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2023 DIGILAW 594 (JHR)

Nandlal Yadav v. State of Jharkhand

2023-05-01

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. P.P.N. Roy, learned senior counsel for the petitioner, Mr. Prabhu Dayal Agrawal, learned counsel for the State and Mr. A.K. Kashyap, learned senior counsel for the O.P. No. 2. 2. I.A. No. 7566 of 2019 has been filed for amendment in the prayer portion. 3. It has been submitted that chargesheet has been submitted vide chargesheet no. 99/13 dated 30.06.2013 against the petitioner and others. 4. In view of above facts, prayer made in I.A., is allowed. 5. I.A. No. 7566 of 2019 stands allowed. Let this I.A. be treated as part of main petition. 6. I.A. No. 7567 of 2019 has been filed for extension of interim order dated 02.09.2013. 7. Since, this matter is being heard on merit, I.A. No. 7567 of 2019 has become infructuous. Accordingly, I.A. No. 7567 of 2019 is dismissed as infructuous. 8. This petition has been filed for quashing the First Information Report in connection with Latehar P.S. Case No. 101 of 2012 dated 05.08.2012, corresponding to G.R. Case No. 453 of 2012, pending in the Court of learned Chief Judicial Magistrate, Latehar. Chargesheet dated 30.06.2013 is also under challenge. 9. The FIR being Latehar Police Station Case No.101 of 2012 arises out of a complaint case being Complaint Case No.109 of 2012, has instituted alleging therein that the complainant/informant was 50% partner of M/s. N.S. Construction with accused No.1, another partner of same ratio on the basis of a partnership deed made on 23rd day of June, 2006 and duly signed by the parties and affidavited on 04.07.2006 before Public Notary, Daltonganj for contract business from State Government, Central Government Department, B.S.N.L., Railway, Reliance Group of India, Essar Group of India Company Ltd. Company Corporation etc. while the head office of this partnership work shall be at Village & P.O. Matlong, P.S. Manika, District Latehar, at the house of accused No.1. It is alleged that in terms of partnership deed Bank Account (Current) No.30644512174 was opened in State Bank of India, Latehar in the name of the firm M/s. N.S. Construction and accused No.1 would operate the Bank account. It is alleged that in terms of partnership deed Bank Account (Current) No.30644512174 was opened in State Bank of India, Latehar in the name of the firm M/s. N.S. Construction and accused No.1 would operate the Bank account. It is alleged that after agreement with M/s. N.S. Construction, duly signed by the complainant on behalf of the firm and Executive Engineer, R.W.D. Works Division-cumProject Officer, J.S.R., R.D.W., Latehar, contract work started under the aforesaid Executive Engineer agreement dated 06.10.2010 vide letter No.953 between the said firm and Executive Engineer. It is alleged that the copy of the said deed of agreement in the name of the firm and the bank account in the State Bank of India, Latehar Branch was handed over to the Executive Engineer for the purpose of smooth functioning of contract work. It is stated by the complainant that he has so far invested around Rs.10 lakh in the contract work. It is alleged that inspite of several turnover and payment on aforesaid current account of the firm by the department concerned, the accused No.1 did not make payment of single paise to the complainant nor any account was given by accused No.1 to the complainant till date. It is alleged that keeping in view the dishonest intention by accused No.1, Nandlal Yadav, who withdrew the entire amount from State Bank of India, Latehar Branch and not accounting for the same with the complainant, he filed a petition before State Bank of India, Latehar Branch, requesting to stop payment from the firm’s aforesaid account to accused Nandlal Yadav. It is alleged that the bank authority of State Bank of India, Latehar Branch stopped payment to accused No.1 from the aforesaid account. It is alleged that the complainant through letter dated 05.12.2012 informed and requested the accused No.4 to stop the payment from the current account No.496620110000180 of the aforesaid firm which was received by the accused No.4. It is alleged that the bank authority of State Bank of India, Latehar Branch stopped payment to accused No.1 from the aforesaid account. It is alleged that the complainant through letter dated 05.12.2012 informed and requested the accused No.4 to stop the payment from the current account No.496620110000180 of the aforesaid firm which was received by the accused No.4. It is alleged that the complainant made several written requests including advocate notice dated 29.10.2010, 06.05.2011, 19.11.2011 and 17.02.2012 to accused No.3, the then Executive Engineer, R.W.D. Works Division-cum-Project Officer JSRRDA, Latehar praying therein to withhold the requisition for payment of the amount of the aforesaid firm and if necessary the requisition for payment may be made in the account of the firm made already available with the department, but the accused No.3, being aware of the entire situation and ignoring the several letter of request of the complainant intentionally in connivance with and under criminal conspiracy of accused persons requisitioned for payment by means of and through the process of a forged account No.496620110000180 which was created by accused No.4 under criminal conspiracy with all the accused persons. It is alleged that accused Nandlal Yadav, accused No.1, his brother Kameshwar Yadav, accused No.2, and Executive Engineer, accused