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2022 DIGILAW 1055 (JHR)

Jitu Ram Purty v. State of Jharkhand

2022-08-23

DEEPAK ROSHAN

body2022
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 26.5.2003 passed by learned 2nd Additional Sessions Judge, Chaibasa in Criminal Appeal No. 3/1995; whereby the judgment of conviction and order of sentence, both dated 21.12.1994, passed by the learned Judicial Magistrate, 1st Class, Porohat at Chaibasa corresponding to G.R. No. 191/1989, in Trial No. 18/94; whereby the petitioner was convicted and was sentenced to undergo R.I. for two years for the offence under Sections 406 IPC; has been affirmed and the appeal filed by the petitioner was dismissed. 3. The prosecution case in short is that Shri S.S. Prasad the then B.D.O. cum C.O. Bandgaon (Singhbhum West) lodged the first information report of this case at Keraikella P.S. on 6.7.1989 stating therein that the petitioner/accused Jitu Ram Purty entered into an agreement on 23.5.1988 with the Circle Office, Bandgaon to dig ten wells under Jaldhara Scheme and in the said agreement he gave address of his house at Bhalu pani but during service of notice upon him he was found to be resident of village Karudih. It has further been stated that as per the agreement petitioner had to complete the work of the entire ten schemes by 30.6.1988. The petitioner was also paid Rs. 5,000 each for each Yojona scheme bearing No. 1/88-89 to Yojona Scheme 10/88- 89. Thus, he was paid Rs. 50,000/- in advance under the aforesaid schemes. It is further stated that the accused did not initiate the work in any of the said scheme and he was also sent notice dated 2.12.1988, 15.5.1989 and 1.6.1989, but even then, the accused did not initiate the work in any of the said schemes. It is further stated that thus the accused misappropriated the Government money and also violated the terms and condition of the agreement, so it was requested to take legal action against the accused. On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried and finally he was convicted. 4. Mr. Vibhor Mayank, learned counsel for the petitioner assisted by Ms. On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the petitioner for which he pleaded not guilty and claimed to be tried and finally he was convicted. 4. Mr. Vibhor Mayank, learned counsel for the petitioner assisted by Ms. Apurva Pathak submits that for the purpose of Section 405 and Section 406 the prosecution is required to prove that there was dishonest intention right from the very beginning i.e. right from the very inception of the transaction. The prosecution is also required to prima facie establish that there was intention on part of the accused to cheat and deceive right from the very inception and on account of such act of cheating the complainant has suffered a wrongful loss and the same has resulted in wrongful gain to the petitioner. Since the petitioner entered into an agreement on 23.05.1988 and the petitioner was required to dig 10 wells for which an advance of Rs. 5,000/- was given to the petitioner for each well and the petitioner had completed the work up-to the level for which advance was paid to him; however; since the Circle Officer stopped paying him money, he could not complete the work. PW-5 has specifically stated that the petitioner had carried out certain work; however, these were not satisfactory. Thus, it is one thing to say that the petitioner did not carry out any work and it is another thing to say that some work was carried out by the petitioner. It shows that petitioner had the intention to complete the work and thus this is not a case of dishonest intention right from the very beginning. Learned counsel further contended that the issue was purely civil dispute as the same was mere breach of contract; as such no criminal liability can be fastened upon the petitioner. He further submits that PW-2 is a Junior Engineer of the block, who stated that he took the measurement of the wells on 06.06.1989 and entered in the measurement book, however, the measurement book was never brought on record. The measurement book could have proved the fact that whether any work has been performed by the petitioner or not. The same would have also confirmed as to whether the petitioner has rightfully utilized the advance money. The measurement book could have proved the fact that whether any work has been performed by the petitioner or not. The same would have also confirmed as to whether the petitioner has rightfully utilized the advance money. The prosecution deliberately did not bring the same on record; as such adverse inference should be drawn against them for the same. In support of the above contention learned counsels relied upon the judgment in the case of Mohanlal Shamji Soni vs. Union of India and Another, 1991 Supp. (1) SCC 271, wherein it has been held by the Hon’ble Supreme Court that “.......it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue.” The prosecution deliberately did not bring on record the best evidence, i.e. the measurement book which could have confirmed as to whether the work has been executed or not. Under such circumstances, adverse inference should be draw against the prosecution. Learned counsel further draws attention of this Court towards the deposition of PW-7 who has stated that although he visited the work site with a constable but the said constable is not a witness in the case. In support of this contention he relied upon the judgment passed in the case of Digamber Vaishnav and Another vs. State of Chhattisgarh, (2019) 4 SCC 522 submits that a three-judge bench of the Hon’ble Supreme Court observed that no attempt had been made by the prosecution to examine the witnesses who were present at the scene of the incident at the relevant time and who had first seen the deceased persons and thus held that the best evidence had been withheld. The prosecution has also withheld the