10.7.2004, there was a guarantee clause as per which the petitioner was required to remove the deficiency, if any, noticed during the period of guarantee. Despite such guarantee clause stipulated in the works order, the petitioner failed to execute the repair work of the deficiency as noticed and reported by the driver of Motor Launch No.3. 9. Despite such guarantee clause stipulated in the works order, the petitioner failed to execute the repair work of the deficiency as noticed and reported by the driver of Motor Launch No.3. 9. The petitioner submitted a written reply on 15.5.2006 to the show cause notice dated 29.4.2006 stating therein that if after several years any deficiency arose, he cannot be held responsible for the same. Such explanation was not correct as the claim was made within the guarantee period. 10. The petitioner filed C.W.J.C. No.4986 of 2006 before this court for a direction to the respondents to make payment of Rs3,59,025/- which was dismissed by the High Court on 14.6.2006. 11. The petitioner preferred an appeal against the order dated 14.6.2006 passed in CWJC No.4986 of 2006 vide LPA No.528 of 2006 but with an observation that in case the petitioner seeks relief by filing a suit before civil court of competent jurisdiction or by any other legal means the dismissal of the writ petition and/or the appeal shall not stand in his way. 12. The petitioner, thereafter, filed L.A. No.23 of 2007 before the Permanent Lok Adalat, Patna for payment of his due amount. Since no compromise could be arrived at between the petitioner and the District Magistrate concerned, the proceeding in the aforesaid L.A. No.23 of 2007 was ultimately dropped on 14.11.2008. 13. In the light of letter no.192 dated 20.7.2007 issued under the signature of the District Magistrate, Patna and addressed to the Presiding Officer, Permanent Lok Adalat, Patna which relates to payment of due amount amounting to Rs.2,59,350/-, the petitioner filed a fresh writ petition vide CWJC No.12238 of 2009 before this court. 14. The District Magistrate, Patna had issued letter no.192 dated 20.7.2007 admitting that Rs.2,59,350/- was due to be paid to the petitioner but while issuing such letter he had not followed the procedures prescribed in law. It has been clarified that the District Magistrate had issued the said letter at his own level without any enquiry, verification and sanction order. 15. The petitioner had admitted in writing in his show cause dated 10.12.2008 that he had carried out the additional repairing work of Motor Launch No.3 pursuant to oral order issued to him. Hence, apparently, the additional work was carried out without any legal administrative sanction/work order. 16. 15. The petitioner had admitted in writing in his show cause dated 10.12.2008 that he had carried out the additional repairing work of Motor Launch No.3 pursuant to oral order issued to him. Hence, apparently, the additional work was carried out without any legal administrative sanction/work order. 16. The District Magistrate, Patna vide his order as contained in memo no.1094 dated 2.11.2009 constituted a team of officers in order to examine the claim of the petitioner. The committee in its meeting dated 6.11.2011 after taking into consideration the entire facts, took a decision that the petitioner was not entitled to receive any payment apart from Rs.1,00,000/- which was already paid to him as advance for repairing of the Motor Launch in question. 17. On the basis of the aforesaid facts, the present FIR has been instituted alleging therein the following:- (i) the quality of work executed by the petitioner was not as per standard and, as such, damage in lower plate of Motor Launch No.3 was noticed during guarantee period; (ii) The petitioner breached the terms of contract by not curing the defect pointed out to him during guarantee period; (iii) The petitioner is making claim for payment of Rs.2,59,350/- by filing petitions at different levels by distorting the facts as a result of which the time and money of the government is being wasted unnecessarily. 18. It is relevant to notice here that on the top of the written report submitted by the informant to the Officer-in-charge of Gandhi Maidan Police Station, Patna, it has been stated that the FIR is being filed against the petitioner pursuant to the order dated 24.12.2009 passed in CWJC No.12238 of 2009 by this court. 19. Learned counsel appearing for the petitioner submitted that the allegations made in the FIR do not constitute a cognizable offence and, as such, the police has no authority to investigate the case. It has further been submitted that the petitioner had challenged the order dated 24.12.2009 passed in CWJC No. 12238 of 2009 by filing an intra court appeal vide LPA No. 331 of 2010. The said LPA was disposed of by a Division Bench of this court in the following terms:– “As we have condoned the delay in preferring the appeal, we are inclined to take up the appeal for admission. On consent of the learned counsel for the parties it is finally heard. The said LPA was disposed of by a Division Bench of this court in the following terms:– “As we have condoned the delay in preferring the appeal, we are inclined to take up the appeal for admission. On consent of the learned counsel for the parties it is finally heard. In this appeal, the sustainability of the order dated 24.12.2009 passed by the learned Single Judge in C.W.J.C. No.12238 of 2009 is called in