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2023 DIGILAW 1412 (JHR)

Pramod Kumar Singh v. State of Jharkhand

2023-12-01

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard learned counsel for the petitioners and learned counsel for opposite party no. 2. Nobody has appeared on behalf of the State. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 06.08.2015 arising out of Complaint Case No. 616/2014, pending in the Court of the learned S.D.J.M., Koderma. 3. The complaint case was filed alleging therein the complainant is a small contractor and runs a firm in the name of Ma-Shakti Enterprises with a partner namely Vikas Burnwal. On 24.10.2013, the accused persons visited the complainant at Jhumri Tilaiya and talks about carrying out of outsourcing work through him at CCL, Bokaro. It was further alleged that the accused Pramod Kumar Singh runs a firm in the name of M/s Dhillon Transport Company and takes the contract works with the help of small contractors, executes the work, this is what they told to the complainant and his partner. It was also alleged that an agreement was executed on 25.10.2013 between the complainant, his partner and the accused persons, wherein, it was stated that they have secured a contract work of outsourcing of OBR of 9.78 Lac cum re-handling of OB 2.85 Lac tone in two years and for which the complainant shall work as sub-contractor and shall deploy heavy and light equipment as per requirement from their end. In the agreement it was stipulated that as per agreement between the accused persons and CCL, the complainant shall deploy all manpower and machines and the accused shall be entitled for 10% commission from the bills of CCL. It was alleged that with the intention to cheat, the accused had said that Rs.54.77 paise shall be charged for diesel, whereas, the rate of Rs.53.73 paise was finalized between CCL and the accused. As per the agreement, the complainant on 11.12.2013 had commenced the work and at the time of commencement of work had asked the accused about the work order given by CCL, but was told that the same has not been issued and the agreement executed between them shall be submitted before the CCL, but in conspiracy the same was not submitted to CCL at the time of allotment of work order. The complainant came to know about this fact later on and when he asked the accused on 19.03.2014, then they threatened not to work and took away all papers. It was also alleged that the complainant has invested around Rs.42 Lacs, whereas, as advance the accused had paid Rs.8,50,000/-only and also not paid for machines and men deployed and a dozer is still under their custody and thus the accused have cheated, defrauded and committed criminal breach of trust. On 25.06.2014, all the three accused persons came to Jhumri Telaiya and said that if he asked for money for the work done and for returning the dozer then he has to face dire consequences. The complainant and his partner on 17.06.2014 sent a legal notice for payment of Rs.33,50,000/-and for returning the dozer, but the accused have refused to give and return the same. 4. Mr. Jitendra Shankar Singh, learned counsel appearing for the petitioners submits that petitioner no. 1 is one of the Director of M/s Aditya Dhanraj Enterprises Pvt. Ltd., a private Ltd. Company, petitioner no. 2 is a businessman and petitioner no. 3 is one of the partner in M/s Dhillon Transport and Company, a registered partnership firm. He submits that for the purpose of participating in NIT offered by CCL, M/s Aditya Dhanraj Enterprises Pvt. Ltd., M/s Manikraj Pvt. Ltd. And M/s Dhillon Transport and Company had formed a joint venture in the name of M/s Dhillon Transport and Company. He further submits that the CCL had invited bid documents for the contract under the work outsourcing of OBR of 9.78 Lac cum Rehandling of OB 2.95 Lac cum and extraction of Coal 1.720 LTC in two years. He submits that after award of contract, an agreement on 25.10.2013 was executed between M/s Dhillon Transport and Company and M/s Shakti Enterprises whereunder the work was subject to M/s Shakti Enterprises for performance and execution of work with other terms and conditions therein. He submits that in view of that, opposite party no. 2 is sub-contractor of M/s Dhillon Transport and Company. He submits that opposite party no. 2 has not completed the work and in view of that, the said agreement was cancelled by way of Annexure-3, which is dated 29.04.2014. He submits that in view of that, opposite party no. 2 is sub-contractor of M/s Dhillon Transport and Company. He submits that opposite party no. 2 has not completed the work and in view of that, the said agreement was cancelled by way of Annexure-3, which is dated 29.04.2014. He further submits that in view of Clause-2 of cancellation of agreement, it was agreed to cancel the aforesaid agreement on terms and conditions and as per clause-3, there is clearance of financial statement by both the parties and, if any dues remain then second party shall pay to the first party and as per clause-6, the second party will be liable for any criminal and civil liabilities with respect to the aforesaid work. He submits that one of the partner of M/s Shakti Enterprises has stated on stamp, contained in Annexure-6 that nothing due is there. He submits that even in the complaint petition itself, it is admitted that sum of Rs.8,50,000/-was paid and the case is made that Rs.33 Lacks and odd has not been paid by M/s Dhillon Transport and Company. 5. Mr. Sanjay Kumar Pandey, learned counsel for opposite party no. 2 submits that the cancellation agreement was not signed by both the partners. He submits that of the case is arising out of an agreement that does not mean that criminality is not made out. He submits that the entire amount is not paid and rightly the case has been filed. 6. In the complaint petition itself, it is admitted that the agreement was there between the parties. It is admitted that sum of Rs.8,50,000/-was paid and the allegations are made that rest of the amount out of Rs.42 Lacs has not been paid. Thus from the averment made in the complaint petition itself, essential ingredient of cheating from very inception is absent. 7. Further, the agreement contained in Annexure-2 suggests that the terms and conditions was between M/s Dhillon Transport and Co. and M/s Shakti Enterprises. The complainant is one of the partner of M/s Shakti Enterprises. The said agreement has already been cancelled and in view of Clauses-2 and 3, the obligations are made upon opposite party no. 2. Annexure-6 is the document on stamp paper issued by one of the partner of M/s Shakti Enterprises saying therein that nothing dues remain with M/s Dhillon Transport and Company. 8. The said agreement has already been cancelled and in view of Clauses-2 and 3, the obligations are made upon opposite party no. 2. Annexure-6 is the document on stamp paper issued by one of the partner of M/s Shakti Enterprises saying therein that nothing dues remain with M/s Dhillon Transport and Company. 8. It appears that for breach of contract, if any, the present complaint case has been filed. If such a situation is there, the case of the petitioners is covered in view of the judgment passed by the Hon'ble Supreme Court in the case of Sarabjit Kaur v. State of Punjab and Another, (2023) 5 SCC 360 , wherein, it has been held that breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction. Merely on the allegation of failure to keep up promise, it will not been enough to initiate criminal proceedings. 9. The facts which have been discussed hereinabove clearly suggest that entire idea seems to convert a civil dispute into criminal and put pressure on the petitioners for return of the alleged amount. 10. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 06.08.2015 arising out of Complaint Case No. 616/2014, pending in the Court of the learned S.D.J.M., Koderma are quashed. 11. It is made clear that if any civil proceeding is pending, that will be decided in accordance with law without prejudiced to this order. 12. Accordingly, this petition is allowed and disposed of.