No.3 and Bank Manager of Bank of India, Vikash Bhawan Branch, Ranchi accused No.4, entered into criminal conspiracy in order to defraud and cheat the complainant, created a forged account No.496620110000180 of Bank of India, Vikash Bhawan, Ranchi with accused No.4 on 17.12.2011 in the name of M/s. N.S. Construction in which complainant was 50% partner but without his consent, knowledge, signature and other required documents such as ID proof etc. of the complainant ignoring the earlier account of the same Bank itself. The accused No.3 in order to the work and with appropriate the amount issued letter No.2262 dated 19.12.2011 to head Office to change the account No. of the firm from Latehar, State Bank of India account No. 30644512174 to current account No.496620110000180, Bank of India, Vikash Bhawan Branch, Katchhari Road, Ranchi. It is alleged that the accused persons were seen in constant contact amongst each other having several talk and consultation giving rise to aforesaid forged Bank account. It is alleged that the accused persons were seen in constant contact amongst each other having several talk and consultation giving rise to aforesaid forged Bank account. It is alleged that in course of time several construction work was done by the aforesaid firm and a huge amount of 28,00,000/- (Twenty Eight Lakh) was ready to be transferred and was transferred on 20.12.2011, Rs.10,77,800/- and Rs.10,56,370/- in the aforesaid forged account and the amount was debited and withdrawn on the same day, i.e., on 20.12.2011 amount of Rs.3,00,000/- and Rs.18,00,000/- and on 27.02.2012 in the aforesaid forged account credited amount of Rs.6,71,000/- and the same was debited and withdrawn on 05.03.2012 by accused No.1 of Rs.3,50,000/- and Rs.3,50,000/-. It is alleged that accused No.1 under preplanned conspiracy with accused withdrew the entire amount of Rs.28,00,000/- (Twenty Eight Lakh) from Bank of India, Vikash Bhawan Branch, Ranchi Account No.496620110000180 and all the accused persons misappropriated criminally the amount belonging to the complainant. It is alleged that the complainant, having come to know the malafide criminal intention of the accused persons has already served Advocate Notice to accused No.1 on 07.05.2011. It is alleged that the complainant lawyer received reply of his notice dated 17.02.2012 propose to be on behalf of accused No.1, but, this reply of notice was not signed by the accused No.1, Nandlal Yadav, but was signed by accused No.2, Kameshwar Yadav, the brother of accused No.1, in column of counter signature, this mode of sending notice by way of reply is further evidence of criminal conspiracy and dishonest intention of the accused persons. It is alleged that the accused persons under criminal conspiracy, have cheated the complainant in order to cause wrongful loss to him, whose interest the accused persons were bound to protect, having forged the requisition by accused No.3 in connivance with accused No.4, who created forged account in his Bank and the accused persons used the forged documents as genuine, causing loss of Rs.28,00,000/- (Twenty Eight Lakh) to the complainant and misappropriated the same in their own use and have committed criminal breach of trust. 10. Mr. P.P.N. Roy, learned counsel for the petitioner submits that from perusal of the FIR, no offence whatsoever is made out so far as it relates to the petitioner. He submits that the petitioner - Nandlal Yadav, was the partner of the complainant. 10. Mr. P.P.N. Roy, learned counsel for the petitioner submits that from perusal of the FIR, no offence whatsoever is made out so far as it relates to the petitioner. He submits that the petitioner - Nandlal Yadav, was the partner of the complainant. He submits that the petitioner-Nandlal Yadav has been implicated just because he is the brother of accused Kameshwar Yadav whose case has been quashed in Cr.M.P. No. 994 of 2013. Learned senior counsel further submits that the only allegation against the petitioner is that he connived with the accused Kameshwar Yadav to open a separate bank account in the name of the firm in Bank of India, and he signed the reply to the notice. He submits that accused Basant Kumar Mehta is the Executive Engineer, who granted government contract to the firm. He submits that there is also no allegation of any fraud, which can be said to be criminal in nature so far as petitioner is concerned. Learned senior counsel for the petitioner submits that the grievances and disputes raised by the complainant-opposite party No.2 are absolutely civil in nature and it relates to partnership business. He submits that civil dispute has been given a color of criminal offence by filing complaint case. Learned senior counsel for the petitioner further submits that though it has been alleged that the bank account was forged, but, from the perusal of the FIR, it would be clear that no account was forged, rather the allegation is that a separate bank account was opened in a different bank in the name of the firm without the consent of the opposite party No.2 and the accused operated the account as the income of the firm was credited in the said account. Learned senior counsel for the petitioner thus submits that when no offence is made out from the bare perusal of the FIR, the same needs to be quashed so far as this petitioner is concerned. 