question. The learned Single Judge has passed the following order:– “Certain materials have emerged from the record by which court prima facie gets a strong feeling that things have been tampered and the documents of forged kind have been utilized for making out a case in the present court. In view of the above, this Court is not inclined to adjudicate the claim of the petitioner at this stage. Let the State take steps for institution of a criminal case first. The outcome of the criminal investigation will decide further course of action in the matter. The writ petition is dismissed.” Having heard learned counsel for the parties, we agree with the learned Single Judge that the writ petition deserved to be dismissed but there was no justification for directing institution of a criminal case for the simple reason the documents that have been brought on record pertain to some proceeding or other, and hence, it cannot be said that there was any kind of forgery. They may not be able to sustain the submission put forth by the petitioner but the concept of forgery does not get attracted. We may hasten to clarify, we have concurred with the order of dismissal as the appellant had approached the Court on earlier occasion putting forth a money claim which was dismissed, and, in L.P.A. No.528 of 2006 vide order dated 12.9.2006, this Court had permitted the petitioner to institute a civil suit or seek appropriate legal remedy as advised in law then the writ petition could not have been filed for the second time.” The appeal is disposed of accordingly.” 20. Learned counsel relying on the order passed in L.P.A. No.331 of 2010 submitted that the order/direction dated 24.12.2009 given by the Single Judge of this court for institution of a criminal case against the petitioner was set aside by a Division Bench of this court. Learned counsel relying on the order passed in L.P.A. No.331 of 2010 submitted that the order/direction dated 24.12.2009 given by the Single Judge of this court for institution of a criminal case against the petitioner was set aside by a Division Bench of this court. The Division Bench of this court found no justification for directing institution of a criminal case against the petitioner. The Division Bench was also of the view that element of forgery was not attracted in the case as the documents that had been brought in the writ petition pertained to some proceeding or other. 21. Learned counsel further submitted that no one with a legitimate cause or grievance should be prevented from seeking remedies as available in law. According to him, the present case has been institute with a view to coerce the petitioner so that he may not pursue his claim for payment of the due amount against the State before the court. 22. On the other hand, learned counsel for the State submitted that the FIR, in question, has been registered on 4.2.2010 pursuant to the direction given by this court vide order dated 24.12.2009 passed in C.W.J.C. No.12238 of 2009. The Division Bench, however, disposed of the appeal nullifying the order passed by the Single Judge on 19.2.2010. By that time, the FIR had already been instituted and investigation had commenced. 23. He has further submitted that even otherwise the allegations made in the FIR do constitute a cognizable offence. According to him, the works done by the petitioner in repairing Motor Launch No.3 were of substandard quality and he failed to rectify the deficiency when it was pointed out to him during the guarantee period. 24. He further submitted that filing of several cases by the petitioner has caused huge loss to the State exchequer. 25. I have given my careful consideration to the submissions made by the learned counsels. The FIR under challenge has been registered under sections 407 and 420 of the Indian Penal Code. Section 407 of the Indian Penal Code reads as under:– “407. Criminal breach of trust by carrier, etc.:–Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 26. Criminal breach of trust by carrier, etc.:–Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 26. The essential ingredients of the offence under section 407 are as follows:– “(i)Accused was a carrier or wharfinger or warehouse- keeper; (ii) In such capacity accused was entrusted with certain property; (iii) Accused committed breach of trust in respect of the property so entrusted to him.” 27. The criminal breach of trust is defined under section 405 of the Indian Penal Code, which reads as under:– “405. Criminal breach of trust.–whoever, being in any manner entrusted with property, or with any domain 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” 28. The ingredients of an offence of criminal breach of trust are:– “(1) Entrusting any person with property or with any dominion over property. (2) That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust.” 29. The gist of the offence of criminal breach of trust as defined under section 405 of the Indian Penal Code is entrustment of property and dishonest misappropriation thereof. Apparently, in the present case, there is no allegation that the petitioner was entrusted with any property and he dishonestly misappropriated the entrusted property. Thus, the foundational facts necessary for constituting an offence under section 407 of the Indian Penal Code are missing in the present case. 30. Section 420 of the Indian Penal Code reads as under:– “420. Apparently, in the present case, there is no allegation that the petitioner was entrusted with any property and he dishonestly misappropriated the entrusted property. Thus, the foundational facts necessary for constituting an offence under section 407 of the Indian Penal Code are missing in the present case. 30. Section 420 of the Indian Penal Code reads as under:– “420. Cheating and dishonestly inducing delivery of property.