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2013 DIGILAW 286 (UTT)

J. P. Shukla v. State of Uttarakhand

2013-05-28

ALOK SINGH

body2013
Judgment Alok Singh, J. Present petition is filed against the summoning order dated 31.01.2006 passed by Judicial Magistrate, Dehradun in criminal complaint case no. 1484 of 2005 (Gyan Sagar Vs. J.P. Shukla and others) whereby petitioners were summoned, on the private complaint filed by respondent no. 2, under Section 420 IPC. 2. Brief facts of the present case, inter alia, are that respondent no. 2 preferred a complaint under Section 200 Cr.P.C. in the court of Judicial Magistrate stating therein that complainant/respondent no. 2 is an Executive Chairman of a NGO working in the name and style ‘Sie International’ and this NGO is registered under Societies Registration Act and is engaged in the development work relating to public health and sanitation planning project; petitioners, herein, working under the name and style ‘Knowledge Link Pvt. Limited’; petitioners could get one contract from Himachal Pradesh Government under the World Bank Project for the sanitation planning for backward and weaker sections of the society; petitioners approached the complainant in the month of April, 2004 and requested him to work as Technical Adviser; on 18.05.2004 one agreement/memorandum of understanding was executed between the petitioners and the complainant to the effect that complainant party would work as Technical Adviser for the development and sanitation work for the weaker and backward section of the people residing in Himachal Pradesh; Rs. 2,50,000/- was agreed to be paid by the petitioners to the complainant for job of Technical Adviser; out of Rs. 2,50,000/-, petitioner paid only Rs. 1,50,000/- and failed to pay balance amount of Rs. 1,00,000/-, therefore, they have committed criminal breach of trust, consequently, requested the Magistrate to summon the petitioners for the offences punishable under Section 406 IPC. 3. Learned Judicial Magistrate vide order dated 31.01.2006 observed that no offence punishable under Section 406 IPC is made out, however, prima facie, offence punishable under Section 420 IPC is made out and was pleased to summon the present petitioners under Section 420 IPC. Feeling aggrieved, petitioners have invoked inherent jurisdiction under Section 482 Cr.P.C. assailing the summoning order. 4. Mr. Pawan Mishra, Advocate for respondent no. 2, raised preliminary objection that this petition under Section 482 Cr.P.C. is not maintainable, in view of the fact that against the summoning order, criminal revision under Section 397 Cr.P.C., is maintainable before the Sessions Judge. Feeling aggrieved, petitioners have invoked inherent jurisdiction under Section 482 Cr.P.C. assailing the summoning order. 4. Mr. Pawan Mishra, Advocate for respondent no. 2, raised preliminary objection that this petition under Section 482 Cr.P.C. is not maintainable, in view of the fact that against the summoning order, criminal revision under Section 397 Cr.P.C., is maintainable before the Sessions Judge. In support of his contention, he has placed reliance on the judgment of Hon’ble Apex Court in the case of Om Kumar Dhankar Vs. State of Haryana reported in 2012 (11) SCC 252 . He further submits that offence punishable under Section 420 IPC is made out against the petitioners, in view of the fact that petitioners did not make balance payment with mala fide intention. 5. Mr. K.N. Joshi, learned counsel for the petitioners, submits that in the absence of any mens rea from the very beginning, no offence punishable under Section 420 IPC is made out against the petitioners. He further contends that as per the contents of the statement made by the complainant under Section 200 Cr.P.C., as mentioned in the impugned order, balance payment could not be released in favour of the complainant, in view of the fact that payment was not released from the World Bank, therefore, mens rea from the very inception shall not be inferred against the petitioners. 6. Mr. Joshi further contends that even if, alternative remedy is available to the petitioner, inherent jurisdiction under Section 482 Cr.P.C. is not barred in appropriate cases. This Court can exercise its jurisdiction despite availability of alternative remedy to the petitioner. 7. Hon’ble Apex Court in the case of O.K. Dhankar (supra) has held that criminal revision is maintainable against the summoning order passed by the trial court on a criminal complaint. In my considered opinion, jurisdiction under Article 226 of the Constitution of India or under Section 482 of the Cr.P.C. is not subject to any limitation. 8. 7. Hon’ble Apex Court in the case of O.K. Dhankar (supra) has held that criminal revision is maintainable against the summoning order passed by the trial court on a criminal complaint. In my considered opinion, jurisdiction under Article 226 of the Constitution of India or under Section 482 of the Cr.P.C. is not subject to any limitation. 8. Generally, this Court must restrict itself by not entertaining the petition under Article 226 of the Constitution of India or under Section 482 Cr.P.C. on account of availability of efficacious alternative remedy, however, if on the face of it, this Court finds that impugned order is shocking or is result of improper exercise of jurisdiction or is without jurisdiction or is manifestly erroneous, then this Court must entertain the petition under Article 226 of the Constitution of India or under Section 482 Cr.P.C., as the case may be. 9. Hon’ble Apex Court in the case of S.W. Palanitkar Vs. State of Bihar reported in 2002 (1) SCC 241 has held that mere failure to keep up promise, subsequently, cannot be presumed as an act leading to cheating. Hon’ble Apex Court in the case of Hridaya Ranjan Prasad Verma Vs. State of Bihar reported in 2000 (4) SCC 168 in paragraph 15 as held 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 to 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.” 10. 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.” 10. As per the dictum of Hon’ble Apex Court, as cited hereinbefore, from his mere failure to keep up promise subsequently, such a culpable intention right at the beginning, i.e., when he made the promise cannot be presumed. 11. In the present case, out of Rs. 2,50,000/-, petitioners paid Rs. 1,50,000/-, however, Rs. 1,00,000/- could not be paid to the complainant because petitioners could not get the payment from Himachal Pradesh Government under the World Bank Project. 12. It is true that under a contract payment cannot be refused on the ground that payment was not received from the Government, however, this will not amount to cheating as defined under Section 415 IPC. 13. In my considered opinion, present case seems to be a clear illustration of abuse of process of law. Complainant/respondent no. 2 could have initiated civil proceedings for recovery of balance amount by way of filing civil suit. Bypassing of civil suit, by way of filing criminal proceedings, in appropriate case, should not be permitted. This Court must come forward, in appropriate case, to quash such type of criminal proceedings lodged with ulterior motive just to settle a score and with mala fide intention to bypass civil suit. 14. Consequently, present petition is allowed. Impugned summoning order is set aside. Complainant shall be at liberty to approach the civil court for recovery of the balance amount.