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2014 DIGILAW 995 (JHR)

Bijan Kumar Dutta v. State of Jharkhand

2014-09-19

D.N.UPADHYAY

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ORDER W.P.(Cr.) No. 251/2008 filed on behalf of Bijan kumar Dutta, Project Coordinator (Technical & Logistic), Ramswarup Lohh Udyog Ltd. and W.P. (Cr.) No. 208/2008 filed on behalf of Ashish Jhunjhunwala accused no.1, Chairman cum Managing Director, Ramswarup Lohh Udyog Ltd. have been filed for quashing the F.I.R. and entire criminal proceeding arising out of Balidih P.S. Case No. 95/2006, corresponding to G.R. No. 1416/06. 2. A complaint was filed by respondent no.2 vide C.P. Case No. 605/2006 in the court of the Chief Judicial Magistrate, Bokaro. The learned C.J.M. sent the complaint under Section 156 (3) of the Cr.P.C. after that Bokaro Chas Balidih P.S. Case No. 95/2006 dated 18.12.2006 under Sections 403/406/420/468/120B/34 of the Indian Penal Code against the writ petitioners was registered. 3. The facts in brief is that there was a contract between the complainant’s company and the company of the accused. The complaint’s company was under obligation to supply articles as per the purchase order given by the accused company on certain terms and conditions. According to the contract, the company of the accused shall pay 25% of the purchase amount in advance and against that advance the complainant’s company shall furnish bank guarantee. The Bank Guarantee shall remain in force till transaction against that purchase order get over. It is alleged that against an order, advance of 25% of purchase amount was paid to the complainant’s company and for which Bank Guarantee was given in favour of accused company but in the meantime the accused company encashed the Bank Guarantee without giving information to the complainant’s company. It is alleged that the company of the complainant after receiving purchase order had made arrangements for supply of materials as per purchase order but in the meantime the Bank Guarantee was encashed and those articles were left with the complainant’s company causing loss to him. Since the accused persons committed breach of trust and encashed the Bank Guarantee without seeking consent from the complaint’s company, they felt themselves cheated and filed this complaint. 4. It is contended by the Counsel appearing for the petitioners that both the parties were discharging their obligation under a contract and at the initial stage both of them were complying the terms and conditions of the contract and transaction between them was going on. 5. 4. It is contended by the Counsel appearing for the petitioners that both the parties were discharging their obligation under a contract and at the initial stage both of them were complying the terms and conditions of the contract and transaction between them was going on. 5. It is submitted that in a case of cheating, deceptive intention must remain at the inception of the contract between the parties but that is lacking in the present case because both the companies are having good reputation and they had dealt with each other. So far question of breach of trust is concerned, no ingredients of Sections 403 or 406 I.P.C. are attracted because the accused persons had not misappropriated any property entrusted by the complainant’s company rather admitted situation is that advance to the extent of 25% of the purchase amount was paid by the accused persons to the complainant against which Bank Guarantee was furnished in favour of accused company and that Bank Guarantee was revoked and the amount was encashed. Meaning thereby the accused persons had realized the amount which they had paid to the complainant’s company and therefore no question of misappropriation of the property or criminal breach of trust arise. 6. It is further submitted, if the complainant’s company was aggrieved, they could have gone for civil remedy. Since the prosecution of the accused persons in this criminal case is only with an intention to harass them, it is liable to be quashed. 7. Learned Counsel appearing for the respondent no.2 has raised objection and submitted that offence of criminal breach of trust is attracted on the basis of contention made in the complaint. In utter violation of the terms of contract the accused persons had encashed the Bank Guarantee without cancelling the purchase order. The mater is under investigation and therefore, the F.I.R. is not required to be quashed at this stage. 8. I have gone through the detailed complaint petition and the materials placed before me. It is not in dispute that a business contract between the parties was prevailing from before institution of this case and both of them had complied with the terms and conditions of the contract for certain period and transactions had taken place between them. 8. I have gone through the detailed complaint petition and the materials placed before me. It is not in dispute that a business contract between the parties was prevailing from before institution of this case and both of them had complied with the terms and conditions of the contract for certain period and transactions had taken place between them. So far allegation levelled against petitioners in the complaint is concerned that is only to the extent that advance amount which was paid by the accused persons to the complainant and against which Bank Guarantee furnished in favour of the accused company was invoked and encashed that indicates that the money which was paid by the accused persons was taken back by them and therefore it does not appear that they misappropriated any amount or committed criminal breach of trust. The ingredients of Sections 420 & 468 of the I.P.C. are lacking and averments made in the complaint do not prima facie constitute offence punishable under Sections 420 and 468 of the I.P.C. 9. It is evident that the dispute arose due to non-compliance of certain terms and conditions of the contract and for that civil remedy is always available and the complainant should have gone for that. I do not find that the averment made in the complaint prima facie attract ingredients of any of the offence for which the case has been registered and therefore F.I.R. arising out of Balidih P.S. Case No. 95/2006, corresponding to G.R.No.1416/06 stands set aside. Since the matter appears to be a dispute of civil nature, the complainant shall be at liberty to take proper recourse to by filing civil suit in a court of competent jurisdiction. 10. Accordingly, both the petitions stand allowed.