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2022 DIGILAW 1380 (JHR)

P. G. Interior and Decor v. State of Jharkhand

2022-12-08

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Binod Singh, the learned counsel appearing for the petitioner and Mr. Vineet Kumar Vashistha, the learned counsel appearing on behalf of the respondent/State. 2. This petition has been filed for quashing of the F.I.R. being Giridih Muffasil P.S. Case No. 226 of 2022 registered for the offence under sections 406, 409, 420, 120B, 34 of the I.P.C. pending in the court of learned Sub-Divisional Judicial Magistrate, Giridih. 3. The F.I.R. was registered alleging therein that the prosecution case in brief is that on 28.08.2022, the informant, O.P. No. 2 Block Development Officer, Giridih, has made the written report dated 28.08.2022, before the Officer In-charge, Giridih Muffasil P.S. alleging therein that he has received the letter No. 1945, dated 27.08.2022, issued by the Deputy Development Commissioner, Giridih, that an FIR be lodged for withdrawal of the amount against the installation of street light under14th Finance Commission. Further it has been alleged that in the Gram Panchayat, Akdonikala, within the Giridih Block, LED street light has been supplied by P.G. Interior and Decor, Thana Chowk, Ramgarh Cantt. PO and PS Ramgarh, Jharkhand. Further it has been alleged that an enquiry team at the district level was constituted for the irregularity of installation of street light in Gram Panhayat, Akdonkala, wherein the excess amount of Rs. 8,83,094/- has been withdrawn. 4. Mr. Binod Singh, the learned counsel appearing on behalf of the petitioner submits that the petitioner has worked with regard to installation of street-light under 14th Finance Commission in Gram Panchayat, Akdonikala and it is alleged that a sum of Rs. 8,83,094/- has been withdrawn which is not correct. According to him, the petitioner has executed the work in terms of the tender and for recovery of the amount the F.I.R. has been registered and it is civil in nature and there is no criminality involved and this Court is having ample power sitting under section 482 Cr.P.C. to quash the F.I.R. To buttress his argument, he relied in the case of Anand Kumar Mohatta vs. State (NCT of Delhi), (2019) 11 SCC 706 and refers to paragraph no. 27 of the said judgment which is quoted herein-below: “27. We find it strange that the complainant has not made any attempt for the recovery of the money of rupees one crore except by filing this criminal complaint. 27 of the said judgment which is quoted herein-below: “27. We find it strange that the complainant has not made any attempt for the recovery of the money of rupees one crore except by filing this criminal complaint. This action appears to be mala fide and unsustainable.” 5. Relying on this judgment, he submits that this case is mala fide and the F.I.R. is required to be quashed. He further submits that cheating is only made out if the intention from the very beginning is there. He submits that the intention from the very beginning was not there and the case is not made out. To buttress his argument, he relied in the case of Sushil Sethi vs. State of Arunachal Pradesh, (2020) 3 SCC 240 and refers to paragraph nos. 6 and 8 of the said judgment which are quoted herein-below: “6. Considering the averments and the allegations in the FIR and even the charge-sheet the main allegations are that the company, namely, M/s SPML Infra Limited supplied sub-standard materials-runner bucket turbines and the supplied runner bucket turbines were not as per the technical specifications. It is also required to be noted that there is no FIR/complaint/charge-sheet against the company-M/s SPML Infra Limited and the appellants are arrayed as an accused as the Managing Director and Director of M/s SPML Infra Limited respectively. From a bare reading of the FIR and even the charge-sheet, there are no allegations that there was a fraudulent and dishonest intention to cheat the Government from the very beginning of the transaction. Even there are no specific allegations and averments in the FIR/charge-sheet that the appellants were in-charge of administration and management of the company and thereby vicariously liable. In light of the aforesaid, the prayer of the appellants to quash the criminal proceedings against the appellants for the offence under Section 420 IPC is required to be considered. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 Cr.P.C. and to quash the impugned criminal proceedings. 8.1. As observed hereinabove, the charge-sheet has been filed against the appellants for the offences under Section 420 read with Section 120-B IPC. 8.1. As observed hereinabove, the charge-sheet has been filed against the appellants for the offences under Section 420 read with Section 120-B IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the charge-sheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning-1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out. 8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In Maksud Saiyed vs. