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2021 DIGILAW 405 (GAU)

Prosenjit Dutta v. State of Mizoram

2021-05-25

MICHAEL ZOTHANKHUMA

body2021
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr. F. Lalengliana, the learned counsel for the respondent No.5 and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the respondent Nos. 1 to 4. 2. This criminal petition has been filed for quashing the FIRs dated 04.02.2019 and 06.02.2019 and the consequent criminal proceeding, i.e. Criminal Trial No.74/2019, arising out of Champhai Police Station Case No.9/2019 dated 06.02.2019 under Sections 420 and 506 IPC. 3. The petitioner's counsel submits that the case of the respondent No. 5 is that the respondent No. 5 had given Rs. 2,99,50,000/- to the petitioner sometime in July, 2018, for supply of sugar and fertilizer. However, the supply of the materials made by the petitioner to the respondent No. 5 was short by Rs. 69,12,327/-. Despite the request made by the respondent No. 5 to the petitioner to make good the short supply, the petitioner refused to send the same. When the respondent No. 5 and her husband went to meet the petitioner demanding payment of Rs. 69,12,327/- at Silchar in January, 2019, one of the petitioner's employees, namely, Sh. Abdul Ahad Laskar threatened them with a knife saying that they would not be given any money and were told not to come again to the shop/place. 4. The petitioner's counsel submits that initially the respondent No. 5 filed FIR dated 4.2.2019. However, a subsequent FIR dated 06.02.2019 was filed by the respondent No. 5 which was registered as Champhai Police Station Case No. 9/2019 under Sections 420 and 506 IPC. The petitioner was also arrested by the Champhai Police and he was released on bail by the Court of the CJM, Champhai on 19.03.2019. 5. The petitioner's counsel submits that a Deed of Agreement dated 20.03.2019 was executed between the respondent No. 5 and the petitioner, wherein it was agreed that out of the claim of Rs. 69,12,327/- made by the respondent No. 5, the petitioner would pay Rs. 25 lakhs plus another Rs. 40 lakh in settlement of the claim made by the respondent No. 5. The petitioner's counsel submits that Rs. 25 lakhs was paid through RTGS/Bank Transfer to the respondent No. 5 by the petitioner. For the amount of Rs. 69,12,327/- made by the respondent No. 5, the petitioner would pay Rs. 25 lakhs plus another Rs. 40 lakh in settlement of the claim made by the respondent No. 5. The petitioner's counsel submits that Rs. 25 lakhs was paid through RTGS/Bank Transfer to the respondent No. 5 by the petitioner. For the amount of Rs. 40 lakhs, the petitioner gave a United Bank of India (UBI) Cheque dated 30.07.2019, bearing Cheque No. 442189, in favour of Abub Ahmed Mazumder, who was the business partner/agent of the respondent No. 5. Thereafter, the respondent No. 5 was to withdraw the FIR dated 06.02.2019, on the basis of which Champhai Police Station Case No. 9/2019 had been registered against the petitioner. The petitioner, on his part, was to withdraw the FIR filed by the petitioner against Sh. Abub Ahmed Mazumder, i.e. FIR No. 336 dated 29.01.2019 under Section 448/365/395 IPC. 6. The petitioner's counsel submits that in terms of the Deed of Agreement dated 20.03.2019, the FIR dated 06.02.2019 was supposed to be withdrawn. However, the same has not been done. He also submits that though Cheque bearing No. 442189 dated 30.7.2019 amounting to Rs. 40 lakhs, which had been given to Sh. Abub Ahmed Mazumder had bounced due to insufficient funds, the same could not have been the ground for not withdrawing the FIR dated 06.02.2019, as Sh. Abub Ahmed Mazumder had filed Case No. N.I(CR) Case/0000221/2019 in the Court of the SDJM (S), Silchar under Negotiable Instruments Act, 1881, for the bounced cheque wherein the proceedings were still going on. 7. The petitioner's counsel submits that as the terms and conditions laid down in the Deed of Agreement dated 20.03.2019, regarding payment of money by way of Bank transfer and by way of cheque has already been made by the