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Jharkhand High Court · body

2014 DIGILAW 207 (JHR)

P. Uday Kumar v. State of Jharkhand

2014-02-05

R.R.PRASAD

body2014
ORDER By the Court.- Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.2. 2. Initially this case was filed for quashing of the FIR of Chandrapura P.S. Case No. 77 of 2008 instituted under Sections 406 and 420 of the Indian Penal Code. Subsequently, on submission of the charge sheet, cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code was taken, vide order dated 28.10.2009. That order was also challenged. 3. The case of the complainant is that the complainant, a company, namely, Power Mach Project Private Limited entered into a contract with BHEL for executing certain work. On work being awarded, the complainant entered into an agreement with M/s. Sagar Enterprises to which the petitioner is the proprietor for supplying labourers for executing the work. In course of execution of work, whenever money was required it was given when promises was made that whenever money would be paid of other works, it would be returned. Accordingly, it was given by the complainant under receipt time to time and thereby a sum of Rs. 14,14,527/- was given but the petitioner thereafter stopped supplying labourer and left Chandrapura where the work was being executed. 4. Further it has been alleged that earlier also the petitioner had taken a sum of Rs. 11,45,714/- which he never returned. In spite of repeated request being made for returning the money, when it was not returned a complaint was lodged as Complaint Case No. 71 of 2008. The said complaint was sent before the concerned police station under Section 156(3) for its institution and investigation. Accordingly, Chandrapura P.S. Case No. 77 of 2008 was registered under Sections 406 and 420 of the Indian Penal Code. 5. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that accepting the entire allegation to be true that this petitioner had taken money for executing the work and the work was not executed, the case will never fall within the mischief of the provision of Section 420 or Section 406 of the Indian Penal Code and therefore, the Court has committed illegality in taking cognizance of the offences. 6. 6. It was further submitted that similar kind of dispute had arisen earlier wherein it had been alleged by the complainant that the petitioner had taken money as loan for executing the work but that was not executed. For that, a case had been lodged against the petitioner. In that case, when cognizance was taken, a petition for discharge was filed. The Court though discharged the petitioner from the offence under Section 420 but did not discharge the petitioner from the offence under Section 406 of the Indian Penal Code and therefore, the petitioner filed a revision application before this Court, vide Cr. Rev. No. 634 of 2008. That revision application was dismissed and against that order, when the petitioner moved before the Hon’ble Supreme Court in Cr. App. No. 2121 of 2010, the impugned order was set aside and thereby the petitioner was discharged from the offence under Section 406 of the Indian Penal Code. 7. Similar is the situation here and therefore, the order taking cognizance as well as entire criminal proceeding is fit to be quashed. 8. As against this, Mr. Atanu Banerjee, learned counsel appearing for the complainant submits that the allegation what has been made in the instant complaint petition/FIR is quite different from the allegation which had earlier been made which gave rise to Cr. App. No. 2121 of 2010 and therefore, it cannot be a ground for quashing of the order taking cognizance. 9. In this regard. it was further submitted that there it was the case of the complainant that money had been advanced to the petitioner as loan which was not returned and therefore; it was never considered to be a case of criminal breach of trust but here the case of the complainant is that the petitioner on being awarded work by the complainant took money to execute the work on the premise that he will be getting money from Orissa where he has also been awarded work but after taking money, the petitioner not only left the work but fled from the place where the work was to be executed and this fact makes the case entirely different and therefore, the order taking cognizance never warrants to be quashed also in view of the fact that the charges have already been framed and two witnesses have also been examined on behalf of the prosecution. 10. 10. Having heard learned counsel appearing for the parties, I do find that in earlier case the money had been given to the petitioner by the complainant as loan which when was not returned, a case was lodged under Sections 406 and 420 of the Indian Penal Code. After cognizance was taken, a petition for discharge was filed, the Court discharged the petitioner from the offence under Section 420 but refused to discharge the petitioner from the offence under Section 406 of the Indian Penal Code. That was challenged before this Court but the petitioner did not succeed and then approached to the Hon'ble Supreme Court where it was found that when the petitioner had taken money as loan, that cannot be treated to be entrustment and thereby the Hon'ble Supreme Court discharged the petitioner from the offence under Section 406 of the Indian Penal Code. 11. Here the fact appears to be a bit different as it is the case of the complainant that the petitioner did take money on being awarded work for executing the work on the premise that the money would be returned as soon as the petitioner will be paid money for the work done at Orissa but the petitioner after taking money not only left the work but also left the place. Therefore, for finding out the culpability the Court needs to go to ascertain as to whether the petitioner had practiced deception or not at the time of taking money. Since the trial has already commenced where two witnesses have already been examined, I am not inclined to interfere with the order taking cognizance rather matter is left for the trial Court to decide the issue. 12. Accordingly, this application stands disposed of. Application disposed of.