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2018 DIGILAW 1817 (JHR)

Upendra Giri v. State of Jharkhand

2018-08-13

RONGON MUKHOPADHYAY

body2018
JUDGMENT : 1. Heard Mr. Vikash Kumar, learned counsel for the petitioner and Mr. Dinesh Kumar, learned counsel for the opposite party no. 2. 2. In this application, the petitioners have prayed for setting aside the order dated 12.06.2017 passed in Sindri P. S. Case No. 51 of 2015 corresponding to G. R. No. 4154 of 2015 by the learned Judicial Magistrate 1st class, Dhanbad whereby and whereunder the application for discharge preferred by the petitioner has been rejected. 3. It has been stated by the learned counsel for the petitioners that the dispute is purely civil in nature as the same relates to execution of work order. Learned counsel submits that there is considerable delay in institution of FIR as the last work which was executed by the informant at Jharsuguda was in the year 2008. He further submits that subsequently the matter has been compromised and an amount of Rs.65,000/- has been returned to the opposite party no. 2. It has been stated that if at all the informant was aggrieved with respect to non-payment of his amount, the proper forum would have been the civil court, but instead the opposite party no. 2 opted by filing a criminal complaint against the petitioners. 4. Mr. Dinesh Kumar, learned counsel for the opposite party no. 2 on the other hand has submitted that the act of the petitioner clearly depicts mens rea on the part of the petitioners as in the year 2003 in Jammu & Kashmir also, the petitioners had committed an act of deception by getting the work completed through the informant, but the petitioner did not make payment of the amount. Learned counsel submits that in the year 2008 once again the petitioner had induced the opposite party no. 2 to complete the work in Jharsuguda and once again the petitioners have adopted same modus operandi by not making payment due to him. The repeated act of the petitioner would suggest the criminal intent on the part of the petitioner and merely by stating that the dispute is civil in nature, the same would not hold good in view of the surrounding circumstances as could be depicted from the Fard Bayan as well as the investigation which has been carried out by the police. He has also submitted that the presence of the arbitration clause in the agreement entered into between the informant and the petitioners would not have invariably attracted a civil dispute as the FIR clearly indicates existence of a criminal case as against the petitioner. 5. On consideration of the arguments advanced by the learned counsel for the parties, the FIR has been visited from which it appears that the informant is a handicapped person who runs a construction firm in the name of Raj Construction Works which got closed in the year 2006. It has been alleged that sometime in July or August, both the petitioners contacted the informant for completion of the job in the State of Jammu & Kashmir. The informant was offered to open a joint account with the petitioner and all transaction was to be done in the joint account and 40% of the profit was to be handed over to the informant. Allegations has been levelled that the informant has invested a considerable amount, but neither the said amount was returned nor the joint account was opened in the name of the informant and petitioner and also 40% of profit as compromised was also not given to the informant. It has thereafter been alleged that in spite of repeated assurances made by the petitioner, the amount was not paid and sometimes in the year 2008 while he was doing construction work at Jharsuguda, the petitioners had approached him and on the pretext that the work order which was issued to the petitioners could not be completed since the labourers had fled away, the informant was requested at which believing on the version of the petitioner, an amount of Rs. 1,50,000/- was invested by the informant and the work was completed. Subsequently, however the petitioners did not make payment of any amount nor the profit as agreed and on repeated requests, the informant was threatened by the petitioners which led to institution of Sindri P. S. Case No. 51 of 2015. Investigation resulted in submission of charge-sheet and after cognizance was taken, application for discharge was preferred by the petitioner which was rejected vide order dated 08.11.2016. Investigation resulted in submission of charge-sheet and after cognizance was taken, application for discharge was preferred by the petitioner which was rejected vide order dated 08.11.2016. The petitioner preferred a revision application before this Court being Criminal Revision No. 48 of 2017 in which vide order dated 03.04.2017, the order dated 08.11.2016 was quashed and set aside and the matter was remanded back to the learned trial court to pass a fresh order in accordance with law. Consequent to the order dated 03.04.2017 passed in Criminal Revision No. 48 of 2017, the impugned order dated 12.06.2017 has been passed in which discussions have been made with respect to the evidence of the witnesses in course of investigation which have constrained the learned trial court to reject the discharge application preferred by the petitioners. 6. The allegations made in the FIR appears to be in 2 phases – the first in 2003 when it is alleged that at the inducement of the petitioners work was completed in the State of Jammu & Kashmir by the informant and subsequently in the year 2008 again on inducement by the petitioners, the work which was entrusted by the petitioners was completed by the informant. On both the occasions, it has been alleged that the amount which was promised as profit as well as his investment was never returned to the informant. The witnesses in course of investigation has stated about work having been done in Jharsuguda as well as in Jammu & Kashmir and in fact several witnesses have stated that they have received the due amount and nothing is left due from the petitioners. The question which is to be considered in the present application is whether on the face of it, there is a criminal intent on the part of the petitioners or not. It is to be noted herein that the last work order which was executed by the informant on the alleged inducement of the petitioners was in the year 2008 and the FIR was instituted in the year 2015, which is almost 7 years from the date of the last work order. It is to be noted herein that the last work order which was executed by the informant on the alleged inducement of the petitioners was in the year 2008 and the FIR was instituted in the year 2015, which is almost 7 years from the date of the last work order. The entire episode depicted in the Fard Bayan and the materials collected in course of investigation would suggest that the dispute was purely contractual in nature as the informant was required to do certain work which he claims to have completed, but the amount as agreed upon was never paid. Since it related to commercial transaction, the informant had option to approach the civil court for redressal of his grievance, but instead he had chosen to initiate a criminal case against the petitioners for non-payment of the dues for the alleged execution of the work by him. It also appears that no reasonable explanation has been given by the informant with respect to the delay of 7 years in instituting the FIR. Merely because while instituting the case, plea was taken that the informant has repeatedly approached the petitioners and assurance has been given by the petitioners to pay the dues and ultimately when the informant was threatened with dire consequences, he had instituted the criminal case, would not cut much ice in the delay in instituting the FIR. The plea which has been taken by the informant for not instituting the FIR within the reasonable proximity of time since the last occurrence is related to year 2008, but the FIR was instituted in 2015, which being an unexplainable delay does point to the fact that the perhaps the avenue for preferring the civil suit having been closed, the informant has chosen to opt for instituting a criminal case in order to realize the alleged amount which is due to the petitioners. 7. Be that as it may, on discussion of the entire matter, since the dispute seems to be a civil dispute which has not been properly considered by the learned trial court while rejecting the application for discharge preferred by the petitioners, I am therefore, inclined to allow this application. 8. 7. Be that as it may, on discussion of the entire matter, since the dispute seems to be a civil dispute which has not been properly considered by the learned trial court while rejecting the application for discharge preferred by the petitioners, I am therefore, inclined to allow this application. 8. This application stands allowed and the impugned order dated 12.06.2017 passed in Sindri P. S. Case No. 51 of 2015 corresponding to G. R. No. 4154 of 2015 by the learned Judicial Magistrate 1st class, Dhanbad is hereby quashed and set aside. 9. The petitioners are discharged from the criminal case.