petitioner, the FIR dated 06.02.2019 should be quashed and set aside, as the respondent No. 5, through Sh. Abub Ahmed Mazumder has already filed a case under the Negotiable Instruments Act for the bounced cheque. He submits that the petitioner had submitted an FIR No. 336 dated 29.01.2019 under Sections 448/365/395 IPC against Sh. Abub Ahmed Mazumder, who is the agent of the respondent No. 5. Abub Ahmed Mazumder has already filed a case under the Negotiable Instruments Act for the bounced cheque. He submits that the petitioner had submitted an FIR No. 336 dated 29.01.2019 under Sections 448/365/395 IPC against Sh. Abub Ahmed Mazumder, who is the agent of the respondent No. 5. In retaliation for the same, the petitioner has filed the FIR dated 06.02.2019, against the petitioner accusing him of cheating the respondent No. 5, on the ground that the respondent No. 5 and her husband had been threatened with a knife by the petitioner's employee. The petitioner's counsel submits that all the above events goes to the show that the issue of short supply of sugar and fertilizer being in the nature of a civil dispute, the FIR and consequential case registered against him should be quashed. 8. In support of his above submissions, the learned counsel has relied upon various judgments of the Apex Court and this Court, which are as follows:- 1) Narinder Singer & Ors. Vs. State of Punjab & Anr., 2014 AIR SCW 2065. 2) Anand Kumar Mohatta & Anr. Vs. State (Govt. of NCT of Delhi) Department of Home & Anr., AIR 2019 SC 210 . 3) Joseph Salvaraj A Vs. State of Gujarat & Ors., AIR 2011 SC 2258 . 4) Binod Kumar & Ors. Vs. State of Bihar & Anr., AIR 2015 SC (Supp) 1446. 5) Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Ors., AIR 2019 SC 327 . 6) Ramesh Chander Vs. State of NCT of Delhi & Anr., AIR 2018 SC (Supp) 1135. 7) Chorus Machineries (M/S) & Ors. Vs. Dilip Ch. Baruah & Anr., 2018 (5) GLT 768. 8) Kevya Kanta Gogoi & Anr. Vs. State of Assam & Anr., 2019 (1) GLT 319. 9. Mr. F. Lalengliana, the learned counsel appearing for the respondent No.5, on the other hand, submits that the petitioner has till date not paid Rs. 40 lakhs to the respondent No. 5 or to his business agent, Sh. Abub Ahmed Mazumder, even though the petitioner's cheque had bounced. He submits that the petitioner being fully aware that his cheque had bounced is only trying to cheat the respondent No. 5 by not paying the amount of Rs. 40 lakhs that had been reflected in the Deed of Agreement. Abub Ahmed Mazumder, even though the petitioner's cheque had bounced. He submits that the petitioner being fully aware that his cheque had bounced is only trying to cheat the respondent No. 5 by not paying the amount of Rs. 40 lakhs that had been reflected in the Deed of Agreement. He also submits that the petitioner had taken time earlier, to enable him to make payment for the remaining Rs. 40 lakhs in terms of the Agreement dated 20.03.2019. However, no payment is being contemplated by the petitioner. He accordingly submits that no ground for quashing the FIR had been made out by the petitioner and prayed that the petition should be dismissed. 10. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor submits that not only has the respondent No. 5 been cheated by the petitioner, but it was found that the respondent No. 5 and her husband were criminally intimidated by the petitioner's employee, by threatening them with a knife. She also submits that the case registered against the petitioner is a cheating case, wherein the petitioner has been charged under Section 420/506 IPC. The Addl. Public Prosecutor further submits that the letter dated 05.02.2021, alongwith the annexure, issued by the Office of the Chief Judicial Magistrate, Champhai, shows that charge sheet had been filed in Champhai Police Station Case No. 9/2019 on 17.01.2020. 11. I have heard the learned counsels for the parties. 