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2023 DIGILAW 1424 (JHR)

Ashok Medankar v. State of Jharkhand

2023-12-05

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioners, Ms. Amrita Kumari and Ms. Nehala Sharmin, learned counsel for the State and Mr. Mahavir Prasad Sinha, learned counsel for opposite party no.2. 2. In both the petitions, common complaint case as well as orders are under challenge and in view of that, both the petitions are heard together with consent of the parties. 3. In both the petitions, the prayer is made for quashing the entire criminal proceeding in Complaint Case P.C.R. Case No.881/2016 including the order taking cognizance dated 05.06.2017, pending in the Court of the learned Judicial Magistrate, 1st Class, Deoghar. 4. On 10.07.2017, these matters were taken up and notices were issued upon opposite party no.2 and on that day, the entire criminal proceeding was stayed and from time to time, the said order was extended. In the meantime, opposite party no.2 filed Criminal Revision No.73 of 2017, which was allowed vide order dated 26.05.2022 and remanded the matter to the learned Court to pass a fresh order and pursuant to that, further summoning order dated 08.08.2022 has been passed. In view of these developments, I.A. No.9979 of 2022 was filed for amendment in the prayer portion, which was allowed vide order dated 02.11.2022 and in view of that, the revisional order dated 26.05.2022 and summoning order dated 08.08.2022 are also under challenge in these petitions. 5. The complaint case was filed alleging therein that the complainant-Sangita Devi decided to establish her own business with the help of her husband-Sri Manoj Kumar. She claimed to have contacted with the officials of Piaggio Vehicles Private Limited alongwith her husband. Thereafter dealership of Deoghar was granted by the company to the partnership firm-M/s Durga Motors, Deoghar in which the complainant and her husband are partners. It was further alleged that the company never arrived at any written agreement with the complainant or her husband or the partnership firm despite repeated requests. It was also alleged that pursuant to grant of dealership, the business of the company shot up due to efforts of the complainant and her husband. It was further alleged that seeing the prosperity of the business, the accused nos. 1 and 2 have demanded money, which was refused by the complainant and her husband. It was also alleged that pursuant to grant of dealership, the business of the company shot up due to efforts of the complainant and her husband. It was further alleged that seeing the prosperity of the business, the accused nos. 1 and 2 have demanded money, which was refused by the complainant and her husband. Then all the accused persons became hostile to the complainant and her firm and without taking her consent, another dealership for Deoghar was given to one Shri Krishna Motors, Deoghar with a view to cause wrongful loss to the complainant and her firm. It was also alleged that the complainant gave Rs.2 Lakh to the accused no.1, which according to her would be shared amongst others. It was further alleged that the complainant received complaints from customers of the other dealer-Shri Krishna Motors and found that the proprietor of Shri Krishna Motors (accused no.8-Niraj Kumar Gupta) was adopting unfair and illegal trade practice in connivance with other accused and selling the vehicles at the rate higher than the actual rate. Thus, according to the complainant wrongful loss had been caused. It was also alleged that the other accused nos. 1 to 7 did not take action against the accused no.8 and upon complaint been made against him. It was further alleged that even the documents and materials collected by the complainant against the accused no.8 upon being supplied to other accused persons for taking stern action were not acted upon. Rather accused no.1 became infuriated and abused and misbehaved with her. Threats were extended of falsely implicating the complainant and her husband in a case of severe nature. The dealership of the complainant was terminated by letter dated 17.11.2015 with the return of credit balance alongwith the security deposit. The company in turn demanded C-Form of the sales tax but no pain was taken to return the old stock including the spare parts and vehicles. The company also did not clear claims and incentives. It was also alleged that the firm-M/s Durga Motors had outstanding of approximately Rs.4.5 Crore in the market which was extended on the accused's instructions the request for cooperation in realization of the dues remained unheard. Due to sudden termination of dealership, the complainant's business collapsed. It was further alleged that the accused nos. It was also alleged that the firm-M/s Durga Motors had outstanding of approximately Rs.4.5 Crore in the market which was extended on the accused's instructions the request for cooperation in realization of the dues remained unheard. Due to sudden termination of dealership, the complainant's business collapsed. It