–whoever cheats and thereby dishonestly induces the person deceived to delivery any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 31. Cheating has been defined in section 415 of the Indian Penal Code and it says:– “415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’”. 32. The essential ingredients of the offence of cheating are:– (i) Deception of a person either by making a false or misleading representation or by other action or omission; (ii) Fraudulent or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. 33. The guilty intention right from the beginning of the contract is the essential ingredient of cheating. In the present case there is no allegation that the petitioner had any intention to cheat. 34. In Hirdaya Ranjan Prasad Verma Others Vs. State of Bihar and another since reported in (2000) 4 SCC 168 the Apex Court has held in paragraph 15 as under:– “15. In the present case there is no allegation that the petitioner had any intention to cheat. 34. In Hirdaya Ranjan Prasad Verma Others Vs. State of Bihar and another since reported in (2000) 4 SCC 168 the Apex Court has held in paragraph 15 as under:– “15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 35. The first information report contains the work order issued to the petitioner for carrying out repairing of Motor Launch No.3 and 4. The work order stipulates certain clauses. The allegations have been made against the petitioner in relation to the quality of work in execution of contract. No case of criminal misconduct has been made out against the petitioner. It is not the case that the petitioner did not carry out the repairing works at all rather the allegation is that quality of work was not up to the standard as a result of which leakage occurred in lower plate of the boat during guarantee period and the petitioner failed to repair the leakage despite notice being issued to him during guarantee period. 36. Further allegation in the FIR is that since the petitioner carried out the work of repairing on verbal orders passed by the authority, he was not entitled for any additional payment of the due amount. 36. Further allegation in the FIR is that since the petitioner carried out the work of repairing on verbal orders passed by the authority, he was not entitled for any additional payment of the due amount. Such averment in the FIR may be a ground for denial of payment of the amount being demanded by the petitioner but the same cannot be a ground for launching a criminal prosecution. 37. The allegation of loss to the State exchequer due to filing of cases by the petitioner cannot be a ground for launching criminal prosecution. Every citizen has a right to approach the court for redressal of his grievance/grievances. The Supreme Court has time and again drawn attention to the growing tendency of the complainants to give the cloak of the criminal offence to matters which are essentially a dispute 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. It is the bounden duty of the court to ensure that the proceedings before the court are not used for settling scores or to pressurize the party to settle the dispute. 38. It is not the case of the prosecution that the petitioner put forward his claim on the basis of any forged or fabricated documents. It is also not the case of the prosecution that the petitioner failed to execute any work after receipt of advance amount. The grievance in respect of deficiency in carrying out the repairing works was raised after lapse of more than one year and six months. The issue as to whether there was any administrative sanction or not for carrying out the additional work was not the concern of the petitioner. The fact remains that the petitioner executed some additional repairing work for which he was insisting for payment. Whether he was entitled for such payment or not is a question to be determined in a civil proceeding but for that no criminal prosecution can be launched. 39. In Madhavrao Jiwajirao Scindia and others Vs. The fact remains that the petitioner executed some additional repairing work for which he was insisting for payment. Whether he was entitled for such payment or not is a question to be determined in a civil proceeding but for that no criminal prosecution can be launched. 39. In Madhavrao Jiwajirao Scindia and others Vs. Sambhajirao Chandrojirao Angre and others since reported in (1998) 1 SCC 692 the Apex Court in paragraph 7 has observed as under:– “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 40. Thus, having regard to the law laid down by the Apex Court and taking into consideration the facts and circumstances of the present case, in my view, allowing the prosecution to continue in the present case would be an abuse of process of the court. Since the allegations made against the petitioner do not constitute any cognizable offence, the FIR of Gandhi Maidan P.S. Case No.61 of 2010 dated 4.2.2010 instituted under sections 407 and 420 of the Indian Penal Code and the entire criminal proceedings initiated on the basis of the said FIR are quashed. The writ petition is allowed.