12. The fact that there was a business arrangement between the petitioner and the respondent No. 5 for supply of sugar and fertilizer is an admitted fact. It is also an admitted fact that Rs. 2,99,50,000/- had been sent by the respondent No. 5 to the petitioner for supply of sugar and fertilizer. The Deed of Agreement dated 20.03.2019, made between, the petitioner and the respondent No. 5, makes it clear that the repayment module of Rs. 69,12,327/- has been clearly laid out, with the petitioner requiring to pay the respondent No. 5 Rs. 40 lakhs through Cheque, in addition to the Rs. 25 lakhs already transferred through RTGS/Bank transfer. The above clearly shows that the petitioner had made a short supply of materials to the respondent No. 5. 13. The petitioner's counsel has relied upon the Deed of Agreement dated 20.3.2019, which was annexed to the affidavit filed by the respondent No. 5, for quashing the FIR dated 06.02.2019. 25 lakhs already transferred through RTGS/Bank transfer. The above clearly shows that the petitioner had made a short supply of materials to the respondent No. 5. 13. The petitioner's counsel has relied upon the Deed of Agreement dated 20.3.2019, which was annexed to the affidavit filed by the respondent No. 5, for quashing the FIR dated 06.02.2019. However, the petitioner has not annexed a copy of the said Deed of Agreement dated 20.03.2019 in his petition. The same is an annexure in the affidavit filed by the respondent No. 5. However, the petitioner is now relying upon the same to support his case that the dispute between the parties being a civil dispute, the FIR dated 06.02.2019 should be quashed. 14. In the case of K.D. Sharma Vs. Steel Authority of India Limited & Ors., (2008) 12 SCC 481, the Apex Court has held that the party who invokes the extraordinary jurisdiction under Article 32 and Article 226 of the Constitution is supposed to be truthful, frank and open. He cannot be allowed to play "hide and seek" and to "pick and choose" the facts. If material facts are suppressed or distorted, the very functioning of the writ courts and exercise would become impossible. The Apex Court further held that the Court had inherent power to protect itself and to prevent an abuse of its process to discharge the Rule nisi and refuse to proceed further with the examination of case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. Infact, such an application requires to be dealt with for contempt of court for abusing the process of the Court. Though the present petition is under Article (Sic Section) 482 CrPC, it is expected of a litigant to be truthful, frank and open with the Court and not to hide facts from the Court. 15. In the case of Chorus Machineries (M/S) & Ors. (Supra), this Court has referred to the judgments of the Apex Court and held that when the allegations made in the FIR and other materials accompanying the FIR do not disclose a cognizable offence, justifying an investigation by a Police Officer under Section 156(1) of the Cr.P.C. except under an order of Magistrate within Section 155 (2) Cr.P.C., such FIR or complaint deserves to be quashed. In the case of Kevya Kanta Gogoi & Anr. (Supra), this Court has held that when the terms of an agreement are partly performed, disputes in question arising out of part performance of the terms of a contract is a dispute of a civil nature. Thus, in the absence of any specific allegation regarding cheating and as no mens rea can be noticed with regard to commission of an alleged offence in that case, no criminal liability arises against the person who did not partly perform their contract agreement. In the Apex Court cases cited by the petitioner, the Apex Court has held that a complaint may be quashed where it is a clear case of abuse of the process of the court or where the criminal proceeding has been initiated with mala fides/malice to cause harm or vengeance, where the allegations are absurd and inherently improbable and do not disclose commission of an offence. The above being said, the Apex Court in the judgments referred to by the learned counsel for the petitioner, also states that the mere fact that a complaint relates to a criminal transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegation in the complaint disclosed a criminal offence or not. 