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2020 DIGILAW 255 (JHR)

S. Mohan v. State of Jharkhand

2020-02-10

ANANDA SEN

body2020
JUDGMENT : Heard learned counsel for the petitioner, learned counsel for O.P. No. 2 and the learned A.P.P. for the State. 2. In this application, the petitioners, who are the Officers of Ms. Larsen & Tubro Limited (L & T Limited), have challenged the F.I.R., so far as it relates to them. 3. Petitioner no. 1 is the Administrative Head, petitioner no. 2 is the Ex-Account Officer, petitioner no. 3 is the Project Manager, petitioner no. 4 is the Civil Engineer and petitioner no. 5 is the Project Accountant of M/s. L & T Limited. 4. The FIR was lodged as B.S. City P.S. Case No. 405 of 2013 and was registered for the offence punishable under Sections 406, 420/34 of the Indian Penal Code. The allegation in the FIR is that for some construction work of Bokaro Steel Plant a contract was awarded to M/s L & T Limited. The said Company appointed sub-contractors namely, Costal Infra, Bokaro and Chitra Builders Pvt. Limited for the said work. It is alleged that Costal Infra, Bokaro and Chitra Builders further placed order with O.P. No. 2 for supplying stone chips and sand. In the FIR, it has further been alleged that O.P. No. 2 supplied the stone cheap and sand but M/s. L & T Limited has not made their due payments and thus an amount of Rs. 45,57,032/-remained due which is alleged to have been misappropriated by the Company. On the aforesaid background, FIR has been lodged. 5. Learned counsel appearing for the petitioners submits that from perusal of the entire FIR, no criminal offence is made out. A money claim has been given the colour of a criminal offence, which is absolutely but an abuse of the process of law. He submits that in the entire FIR there was nothing to suggest that there was any intention to cheat O.P. No. 2. He submits that M/s. L & T Limited has no privity of contract with O.P. No.2, rather it is with Costal Infra, Bokaro and Chitra Builders, who had issued supply order of stone chips and sand to O.P. No. 2. 6. He submits that M/s. L & T Limited has no privity of contract with O.P. No.2, rather it is with Costal Infra, Bokaro and Chitra Builders, who had issued supply order of stone chips and sand to O.P. No. 2. 6. Learned counsel appearing for O.P. No. 2 and the State submits that the sand and stone cheap was supplied and the principal contractor was M/s L & T Limited and, thus, it was the prime responsibility of M/s L & T Limited to see that the amount be paid to the contractor but the Company has not paid the amount rather has misappropriated the same. 7. After going through the FIR, I find that the FIR was registered for the offence punishable under Section 406, 420/34 of the Indian Penal Code and it is admitted case of the parties that Bokaro Steel Plant has awarded the contract to M/s L & T Limited and M/s. L & T Limited appointed sub-contractors namely, Costal Infra, Bokaro and Chitra Builders Pvt. Ltd. The supply order of sand and stone chip to O.P. No. 2 was issued by Costal Infra, Bokaro and Chitra Builders and admittedly not by M/s. L & T Limited. Thus, the privity of contract was between Costal Infra Bokaro and the informant-O.P. No. 2 and not with M/s. L & T Limited. 8. Section 420 of the Indian Penal Code provides punishment of cheating and dishonestly inducing delivery of property. Section provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 9. Further, cheating is described under Section 415 of the Indian Penal Code. 9. Further, cheating is described under Section 415 of the Indian Penal Code. Section states that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceive, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 10. Further, Section 406 of the Indian Penal Code is the punishment for criminal breach of trust. Criminal breach of trust has been defined in Section 405 IPC. From the aforesaid provision of law to bring home the charge under Section 420 IPC, I find that there should be an inducement and deceitful means to deliver a property. 11. The Hon’ble Supreme Court in the case of “S.W.Palanitkar & Others-versus-State of Bihar & Another, reported in (2002) 1 SCC 241 ” in Para-10 has held as follows:- “10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” 12. Thus, from the facts of this case and applying the law, I find that the ingredients are not made out to attract offence under Section 420 IPC. So far as Section 406 IPC is concerned, I find that M/s. L & T Limited was not entrusted with any property by the informant. If anything was entrusted it was entrusted to Costal Infra Bokaro and Chitra Builders Pvt. Ltd. Thus, in absence of any entrustment as defined under Section 405 IPC, Section 406 IPC is also not attracted in this case, so far as petitioners are concerned. 13. If anything was entrusted it was entrusted to Costal Infra Bokaro and Chitra Builders Pvt. Ltd. Thus, in absence of any entrustment as defined under Section 405 IPC, Section 406 IPC is also not attracted in this case, so far as petitioners are concerned. 13. I find from the FIR that the business transaction has been given a colour of a criminal case. Mere non-payment of business dues for any reason cannot be a criminal offence. Further, I find that the Company, i.e. M/s. L & T Limited has not been made party in this case, rather its Officials have been made party without assigning any overt act against them. Thus, I find that lodging of this FIR against these petitioners is nothing but is an abuse of the process of law. Thus, FIR being B.S.City P.S. Case No,. 405 of 2013, corresponding to G.R. No. 1627 of 2013, so far as these petitioners are concerned, is hereby quashed and set aside. 14. This criminal miscellaneous petition stands allowed.