was further alleged that the accused nos. 1 to 7 had forged agreement of dealership which was never executed in between the complainant and the company. The allegation of retaining Rs.5 Lakhs (approx) of the complainant by the accused nos. 1 to 7 was also leveled. It was also alleged that on 13.08.2016, a pleader notice was sent by the complainant to the company in reply whereof the company denied all the allegations by letter dated 26.08.2016. It was alleged that the accused nos. 1 and 2 induced the complainant to deliver Rs.38 Lakhs for delivery of vehicles which was allegedly sent by the complainant and her husband upon which the accused no.2 allegedly committed to deliver the vehicle within 3 days, but instead of the same a firm of distributorship of spare parts was sent and the amount sent by the complainant was kept in possession of the company for a substantial period which not only caused monetary loss but also jolt to the reputation of the firm. Admittedly, the amount of Rs.38 Lakhs was returned to the complainant. It was claimed that the complainant and her husband went to Deoghar (Town) P.S. for reporting the matter, but the police ultimately suggested them to file complaint before the Magistrate. With the aforesaid allegations, the complainant filed the complaint case alleging offences punishable under Sections 384, 406, 467, 468, 469, 471, 504, 120B read with Section 34 of the Indian Penal Code. 6. Mr. Rai, learned counsel for the petitioners submits that the petitioners filed these petition in July, 2017 challenging the entire criminal proceedings. He submits that on 10.07.2017, stay order was passed by the High Court and the stay has been extended vide order dated 14.11.2019, 10.08.2021, 16.11.2021, 07.09.2022, 02.11.2022, 20.01.2023, 21.09.2023 and 16.10.2023. He submits that opposite party no.2 has filed Criminal Revision No.73 of 2017 challenging the same cognizance order before the learned Sessions Judge, Deoghar on 04.07.2017, wherein, the opposite party no.2 has suppressed the fact that the entire criminal proceeding itself was got stayed by this Court. He submits that opposite party no.2 has filed Criminal Revision No.73 of 2017 challenging the same cognizance order before the learned Sessions Judge, Deoghar on 04.07.2017, wherein, the opposite party no.2 has suppressed the fact that the entire criminal proceeding itself was got stayed by this Court. He submits that opposite party no.2 has appeared through filing Vakalatnama on 21.08.2017 in Cr.M.P. No.1514 of 2017 and the stay was extended by this Court on 14.11.2019. He further submits that the counsel for opposite party no.2 has never informed the learned Sessions Judge about the stay order passed by this Court and went up to press the said revision petition. He also submits that in presence of opposite party no.2, the stay was extended vide order dated 16.11.2021, however, on 17.11.2021, the matter was argued before the learned Sessions Judge by the counsel for opposite party no.2. He submits that notice has not been served upon the petitioners in the said criminal revision and without hearing the petitioners, the order dated 26.05.2022 was passed by the learned Revisional Court setting aside the order taking cognizance dated 05.06.2017 and remanded the matter to the learned Trial Court to pass a fresh order and fresh summoning order was passed on 08.08.2022 was taken on 08.08.2022 adding Sections 384 of the Indian Penal Code. He further submits that the learned Revisional Court has called the L.C.R. and after receiving the L.C.R., the said revision petition was decided ignoring the stay granted by this Court. 7. Mr. Rai, learned counsel for the petitioners further submits that the petitioners are officers of M/s Piaggio Vehicle Private Limited. He submits that there was no written agreement and there was oral agreement of dealership of the vehicle of the said company between the company and complainant. Later on it was alleged that the agreement was not followed and one Krishna Motors was provided the dealership without consent of the complainant. He further submits that the said dealer has also been made an accused in the present complaint case. He also submits that the complaint case is a well drafted and it has been tried to make out ingredient of relevant sections to make out the case. He further submits that if any case is there, that can be of civil dispute only, whereas, criminal colour has been provided. He also submits that the complaint case is a well drafted and it has been tried to make out ingredient of relevant sections to make out the case. He further submits that if any case is there, that can be of civil dispute only, whereas, criminal colour has been provided. He also submits that even the company is not made an accused, however, the persons who are posted at Pune, Kolkata and Patna, they have been made accused in the present complaint case. He submits that role of these petitioners are not disclosed in the complaint petition. He further submits that in the complaint itself, there is admission of receiving