best witness, as such adverse inference should be drawn against the prosecution. Learned counsel lastly submits that the agreement envisages that if any sum remains due by the contractor in respect of any work or work is not executed, then the amount shall be realized or recovered from the contractor by filing a case under the Public Demands Recovery Act or Civil Suit. Learned counsel lastly submits that the agreement envisages that if any sum remains due by the contractor in respect of any work or work is not executed, then the amount shall be realized or recovered from the contractor by filing a case under the Public Demands Recovery Act or Civil Suit. The agreement specifically dealt with a situation where amount could be recovered if work was not completed by the contractor, as such even assuming the allegation to be true in its entirety, then also no offence is made out, as the remedy is covered under the agreement itself between the parties. Learned counsel also referred the judgment passed in State of Haryana and Others vs. Ch. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the Hon’ble Supreme Court has held that if there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party then he submits that F.I.R. and entire criminal proceeding in such cases can be quashed. Relying upon the above submissions Learned counsel prays that this criminal revision deserves to be allowed. 5. Ms. Vandana Bharti, learned APP opposed the prayer made by the petitioner. She further draws attention of this Court towards the Appellate Court judgment and submits that the learned Appellate Court while appreciating the judgment of conviction has held that even the petitioner has admitted that the work has not been completed. She further contended that the learned Appellate Court has also dealt with the argument of learned counsel for the petitioner that as per the agreement the prosecution were having option to file a civil case also, however the learned appellate court has categorically held that in the said agreement there was no clause that no criminal case would be filed against the contractor for misappropriation. She further submits that there are categorical statements of the learned Trial Court as well as Appellate Court that the petitioner did not complete the work and also in the agreement, he did not give the correct address as the notices which were sent to him was un-served. She further submits that there are categorical statements of the learned Trial Court as well as Appellate Court that the petitioner did not complete the work and also in the agreement, he did not give the correct address as the notices which were sent to him was un-served. She further referred to the judgment passed by the Hon’ble Apex Court in the case of Himachal Pradesh vs. Karanveer, (2006) 5 SCC 381 wherein the Hon’ble Apex Court has held that the actual manner of misappropriation is not required to be proved by the prosecution once entrustment is proved it was for the accused to prove as to how the property entrusted to him was dealt with in view of the Section 405 IPC. For brevity paragraph 11 is quoted herein-below: “11. The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefore.” Relying upon the aforesaid judgment learned APP submits that admittedly; the work has not been completed and there was a specific provision in the agreement itself that entire payment will not be made before submission of completion certificate and admittedly the petitioner did not file the completion certificate; as such filing of complaint case was obvious and it is not required that every clause should be mentioned in the agreement to the extent that the petitioner shall also be prosecuted for criminal charges. The moment petitioner fails to complete the work within stipulated time, he is bound by the terms of agreement and certainly non-completion of work will amount to misappropriation of money, inasmuch as, the money which was given to the petitioner in advance was not utilized and the work was not completed. 6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below and the LCR, it appears that the petitioner entered into an agreement on 23.5.1988 at Circle Office to dig ten wells under Jaldhara Scheme. It has also been alleged in the complaint petition that in the said agreement the petitioner gave different address where he never resided. It has also been alleged in the complaint petition that in the said agreement the petitioner gave different address where he never resided. As per the agreement the petitioner had to complete the work of digging 10 wells by 30.6.1988 for that the petitioner was also paid Rs. 5,000/- each under the scheme totaling to Rs. 50,000/- as advance for digging 10 wells. The admitted case of the parties is that the work of digging wells was not completed. The case of the prosecution is that intentionally the petitioner did not complete the work and from very inception he wanted to misappropriate the Government's money. The defense of the petitioner is that the entire amount of Rs. 10,000/- each for digging 10 wells has not been paid to him and that is the reason the work of digging well was not completed. 7. From perusal of paragraph Nos. 11 and 14 of the Judgment, it transpires that there is specific finding of learned Appellate Court who after going through the deposition and case records of the learned trial court, has held that the petitioner accused had admittedly did not complete the said work for which he was entrusted. It further transpires from the impugned judgment that the petitioner had taken Rs. 50,000/- as advance money (Rs. 5,000/- each for digging 10 wells). However, he did not file the completion certificate. Thus, it is inferred that the petitioner did start the work of digging, but did not file the completion certificate. 