16. In the present case, the petitioner, though having received Rs. 2,99,50,000/- for supply of sugar and fertilizer from the respondent No. 5 in July, 2018 had made a short supply of Rs. 69,12,327/-. The deed of agreement dated 20.03.2019 was executed between the respondent No. 5 and the petitioner, wherein the following terms and conditions were incorporated:- "Deed of Agreement This Deed of Agreement is executed on this the 20th day of March, 2019 between Smt. Lalhnemi (herein referred to as First Party) W/o Chhiarliana R/o Venglai, Champhai, Mizoram. -And Shri. Prosanit Dutta, S/o Late S.R. Dutta (herein referred to as Second party) H/o Arpita Dutta R/o Ambica Patty, Silchar, Cachar, Assam. The First party shall include her heirs, relatives or legal representatives and the Second Party shall include his heirs, relatives or legal representatives. -And Shri. Prosanit Dutta, S/o Late S.R. Dutta (herein referred to as Second party) H/o Arpita Dutta R/o Ambica Patty, Silchar, Cachar, Assam. The First party shall include her heirs, relatives or legal representatives and the Second Party shall include his heirs, relatives or legal representatives. Now this Deed of Agreement Witnesses as follows: That both the parties are having business relation with each other and due to some mis-communication and misunderstanding the First Party has file one case vide Champhai P/S Case No. 9/19 i.e. Crl.Trl. No. 74/2019 U/s 240/506 IPC against the Second Party on 06.02.19. Thereafter Champhai Police on strength of Warrant of Arrest arrested the Second Party and was released on bail on 19.03.2019 and both the parties agreed as under: 1. That the Second Party shall withdraw an FIR No. 336 dated 29.01.19 u/s. 448/365/395 IPC, G.R No. 548/19 submitted by him against Abub Ahmed Mazumder S/o Lt. Mohibur Rahmun & Ors at Sadar Police Station, Silchar, Assam. 2. That the First Party shall also withdraw an FIR dated 06.02.2019 submitted by her at Champhai Police Station, Mizoram registered as CPI Case No. 9/19 u/s. 420/506 IPC after the Second Party withdraw the said FIR as in para 1. 3. That the First Party acknowledges the receipt of an amount of Rs. 25,00,000/- (Rupees Twenty Five Lakhs) only which has already been paid by the Second Party through RTGS/Bank transfer. 4. That out of the indebted amount of Rs. 69,12,327/- (Rupees Sixty Nine lakhs twelve thousand three hundred and twenty seven) written in the FIR by the First Party, Rs. 25,00,000/- (Rupees Twenty Five Lakhs) has already been paid by the Second Party to the First Party and that the remaining amount of Rs. 44,12,327/- (Rupees Forty Four Lakhs Twelve Thousand Three Hundred and Twenty seven) only has been settled by negotiation done between both the parties as well as Abub Ahmed Mazumder to Rs. 40,00,000/- (Rupees Forty Lakhs) only. 5. That the First Party receives post-dated 30.7.19 UBI cheque bearing No. 442189 amounting to Rs. 40,00,000/- (Rupees Forty Lakhs) only in favour of Abub Ahmed Mazu-mder in United Bank of India payable at Silchar from the Second Party on this the 21st day of March, 2019. 6. That the Second Party has no financial dues as the First Party already receive postdated 30.07.19 UBI cheque bearing No. 442189 amounting to Rs. 40,00,000/- (Rupees Forty Lakhs) only in favour of Abub Ahmed Mazu-mder in United Bank of India payable at Silchar from the Second Party on this the 21st day of March, 2019. 6. That the Second Party has no financial dues as the First Party already receive postdated 30.07.19 UBI cheque bearing No. 442189 amounting to Rs. 40,00,000/- (Rupees Forty Lakhs) only in favour of Abub Ahmed Mazumder in United Bank of India as per the instruction of the First Party which is mention in para No. 5. 7. That after all the above-mentioned conditions are fulfilled, the Second Party shall be free from financial dues against the First Party or Abub Ahmed Mazumder and that there shall be a peaceful environment between both the parties and Abub Ahmed Mazumder and maintain a good relation in future. 