the refund amount of Rs.38 Lakhs by opposite party no.2. To buttress this arguments, he relied upon paragraph 15 of the judgment passed by the Hon'ble Supreme Court in the case of Haji Iqbal @ Bala through S.P.O.A. v. State of U.P. and others , reported in 2023 SCC OnLine SC 946 , which is quoted hereinbelow: “15. At this stage, we would like to observe something important. Whenever an accused comes before the invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.” Relying on the said judgment, he submits that if the allegations are being made by a legal person, the drafting are such that the ingredient should be there to take cognizance. He submits that maliciously the present complaint case has been filed against the officers of the company and in view of that, this Court may read the things in between the line. 8. Mr. Rai, learned counsel for the petitioners on the point of nature of civil suit converted into criminal case, has relied upon paragraphs 26, 27 and 31 of the judgment passed by the Hon'ble Supreme Court in the case of Anand Kumar Mohatta and another v. State (NCT of Delhi), Department of Home and another , reported in (2019) 11 SCC 706 , which are quoted hereinbelow: “26. In Indian Oil Corpn. v. NEPC (India) Ltd. [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , this Court observed as follows : (SCC p. 749, para 13) “13. In Indian Oil Corpn. v. NEPC (India) Ltd. [Indian Oil Corpn. v. NEPC (India) Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , this Court observed as follows : (SCC p. 749, para 13) “13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.” The Court noticed a growing trend in business circles to convert purely civil dispute into criminal cases. 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. 31. We find that the prosecution is mala fide, untenable and solely intended to harass the appellants. We are fortified in view of the respondent not having made any attempt to recover the deposit of rupees one crore through a civil action.” 9. Mr. Rai, learned counsel for the petitioners further submits that in the present complaint case, the officers of the company have been made accused and there is no allegation against them, even they are not signatory of the company. To buttress this argument, he relied upon paragraph 16 of the judgment passed by the Hon'ble Supreme Court in the case of Sharon Michael and others v. State of Tamilnadu and another , reported in (2009) 3 SCC 375 , which is quoted hereinbelow: “16. The first information report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented. Allegations have been made against the appellants in relation to execution of the contract. No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant Company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the Company.” Relying on this judgment, Mr. Rai learned counsel for the petitioners submits that opposite party no.2 in taking the order from the learned Revisional Court by suppressing the order of this Court itself suggests that how opposite party no.2 is camouflaging the matter. 10. Rai learned counsel for the petitioners submits that opposite party no.2 in taking the order from the learned Revisional Court by suppressing the order of this Court itself suggests that how opposite party no.2 is camouflaging the matter. 10. On the basis of the above arguments, he submits that the entire criminal proceeding is fit to be interfered with by this Court. 11. Mr. Mahavir Prasad Sinha, learned counsel for opposite party no.2 submits that he was not knowing about the stay and extension of stay order granted by this Court. He submits that opposite party no.2 was having knowledge of stay and he is representing opposite party no.2 at later stage and earlier another counsel was appearing on behalf of opposite party no.2, however, he justified the orders passed by the learned Revisional Court as well as the learned Trial Court. He submits that criminality is there and in view of that, criminal case and civil case both can go simultaneously. On these grounds, he submits that this Court may not interfere with these petitions, at this stage. 12. Ms. Amrita Kumari and Ms. Nehala Sharmin, learned counsel for the State jointly submit that the learned Court has taken cognizance on the complaint petition filed by opposite party no.2, however, they fairly submit that the conduct of the opposite party no.2 is very serious as she has concealed the stay order granted by this Court and obtained order from the learned Revisional Court. They submit that this is required to be dealt with by this Court. 