8. To attract the charge under Section 406 and 420, mere breach of contract cannot give rise the criminal prosecution. For cheating, fraudulent or dishonest intention is the basis of offence of cheating, a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability or damage. This ratio has been decided in the case of Hridaya Ranjan Prasad Verma and Others vs. State of Bihar, (2000) 4 SCC 168 the relevant paragraph is quoted herein-below: “15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” In the instant case admittedly, there is a finding that the work has not been completed; in other words the work was started, however the completion certificate was not given by the petitioner and for that criminal case was initiated. After going through the terms of agreement which has also been considered by the Appellate Court in Para-13 which says that in case of failure on part of contractor to execute or complete the work in stipulate time, the unspent of the advance together with the loss may be recovered from him as a public demand meaning thereby to say there was specific clause in the agreement to file PDR case for non-fulfillment of agreed work. 9. The Appellate court has given finding that since there is no any specific stipulation in the said agreement that no criminal case would be filed against the contractor for misappropriation of the Government money entrusted to him as advance under the said scheme, they cannot be estopped against filing of criminal case against the contractor for such misappropriation of the Government money. This finding of the Appellate Court that since no specific clause is mentioned that no criminal case can be filed, therefore criminal case can be filed for misappropriation; is perverse in the background of this case, inasmuch as, work was started but the same was not completed. 10. This finding of the Appellate Court that since no specific clause is mentioned that no criminal case can be filed, therefore criminal case can be filed for misappropriation; is perverse in the background of this case, inasmuch as, work was started but the same was not completed. 10. At this stage, it is also pertinent to mention here that the measurement book has also not been produced before the learned trial court. Thus, non-submission of measurement book highly prejudice the case of the petitioner, inasmuch as, the percentage of work completion could not be known to either of the parties because admittedly petitioner took only Rs. 5,000/- each for 10 wells as against the agreement of Rs. 10,000/- agreed amount. Since the measurement book was neither produced nor exhibited; it is very difficult to ascertained that how much amount of work was done by the petitioner or as to whether the work was at all started or the entire amount was misappropriated. As such, this court holds that in the background of the facts and circumstances of this case; the prosecution was having right to file case under the PDR Act as per the agreement. 11. At the cost of repetition, the complaint leveled against the petitioner is one which involves commission of offence of criminal breach of trust. While a criminal breach of trust as postulated under Section 405 of the penal code deals with misappropriation or conversion of entrusted property to his own use with a dishonest intention. However, in the instant case after going through the deposition of informant and other prosecution witness, it cannot be said that the petitioner was having dishonest intention right from inception and the work of petitioner was in furtherance of a dishonest and fraudulent scheme in which it requires scrutiny. The complainant failed to establish that there was intention on the part of the petitioner and/or to cheat or fraud the complainant right from the inception. The only case of the prosecution is that though the petitioner has taken advance of Rs. 5,000/- each for digging 10 wells but he did not complete the work nor he submitted the completion certificate and when notices were issued to him the same were unanswered as in the agreement, he has given another address. The only case of the prosecution is that though the petitioner has taken advance of Rs. 5,000/- each for digging 10 wells but he did not complete the work nor he submitted the completion certificate and when notices were issued to him the same were unanswered as in the agreement, he has given another address. None of the document which has been exhibited nor any statement of the prosecution witness categorically stipulates that the petitioner was having dishonest intention to commit fraud with the complainant right from inception. 12. The judgment relied upon by the learned APP is not applicable in the instant case in the background that though entrustment of property is proved but misappropriation of amount is not proved; rather the only allegation is non-completion of work as well as non-submission of completion certificate. Non production of “Measurement Book” further protect the petitioner from the allegation that he has not at all started the work and misappropriated the entire money. 13. In view of the aforesaid discussion, this Court holds that the learned trial court as well as appellate court has failed to consider all these aspects of the case, consequently the same deserves to be quashed. Consequently, the judgment dated 26.5.2003 passed by learned 2nd Additional District & Sessions Judge, Chaibasa in Criminal Appeal No. 3/1995; whereby the judgment of conviction and order of sentence dated 21.12.1994 passed by the learned Judicial Magistrate, 1st Class, Porahat at Chaibasa corresponding to G.R. No. 191/1989, has been affirmed, is hereby, quashed and set aside. 14. The petitioner shall be discharged from the liability of his bail bonds. 15. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. 16. Let a copy of this order be communicated to the court below and also to the petitioner through the officer-in-charge of concerned police station. 17. Let the lower court record be sent to the court concerned forthwith.