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2023 DIGILAW 1386 (JHR)

Kissan Singh @ Kishan Singh v. State of Jharkhand

2023-11-28

SANJAY KUMAR DWIVEDI

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JUDGMENT : Heard Mr. Anil Kumar Sinha, the learned counsel assisted by Mrs. Nanda Kumari, the learned vice counsel appearing on behalf of the petitioner, Mr. Pankaj Kumar Mishra, the learned counsel for the respondent State and Mr. Anurag Kashyap, the learned counsel appearing on behalf of the O.P.No.2. 2. This petition has been filed for quashing of the entire criminal proceeding as well as the order of cognizance dated 28.09.2015 passed by learned Judicial Magistrate, 1st Class, Jamshedpur, in C/1-4070 of 2014, pending in the court of learned S.D.J.M., Jamshedpur. 3. The case has been filed alleging therein that the opposite party no. 2 filed a complaint petition on 07.02.2014 in the court of Chief Judicial Magistrate Jamshedpur, vide complaint case no. 427 of 2014 and the same has been sent to the Officer Incharge of Golmuri Police Station to register the First Information Report under section 156 (3) of the Code of Criminal Procedure upon which the F.I.R. has been instituted as Golmuri P.S. case no. 51 of 2014 on section 406 & 420 of the Indian Penal Code 02.03.2014 against the petitioner. It is alleged in the complaint petition that the running a firm under the name and style of and complainant Madan Lal Agarwal Civil Engineers Contractors having its office at Shop no. 13 Golmuri Bazaar, Jamshedpur and the accused being Promoter and Developer of M/s. Om Sai Promoter having its office at Enclave, ME School Road, Mahavir Jugsalai, Jamshedpur to which the complainant agreed and submitted quotation. After approval of quotation of the complainant, the complainant started dismantling the old structure over the proposed constructed area and invested Rs. 56, 53,305.48 and the accused has paid Rs. 17 Lakhs to the complainant till date and Rs. 39,53,305.48 is due against the accused while complainant entrusted the aforesaid amount at the proposed building on the assurance that the accused will pay it to the complainant. The complainant borrowed the material like rod, bricks, sand and other building material from different shops and persons and invested the same in the said multi storied building which is still under construction as Mahavir Enclave. It was alleged that the complainant on so many occasions requested the accused to pay the same but he on the pretext of other grounds took time and lastly on 25.01.2015 refused to pay the same. It was alleged that the complainant on so many occasions requested the accused to pay the same but he on the pretext of other grounds took time and lastly on 25.01.2015 refused to pay the same. For this the complainant sent a legal notice to the accused 27.01.2014 through registered post but the accused has neither paid the amount nor gave any reply. Hence, the instant case. 4. The learned counsel appearing for the petitioner submits that the complaint case being Complaint Case No.427 of 2014 was sent for registration of the FIR under section 156(3) Cr.P.C and pursuant to that the learned court has been pleased to transfer the same under section 156 (3) Cr.P.C for investigation. He submits that the police has investigated the matter and submitted final form saying that the case is civil in nature. He submits that on protest petition, the learned court has been pleased to take cognizance. By way of referring the complaint petition, he submits that in the complaint petition itself there is admission of receiving Rs.17 lacs wherein the allegation is made that total amount has not been paid. He submits that the O.P.No.2 is sub-contractor appointed by the petitioner and he submits that in the complaint itself it has been disclosed that the said apartment is being constructed. He further submits that if any case is made out that is civil in nature and in view of that the learned court on protest petition has taken cognizance which is bad in law. The learned counsel for the petitioner has relied in the case of Mr. Robert John D’Souza and Others v. Mr. Stephen v. Gomes and Another, 2015 (4) East Cr. Cases 16 (SC). 5. Mr. Anurag Kashyap, the learned counsel for the O.P.No.2 submits that the learned court has rightly taken cognizance as the police has not investigated the matter in its right perspective and on protest petition, the learned court has found prima facie case. He submits that if a criminality is made out, the court can take cognizance and to buttress his argument, he relied in the case of Vijayandar Kumar and Another v. State of Rajasthan, (2014) 3 SCC 369. Relying on this judgment, he submits that if the criminality is made out, civil as well as criminal case can go simultaneously. 6. He submits that if a criminality is made out, the court can take cognizance and to buttress his argument, he relied in the case of Vijayandar Kumar and Another v. State of Rajasthan, (2014) 3 SCC 369. Relying on this judgment, he submits that if the criminality is made out, civil as well as criminal case can go simultaneously. 6. The learned counsel for the respondent State submits that the learned court has taken cognizance on the protest petition filed by the O.P.No.2. 