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2017 DIGILAW 189 (HP)

Satish Kumar v. State of Himachal Pradesh

2017-03-16

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Petitioners have assailed issuance of process against them by Judicial Magistrate, Khagaria, Bihar in case No. 86C/10 in complaint filed by respondent No. 4 against them under Section 406 IPC. 2. On service, respondents-State has filed reply whereas complainant-respondent No. 4 has not preferred to be represented in this petition much less to file reply. Reply of respondents-State is formal reply, wherein except admitting filing of complaint by complainant-respondent No. 4, no response to plea of petitioners has been preferred either stating it needed no reply or for want of knowledge. 3. Petitioners have been served with notice (Annexure P-3) issued by Judicial Magistrate for appearing in the said Court. Copy of complaint, served along with notice is also part of Annexure P-3. 4. As per complaint, complainant-respondent No. 4 and his witnesses had worked for petitioners earlier also and therefore, believing them, complainant-respondent No. 4 had provided five masons and six labourers who worked for petitioners w.e.f. 24.4.2009 to 24.8.2009 and agreed rate of daily wage for mason and labourer was Rs.300/- and Rs.150/- respectively and complainant and his witnesses worked on site of petitioners daily since 9 A.M. to 5:50 P.M. According to complaint, a balance payment of Rs.2,25,000/-, to be paid by petitioner against wages to complainant-respondent No. 4 and witnesses labourer, was being avoided by petitioners on one pretext or other, whereupon a notice dated 7.1.2010 was also served upon petitioners asking them to make payment within a week, but petitioners did not pay the said balance amount and on 22.1.2010, petitioners again visited house of complainant-respondent No. 4 and in presence of witnesses, at about 12 Noon, they assured for payment of balance amount with request to return on work of petitioners, but complainant-respondent No. 4 and his witnesses refused to work for petitioners without payment of balance amount, whereupon petitioners left the place abusing complainant-respondent No. 4 and others and also threatened for not to make payment of balance amount. With averment of belief that petitioners are intentionally not making payment of balance amount, prayer for taking cognizance of illegal act of petitioners has been made in the complaint. 5. Petitioners have also placed on record copy of agreement dated 24.9.2009, executed between petitioner No. 1 and complainant-respondent No. 4 at Kalpa in presence of witnesses which is also notarized on the same date. 5. Petitioners have also placed on record copy of agreement dated 24.9.2009, executed between petitioner No. 1 and complainant-respondent No. 4 at Kalpa in presence of witnesses which is also notarized on the same date. Complainant-respondent No. 4 has also made reference of agreement in his complaint. As per this agreement, complainant-respondent No. 4 had agreed to provide mason and labourer to petitioner No. 1 till 15th November, 2009 against payment of wages to be made every month but balance amount was to be paid by 10th November, 2009 and in case of leaving work prior to settled time, right to receive balance amount was to be forfeited. 6. Process against petitioners has been issued by learned Judicial Magistrate, Khagaria, Bihar, which, undisputedly, is beyond the territory of Himachal Pradesh, so also beyond the territorial jurisdiction of this Court. Maintainability of this petition in this Court is primary issue to be decided first of all. Thereafter, only in case petition is maintainable, merits of plea to quash notice issued and complaint and proceedings pending before learned Judicial Magistrate Khagaria, Bihar are to be adjudicated on the basis of material on record. 7. Learned counsel for the petitioners has relied upon ratio of law laid down by Hon’ble Apex Court in case titled Navinchandra N. Majithia Vs. State of Maharashtra and others (2000) 7 SCC 640 , in which it was held as under:- “36. It was the said decision of the Constitution Bench which necessitated Parliament to bring the Fifteenth Amendment to the Constitution by which clause (1-A) was added to Article 226. That clause was subsequently renumbered as clause (2) by the Constitution Forty-Second Amendment. Now clause (2) of Article 226 reads thus: “226. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” 37. The object of the amendment by inserting clause (2) in the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Sabba Rao AIR 1953 SC 210 and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “the cause of action, wholly or in part, arises” and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High court. The amendment is thus aimed at widening the width of the area of reaching the writs issued by different High Courts. 38. “Cause of action” is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words “cause of action, wholly or in part, arises” seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the “cause of action wholly or in part arises”. Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean “the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.” 