8. That this Agreement has been made without coercion, undue influence and without any force and is made with bonafide intention and free consent of both parties. 9. That this Agreement shall not be revoked nor amended by neither parties in the future in any Court of Law. In Witness Whereof, the Parties hereunto appended our signature on this the 21st day of March, 2019 at Champhai, Mizoram." 17. While Rs. 25 lakhs was paid to the respondent No. 5 through RTGS/Bank Transfer, the petitioner gave a United Bank of India (UBI) Cheque No. 442189 dt. 30.7.2019 for Rs. 40 Lakhs in favour of Sh. Abub Ahmed Mazumder, who was the business partner/agent of the respondent No. 5. However, the cheque bounced due to insufficient funds. It may be pertinent to mention herein that the said Abub Ahmed Mazumder has not been made a party to this case. 18. This Court had heard this matter at length on the last Court date, i.e. 01.04.2021 and the case was fixed for today as part heard, as Mr. P.K. Deka, the learned (counsel for the petitioner had stated that he had received instructions that the petitioner would be paying Rs. 40 lakhs to the respondent No. 5. However, Mr. P.K. Deka submits today that though he has communicated with the petitioner, he has not received any instructions from the petitioner with regard to the payment of Rs. 40 lakhs to the respondent No. 5. 19. The last paragraph of the Order dated 01.04.2021 passed by this Court is reproduced below:- "At this stage, Mr. However, Mr. P.K. Deka submits today that though he has communicated with the petitioner, he has not received any instructions from the petitioner with regard to the payment of Rs. 40 lakhs to the respondent No. 5. 19. The last paragraph of the Order dated 01.04.2021 passed by this Court is reproduced below:- "At this stage, Mr. P.K. Deka, the learned counsel for the petitioner is given time to obtain instructions from his client and at the time of resuming of the Court, the petitioner's counsel submits that he has received instructions that the petitioner will be paying the Rs. 40 lakhs to the respondent No. 5. However, he needs some time to repay the said amount. On the prayer of the petitioner's counsel, list the matter as part heard on 21.05.2021." 20. After hearing the learned counsels for the parties and seeing the conduct of the petitioner, from the time of short supply of materials and issuing a cheque which has bounced, this Court is of the view that the present case, though initially a civil dispute has now taken the colour of a criminal case. Further, the petitioner is now even trying to play games with this Court with the only intention to delay the case and avoid his liability. The respondent No. 5 had paid the petitioner Rs. 2,99,50,000/- in July, 2018 and even though nearly 3 years have elapsed, the petitioner appears to be avoiding his liability to repay the amount of Rs. 40 lakhs. The attempt to resolve the dispute by way of the Deed of Agreement dated 20.03.2019 is only a sham/ruse to cheat the respondent No. 5, as the petitioner had given a cheque for Rs. 40 lakhs, without having sufficient bank balance for the same. 21. In the case of Kamal Shivaji Pokarnekar Vs. State of Maharashtra & Ors, (2019) 14 SCC 350 , the Apex Court has held that criminal complaints cannot be quashed only on the ground that allegations made therein appear to be of a civil nature. In the present case, the petitioner's action seems to contain an element of cheating. 22. 21. In the case of Kamal Shivaji Pokarnekar Vs. State of Maharashtra & Ors, (2019) 14 SCC 350 , the Apex Court has held that criminal complaints cannot be quashed only on the ground that allegations made therein appear to be of a civil nature. In the present case, the petitioner's action seems to contain an element of cheating. 22. In view of the reasons stated above, this Court finds that the petitioner has not been able to make out a case for quashing the FIR dated 06.02.2019 and the consequent criminal proceeding in Criminal Trial No. 74/2019, arising out of Champhai P.S. Case No. 9/2019 dated 6.2.2019 under Section 420 & 506 IPC. 23. The Criminal Petition is accordingly dismissed.