13. Coming to the contents of the complaint in view of the above submissions of the learned counsel for the parties, the Court finds that in paragraph 2 of the complaint, it has been stated that oral agreement of dealership was assumed with the company namely M/s Piaggio Vehicles Private Limited and in the same paragraph, it has been admitted that no written agreement with regard to dealership was there between the parties. The allegations are made that one Krishna Motors was provided the dealership and it was not doing the business fairly. The vehicles were being sold on higher price. In view of this, it is crystal clear that the complainant has filed the complaint case against the officers of the company maliciously. The allegations are made that one Krishna Motors was provided the dealership and it was not doing the business fairly. The vehicles were being sold on higher price. In view of this, it is crystal clear that the complainant has filed the complaint case against the officers of the company maliciously. The company has not appointed her to make a market survey with regard to the vehicle in question in Deoghar Town and she has got no business to concern of the company with the consumers and further consumers are not aggrieved and they have not filed any complaint case against the company as well as officers of the company. In paragraph 8 of the complaint petition itself, it has been admitted that sum of Rs.38 Lakhs was returned to the complainant. Had it would be the case of cheating from very beginning, the said gesture shown by the company cannot be there and when intention of deception from very beginning was not there, the case of cheating is not made out. 14. It appears that the complaint petition is drafted by an Advocate and every efforts have been taken therein to allege the things in such a way that the ingredients of relevant sections of the Indian Penal Code may be there and if such a situation is there, the responsibility on the High Court is much larger and in view of that, the Court is required to read the things in between the line, as has been held by the Hon'ble Supreme Court in the case of Haji Iqbal (supra). 15. Further, the officers of the company who are stationed at Pune, Kolkata and Patna, they have been made accused. The allegations are that the agreement was made with the company and the company has not been made an accused. In view of that, these petitioners are not aware about any agreement with the company and opposite party no.2. In such a situation, the case of the petitioners is covered in view of the judgment passed by the Hon'ble Supreme Court in the case of Sharon Michael(supra). 16. Time and again, in a case of civil nature to put pressure through criminal prosecution have been deprecated by the Courts. It appears that this is happened on legal advise to short cut the proceeding of civil cases. 16. Time and again, in a case of civil nature to put pressure through criminal prosecution have been deprecated by the Courts. It appears that this is happened on legal advise to short cut the proceeding of civil cases. In view of that, the case of the petitioners is further covered in view of the judgment passed by the Hon'ble Supreme Court in the case of Anand Kumar Mohatta (supra). 17. How opposite party no.2 has maneuvered over the things, has been discussed hereinabove in the arguments of Mr. Rai, learned counsel for the petitioners in paragraph 6. It is deprecable that the counsel, who has conducted the matter before the learned Court, was knowing about the stay granted by this Court and in spite of that, he has obtained the order from the learned Revisional Court. Further, in the revision the petitioners have not been served and in absence of them, the learned Revisional Court has passed the order dated 26.05.2022, which is against the mandate of law, as has been held by the Hon'ble Supreme Court in the case of Subhash Sahebrao Deshmukh v. Satish Atmaram Talekar , reported in (2020) 6 SCC 625 . 18. Further, the L.C.R. was called by the learned Revisional Court and in the L.C.R., the order of this Court must would have been there. It appears that ignoring that fact, the learned Revisional Court has passed that order and on remand, fresh summoning order was passed vide order dated 08.08.2022 and in that order, Section 384 of the Indian Penal Code has been added and nothing else has been discussed. The order passed by the learned Revisional Court brought on record in the amended petition fortifies the argument of Mr. Rai, learned counsel for the petitioners. The conduct of opposite party no.2 is deprecated. 19. In view of the above facts, reasons and analysis, the Court comes to a conclusion that this is a case which has been filed maliciously against the officers of the company for a case, if any, civil in nature that too by way of maneuvering the case in spite of stay granted by this Court. 19. In view of the above facts, reasons and analysis, the Court comes to a conclusion that this is a case which has been filed maliciously against the officers of the company for a case, if any, civil in nature that too by way of maneuvering the case in spite of stay granted by this Court. Accordingly, so far as the present petitioners are concerned, the entire criminal proceeding in Complaint Case P.C.R. Case No.881/2016 including the order taking cognizance dated 05.06.2017 and order dated 08.08.2022, pending in the Court of the learned Judicial Magistrate, 1st Class, Deoghar are quashed. 20. These petitions are, therefore, allowed and disposed of.