11. Mr. A.K. Kashyap, learned senior counsel appearing for the opposite party No.2 and the learned A.P.P. appearing for the State jointly submit that from the allegations made in the FIR, criminal offence is made out, which needs to be investigated. They submit that the petitioner Nandlal Yadav opened a bank account in the name of the firm and for doing so, his brother, accused Kameshwar Yadav has assisted him. They submit that the petitioner Nandlal Yadav opened a bank account in the name of the firm and for doing so, his brother, accused Kameshwar Yadav has assisted him. They submit that so far as accused Basant Kumar Mehta is concerned, he being the Executive Engineer, awarded contract to the firm belonging to the complainant and petitioner Nandlal Yadav knowing fully well that there was dispute between the partners. They submits that the accused persons connived with each other so that the petitioner Nandlal Yadav gets undue advantage and gets benefit. They submits that this itself is a criminal offence, which needs to be investigated. They submit that chargesheet has been submitted and the petitioner has been shown absconder. They submits that keeping one of the partners in dark, and opening a separate bank account in the name of the firm, definitely, makes out an offence, thus, the FIR cannot be quashed. They lastly submit that even if this Court finds that this petitioner is not involved, then also the FIR cannot be quashed in part. 12. After hearing the counsel for the parties and after going through the records, the Court finds that the allegation in the FIR is that the informant and the petitioner was partner in business. It is alleged that there was some dispute between them and the petitioner with an intention to cheat the informant, opened a separate bank account in the name of the firm in Bank of India, Vikas Bhawan Branch, Kutchery Road, Ranchi. It is alleged that the contracts, which were awarded to the firm by the government agencies and other departments were executed and the amount of the bills were deposited in the new bank account and the same was withdrawn by the petitioner. It is further the case that even inspite of informing the Bank Manager and the Executive Engineer, who is the accused No.3, they did not stop issuing the cheques to the firm. It is also alleged that a legal notice was given by the informant to the petitioner, the reply of which was counter signed by his brother, who is accused No.2. 13. From the aforesaid allegations, the Court finds that the imputation against the petitioner is that with the help of other accused persons, he opened the second bank account in Bank of India. 14. 13. From the aforesaid allegations, the Court finds that the imputation against the petitioner is that with the help of other accused persons, he opened the second bank account in Bank of India. 14. The Court further finds that that though there is an allegation that a forged bank account has been opened, from the arguments and the complaint, the word ‘forged’ which has been used, is a misnomer. From perusal of the complaint and also from the arguments of the parties, it is gathered that a second bank account has been opened in the name of the firm in Bank of India without the consent of the complainant. This second bank account cannot be said to be a forged bank account. There is no specific allegation about the particulars of documents manufactured. Bald allegation as to forgery or falsification of accounts without the production of the disputed documents cannot be the basis of forgery. It is necessary that false documents should be made with intent to cause damage or injury or with intent to commit fraud. 15. It is now well settled by proposition of law that when no offence is made out from perusal of the FIR, same can be quashed. The Hon’ble Supreme Court, in the case of “State of U.P. through CBI versus- R.K.Srivastava & Another, reported in (1989) 4 SCC 59 ” has held that if no offence is made out from the FIR, the same is liable to be quashed. On the contention of the petitioners that FIR cannot be quashed in part, the Hon’ble Supreme Court in the case of “Lovely Salhotra & another- versus- State (NCT of Delhi) & Another, reported in (2018) 12 SCC 391 ” has held that FIR can be quashed in part in respect of the some of the accused if no cognizable offence is made out against them. 16. Applying the aforesaid principles and the facts, which have surfaced in these cases in hand, the Court finds that the allegations, which have been levelled against the petitioner, do not constitute any offence. In a dispute between two partners, the petitioner has been roped in with allegations which do not constitute any criminal offence. 16. Applying the aforesaid principles and the facts, which have surfaced in these cases in hand, the Court finds that the allegations, which have been levelled against the petitioner, do not constitute any offence. In a dispute between two partners, the petitioner has been roped in with allegations which do not constitute any criminal offence. Thus, continuation of this criminal proceeding would be nothing but an abuse of the process of the Court and this Court by exercising jurisdiction under Section 482 of the Code of Criminal Procedure can quash the FIR so far as this petitioner is concerned. 17. Accordingly, the entire criminal proceeding including chargesheet dated 30.06.2013 in connection with Latehar P.S. Case No. 101 of 2012 dated 05.08.2012, corresponding to G.R. Case No. 453 of 2012, pending in the Court of learned Chief Judicial Magistrate, Latehar. so far as this petitioner is concerned, is quashed. 18. This petition stands allowed and disposed of. Pending, I.A., if any, stands disposed of. Interim order is vacated.