8. In present case, agreement relied upon by both parties i.e. petitioners and complainant-respondent No. 4 was executed at Kalpa District Kinnaur in Himachal Pradesh. The masons along with labour were also provided by complainant-respondent No. 4 at Kalpa and the payment of some wages was also made in Kalpa, and complainant-respondent No. 4 has filed complaint for not making payment of balance amount of wages for work done in Kalpa in pursuance of agreement executed at Kalpa. Therefore, it can be safely inferred that major part of cause of action has arisen in territorial jurisdiction of this Court. Therefore, it can be safely inferred that major part of cause of action has arisen in territorial jurisdiction of this Court. In view of bare provisions of Article 226(2) of the Constitution of India and also as explained in ratio of law laid down in judgment of Navinchandra N. Majithia (supra), I am of the view that present petition is maintainable in this Court. 9. Petitioners have challenged issuance of notice in Criminal Complaint filed for non-payment of wages in furtherance to the agreement (Annexure P-1) executed between petitioner and complainant-respondent No. 4. Learned counsel for the petitioners submits that there is no act on the part of the petitioners inviting their criminal culpability, so as to summon them in a Criminal Complaint filed for non-abiding, if any, the terms and conditions of the agreement. It is further contended that if averments of the complaint are considered to be gospel truth even then as evident from contents of the complaint itself, it is a civil dispute as the masons and labourers provided by respondent No. 4 had worked w.e.f. 24.4.2009 to 24.8.2009 whereas as per agreement, placed on record, they had to work till 15th November, 2009 and balance payment was to be made on 10th November, 2009 with rider that in case of abandoning work prior to fixed date, right to receive balance payment had to be forfeited. It appears from material on record that work was not completed and only for that reason, as mentioned in complaint, petitioners had requested complainant-respondent No. 4 and others to come back on work and to have the balance wages. In my opinion dispute between parties is civil in nature and whether complainant-respondent No. 4 is entitled to recover balance payment or petitioners have right to withhold the alleged balance payment is to be adjudicated by Civil Court only. I also draw support from pronouncement of Hon’ble Apex Court in Anil Mahajan Vs. Bhor Industries Ltd. and another (2005) 10 SCC 228 , relied upon by petitioners, wherein it has been held as under:- “6. The order of the Magistrate was challenged before the Court of Session. The learned Additional Sessions Judge, Pune, by order dated 19-10-2001 has set aside the order of the Magistrate issuing process. Bhor Industries Ltd. and another (2005) 10 SCC 228 , relied upon by petitioners, wherein it has been held as under:- “6. The order of the Magistrate was challenged before the Court of Session. The learned Additional Sessions Judge, Pune, by order dated 19-10-2001 has set aside the order of the Magistrate issuing process. It has been stated by the learned Additional Sessions Judge in the order that: “In this case there is no allegation that the accused made unlawful representation. Even, according to the complaint, they entered into memorandum of understanding. Grievance seems to be that the accused failed to discharge obligations under the MOU. In the complaint, there was no allegation that there was fraud or dishonest inducement on the part of the applicant and thereby the opponent parted with the property.” Reliance has been placed, in that order, on various decisions of this Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. 7. The order of the learned Additional Sessions Judge has been set aside by the High Court by the impugned judgment. The High Court, except noticing that the ratio of the judgment of this Court cannot be applied to all cases in a uniform way, has neither discussed the said judgment nor stated as to how it was wrongly applied by the learned Additional Sessions Judge. There is hardly any discussion in the impugned judgment for reversing a well-considered judgment of the learned Additional Sessions Judge. 8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. There is hardly any discussion in the impugned judgment for reversing a well-considered judgment of the learned Additional Sessions Judge. 8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay…….” 10. The ratio of law laid down in aforesaid judgment is fully applicable in the given facts and circumstances of present case and as the dispute between petitioners and respondent No. 4 is purely civil in nature, attracting no criminal culpability on the part of petitioners. Even if, the contents of complaint filed by respondent No. 4 are relied as it is, then also, there is no averment therein so as to infer mensrea on part of petitioners and to draw inference that even prima facie petitioners are liable for facing criminal trial in complaint filed by complainant-respondent No. 4. Therefore, learned Magistrate has erred in issuing the process against petitioners in criminal complaint filed by respondent No. 4. Therefore, notice (Annexure P-3) along with complaint is quashed and petition is allowed accordingly. Though it is obvious, but to avoid any misconstruction, it is clarified that consequently proceedings pending before Judicial Magistrate, Khagaria, Bihar filed by complainant-respondent No. 4 also stands quashed. The petition stands disposed of, so also the pending applications, if any.