Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 205 (JHR)

Akhay Kumar Mohanty v. State of Jharkhand

2022-02-21

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners, Ms. Nehala Sharmin, learned A.P.P. for the State and Mr. G.K. Sinha, learned counsel appearing for the O.P. No. 2. 2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. This criminal miscellaneous petition has been filed for quashing of the entire criminal prosecution including the First Information Report, in connection with Jagarnathpur P.S. Case No. 193 of 2017 corresponding to G.R. No. 3046 of 2017, pending in the Court of learned Judicial Magistrate, 1st Class, Ranchi. 4. The O.P. No. 2 filed the complaint alleging therein that the complainant is the business man, he run construction work in the name and style of M/s Anshul Construction. The accused persons are very clever persons. They are very known to the complainant and his family. They have also very well known about the work of the complainant and his firm. The complainant and his firm was allotted a work for road construction in Chakulia Bend Road from Mardabandh chowk to Kanimohli through Jugitopa, Jharia total distance of 5 kms. road. The complainant was constructing the aforesaid road peacefully and honestly. The accused persons known about the aforesaid work of the complainant and with the dishonest, malafide and fraudulent intention approached / induces to the complainant and witness no. 1 at their house in H.E.C. Qr. No. CD-68, Sector-2, Dhurwa, P.S. Jagarnathpur, District-Ranchi to do the work with them. It is further alleged that for the above work the accused persons assured to the complainant and witness no. 1 that they will do their work with fully honesty and dignity and they also assured to invest their money in the aforesaid work. As per the assurance of the accused persons the complainant and witness no. 1 believed their versions and agree to do the work with them. For this the complainant entered into deed of partnership with accused No. 1 on dated 02.03.2015 at the house of complainant, wherein the accused No. 2 was also signed over the aforesaid deed of partnership as a witness. 1 believed their versions and agree to do the work with them. For this the complainant entered into deed of partnership with accused No. 1 on dated 02.03.2015 at the house of complainant, wherein the accused No. 2 was also signed over the aforesaid deed of partnership as a witness. As per the above deed of partnership and assurance of the accused persons the complainant believed their version and started work with them. The complainant also believed the accused persons and hand over the entire work to them. The accused person started all the work like purchase material, transaction of money through cheque and cash operating the bank account etc. After some times the complainant came to know that both the accused persons have misappropriated the huge amount and materials from the aforesaid work and site. Thereafter the complaint along with the witness no. 1 inquire the matter and found that the huge materials have not been used in their site and the same was sold in another place. The accused persons are also given forged fabricated and false bills of materials to the complainant and taken huge amount from the for the same time to time. They have also not given the payment to the labours although the same has been obtained by the accused persons from the complainant. the complainant also came to know that accused persons have taken huge amount from him time to time by giving false statements for miscellaneous expenses. It is further alleged that after the preliminary enquiry the complainant found that accused persons have misappropriate approx Rs.15,00,000/-(Fifteen lakhs), the amount may increase in further inquiry. They have also stolen valuable things like copy of DPR, Master roll, Register, Important documents, signed and unsigned cheques etc. from the office of the complainant. The complainant along with the witness no. 1 inquire the matter then they also found that the accused persons have dishonestly and fraudulently entered into criminal conspiracy submitted the fake forged fabricated and bogus bill for the purchase of material and taken huge money of the same. Although neither they have purchased the material nor they have used the same in the aforesaid work. When the complainant along with witness no. 1 enquired and asked from the accused persons about the aforesaid occurrence, then they plead their guilt and threatened to the complainant and witness no. Although neither they have purchased the material nor they have used the same in the aforesaid work. When the complainant along with witness no. 1 enquired and asked from the accused persons about the aforesaid occurrence, then they plead their guilt and threatened to the complainant and witness no. 1 to implicated them in false case, dire consequences and also threatened to stop the work and snatched aforesaid allotted work of road construction. The complainant asked from the accused persons that why they have not invested any money in the aforesaid work then the accused persons told that they came for make money from his business which has already they have done. They have also stated that they have never intention to do the work with them from beginning. The accused persons conspires and they have manufactured false and forged documents and produce the same before the complainant as genuine for the purpose of wrongful gain knowing very well that the said documents are forged one. It is also alleged that the accused persons have entered into a criminal conspiracy dishonestly and fraudulently made forged documents purports to be valuable sureties for the purpose of wrongly gain and the same had been fraudulently and dishonestly produce before the complainant believing that the same is forged documents. The accused persons have also stolen valuable things like valuable documents copy of DPR, Master Roll, Register, Signed and unsigned Cheques etc. from the office of the complainant. the accused persons have committed offence punishable under Sections 379, 406, 420, 467, 468, 471, 120-B and 34 of the Indian Penal Code and liable to be punished for the same. The complainant went to the concerned police station to lodge the FIR against the accused persons, but the same has not been lodged, thereafter he went to the S.S.P., Ranchi for lodging the FIR against the accused persons, but as yet the FIR was not lodged. Thereafter the complainant has filed the complaint before the concerned Court. 5. By way of referring several paragraphs of the complaint petition, Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that no case under those sections of I.P.C. are made out and in spite of that the FIR has been registered and sent under Section 156(3) Cr.P.C. by the learned Magistrate. 5. By way of referring several paragraphs of the complaint petition, Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that no case under those sections of I.P.C. are made out and in spite of that the FIR has been registered and sent under Section 156(3) Cr.P.C. by the learned Magistrate. He submits that earlier a cheque was issued by the O.P. No. 2, which was bounced, for which, the petitioners have lodged a complaint Case No. 120 of 2017 and in retaliation, this case has been filed. He further submits that the present case is purely civil in nature and for that instituting an FIR is an abuse of the process of the Court. 6. Mr. G.K. Sinha, learned counsel appearing for the O.P. No. 2 submits that the allegations are there of stealing the documents, like DPR, Master Roll, Register, Signed and unsigned Cheques etc. from the office of the O.P. No. 2. He submits that the petitioner has approached the concerned police station as well as S.S.P., Ranchi for lodging the FIR, which has been disclosed in para-15 of the complaint, which was filed on affidavit. 7. The court has perused the complaint petition. From the statements made in the complaint petition, it transpires that there is allegation of misappropriation of huge amount and there is allegation of submitting the forged and fabricated bills of materials submitted to the complainant by the petitioners. The learned Magistrate after looking into the entire complaint has sent the matter to the police under Section 156(3) of the Cr.P.C. and the investigation in the case is still going on and in this petition only the FIR is under challenge. 8. If the ingredients of criminal and civil are disclosed in the complaint, both the proceedings can proceed simultaneously. Reference may be made to the case of M/s Medchl Chemicals & Pharma P. Ltd. Versus M/s. Biological E. Ltd. & Ors., reported in (2000) 3 SCC 269 , wherein the Hon’ble Supreme Court in para-held as follows:- “14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalingappa Konjalgi lend support to the above statement of law: “(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.” 15. In the matter under consideration, if we try to analyse the guidelines as specified in Shivalingappa case can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused? In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither do we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this earliest stage as noticed above: whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial and the observations on this score in the case of Nagpur Steel & Alloys (P) Ltd. v. P. Radhakrishna ought to be noticed. In para 3 of the Report this Court observed: “3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.” 9. In view of the above and considering the materials on record, particularly the investigation is going on and only the FIR is under challenge in this petition, no case of interference is made out. 10. Accordingly, this petition is dismissed at this stage.