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692, it is observed and held by this Court that the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that the statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside. 8.3. At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the charge-sheet was submitted/filed as far back as on 28-5-2004, the appellants were served with the summons only in the year 2017 i.e. after a period of approximately 13 years from the date of filing the charge-sheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C.” 6. On these grounds, he submits that the entire case is bad in law and the F.I.R. may kindly be quashed. 7. On the other hand, Mr. Vashistha, the learned counsel appearing on behalf of the respondent State submits that the F.I.R. has been registered and the investigation is going on and the charge sheet has not been submitted and at this stage, the allegation, prima facie, suggest that the case is made out. 7. On the other hand, Mr. Vashistha, the learned counsel appearing on behalf of the respondent State submits that the F.I.R. has been registered and the investigation is going on and the charge sheet has not been submitted and at this stage, the allegation, prima facie, suggest that the case is made out. He submits that there are parameters of quashing of the F.I.R. The petitioner has been show-caused by the Deputy Commissioner and in a development programme of the Government of India that defalcation of the amount has taken place. At this stage, this Court may not quash the F.I.R. as the investigation is going on. 8. In view of the above submission of the learned counsel for the parties, the Court has gone through the contents of the F.I.R. The Deputy Development Commissioner, Giridih has requested the B.D.O. Giridih considering that the fact finding enquiry committee team was constituted with regard to fixing/installation of street light in the Gram Panchayat, Akdonikala, Block Pirtand in which it is found that Pravin Kumar, Jan Sevak has withdrawn a sum of Rs. 8,83,094/- fraudulently and the Deputy Commissioner has directed to lodge the F.I.R. against the erring persons and pursuant to that the B.D.O. has lodged the F.I.R. before the Officer In-charge, Giridih alleging therein that under the 14th Finance Commission report it was decided to install the street-lights in Gram Panchayats and in connivance with the others including the petitioner Rs. 8,83,094/- has been fraudulently withdrawn for the Financial Year 2018-19 and on the basis of that the F.I.R. has been registered and prima-facie the allegations are there in the F.I.R. which was lodged pursuant to the fact finding committee report which is the subject matter of investigation and the investigation is going on. There are parameters of quashing of the F.I.R. Where the Court comes to the conclusion that in civil case criminality has been put into, in that scenario the Court quashes the F.I.R. however, if the criminality as well as civil case is made out, the case can be booked into for criminality and civil both, as has been held by the Hon’ble Supreme Court in the case of Medchl Chemicals and Pharma (P) Ltd. vs. Biological E. Ltd. (2000) 3 SCC 269 . Prima-facie, there is allegation of fraudulently withdrawing of government money and in that view of the matter; this is not a case to quash the F.I.R. In the case relied by Mr. Binod Singh, the learned counsel appearing for the petitioner in the case of Anand Kumar Mohatta vs. State (NCT of Delhi), the dispute was arising out of an agreement which was for development of the property by the appellants of that case and which was the condition in the agreement that certain amount will be deposited as security. Subsequently, the appellant of that case wrote letter stating that they do not wish to develop the property and they returned the amount of advance to the respondent and in that case the security amount of Rs. 1 crore has not been refunded. He filed the complaint case before the S.H.O. and P.S. of New Delhi. Earlier the case was filed on 20.08.2014 that S.H.O. and on a fresh complaint filed by the respondent he approached the High Court under section 482 Cr.P.C. and in that fact the Hon’ble Supreme Court has interfered with the matter and has quashed the proceeding. That fact is not arising in the present case and the said case is not helping the petitioner. In the case of Sushil Sethi vs. State of Arunachal Pradesh (supra) as relied by Mr. Binod Singh, the learned counsel appearing on behalf of the petitioner there was allegation of supply of sub-standard equipment and there was no specific allegation against the officers of the company and the proceeding has been held and considering that the vicarious liability cannot be fastened on the Director in absence of the company, the Hon’ble Supreme Court has interfered and the fact of that case is also not helping the petitioner. 9. In view of the above facts and reasons and the analysis, Cr. M.P. No. 3568 of 2022 is dismissed. 10. Pending petition, if any, also stands disposed of.