7. It is admitted that earlier the complainant filed the complaint case being Complaint Case No.427 of 2017 which was sent under section 156(3) Cr.P.C for registration and it was investigated by the police and the police has found the case civil in nature and on protest petition the learned court has taken cognizance. Further in the protest petition itself it has been admitted that a sum of Rs.17 lacs has already been paid by the petitioner to the complainant out of Rs.56,53,605=58. Thus, it is crystal clear that from the very beginning the intention of cheating under section 415 IPC is not there. Further it is an admitted fact that the O.P.No.2 is sub-contractor appointed by the petitioner and if such a situation is there, the case of the petitioner is fully covered in view of the judgment rendered in the case of U.Dhar v. State of Jharkhand, (2003) 2 SCC 219 . Paragraph nos. 5, 6 and 8 of the said judgment are quoted below: “5. In our view, what is relevant is that the contract between TCPL and the complainant is an independent contract regarding execution of certain works and even assuming the case of the complainant to be correct, at best it is a matter of recovery of money on account of failure of TCPL to pay the amount said to be due under the contract. The complainant has alleged that TCPL has already received the money from SAIL for the work in question and it has misappropriated the same for its own use instead of paying it to the complainant and it is for this reason that the offences are alleged under Sections 403, 406 and 420 etc. 6. The courts below have overlooked the fact that the contract between Bokaro Steel (a unit of SAIL) and TCPL is a separate and independent contract. 6. The courts below have overlooked the fact that the contract between Bokaro Steel (a unit of SAIL) and TCPL is a separate and independent contract. The contract between the complainant and TCPL is altogether a different contract. The contractual obligations under both the contracts are separate and independent of each other. The rights and obligations of the parties i.e. the complainant and TCPL are to be governed by the contract between them for which the contract between TCPL and Bokaro Steel (SAIL) has no relevance. Therefore, even if Bokaro Steel has made the payment to TCPL under its contract with the latter, it will not give rise to plea of misappropriation of money because that money is not money or movable property of the complainant. 8. Thus, admittedly, the two contracts are independent of each other and payment under one has no relevance qua the other. It cannot be said that there is any dishonest intention on the part of the appellants nor can it be said that TCPL or the appellants have misappropriated or converted the movable property of the complainant to their own use. Since the basic ingredients of the relevant section in the Penal Code, 1860 are not satisfied, the order taking cognizance of the offence as well as the issue of summons to the appellants is wholly uncalled for. Such an order brings about serious repercussions. So far as the appellants are concerned, when no case is made out for the alleged offences even as per the complaint filed by the complainant, there is no reason to permit the appellants to be subjected to trial for the alleged offences. Hence, the appeal is allowed. The impugned orders of the High Court as well as of the Chief Judicial Magistrate are hereby ordered to be quashed.” 8. There is no doubt that the learned court can take cognizance on the protest petition even on for differing with the charge sheet, there must be some cogent reason for the same. The learned court is required to give the reasons for differing with the charge sheet and on protest petition the learned court has taken cognizance and what are the prima facie materials are required to be disclosed in the order taking cognizance. The learned court is required to give the reasons for differing with the charge sheet and on protest petition the learned court has taken cognizance and what are the prima facie materials are required to be disclosed in the order taking cognizance. In the case in hand only the case of the complainant is narrated and what has come in the enquiry witnesses and solemn affirmation has not been disclosed in the order taking cognizance and in view of that for the offence in which the petitioner has been summoned has not made out from the complaint and the materials on record and in view of that, the implication of the petitioner in criminal case is nothing but to abuse of process of law. There is no doubt that criminal case and civil case both can go simultaneously if the criminality is made out. In the case relied by Mr. Anurag Kashyap, the learned counsel for the O.P.No.2 in the case of Vijendra Kumar and Another v. State of Rajasthan (supra) it was found by the Hon’ble Supreme Court that the accused had full knowledge even before issuing cheque that the same shall not be honoured and they had such dishonest intention from the very beginning and in view of that the said judgment has been passed and the facts of the present case are different as has been discussed hereinabove. The O.P.No.2 has already received a sum of Rs.17 lacs and he was sub-contractor and in view of that the case of the petitioner is fully covered in view of the judgment rendered in the case of U.Dhar v. State of Jharkhand (supra). 9. Accordingly, entire criminal proceeding in C/1-4070 of 2014, including the cognizance order dated 28.09.2015 pending in the court of learned S.D.J.M., Jamshedpur is quashed. 10. This petition is allowed and disposed of.