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2023 DIGILAW 677 (JHR)

Jainendra Kumar Jyoti v. State of Jharkhand

2023-05-11

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Rupesh Singh, learned counsel for the petitioner, Mr. Fahad Allam, learned counsel for the State and Mrs. Richa Sanchita, learned counsel for opposite party no.2. 2. This petition has been filed for quashing the order taking cognizance dated 22.12.2011 as well as entire criminal proceeding arising out of the Complaint Case being P.C.(C/1) Case No.161 of 2009, pending in the court of the learned Sub Divisional Judicial Magistrate at Seraikella. 3. The complaint case was filed on 07.12.2009 alleging therein that the petitioner along with another co-accused namely Satrughan Kumar defrauded the complainant and his company namely Adhunik Group of Companies, P.S. Kandra, District- Seraikella-Kharsawan by fraudulently transferring the piece of land bearing Thana No.47 Khata No.45, Plot No.562 and 656, measuring an area of 0.46 acres on the basis of Power of Attorney which upon scrutiny and verification by the complainant was found that Plot No.562 belongs to the Government and its real Khata No. is 77 instead of Khata No.45. It was further alleged that the aforesaid act of cheating and forgery committed by the petitioner and one another coaccused person, the petitioner has been siphoned away Rs.1,90,000/- of the complainant towards consideration money of the aforesaid land. 4. Mr. Rupesh Singh, learned counsel for the petitioner by way of inviting attention of the Court to the complaint petition submits that it is an admitted fact that the petitioner was the Power of Attorney holder of accused no.2 namely Satrughan Kumar who represented himself to be the title holder of the land situated at Mouza Padampur, P.S. Kandra, Than No.47, Khata No.45 bearing Plot No.562 and 656, measuring an area of 0.46 acres of land. He further submits that the petitioner was engaged as commission agent by M/s. Adhunik Power Natural Resources Limited for purchase of the land in order to establish their power plant in the State of Jharkhand and for this the petitioner was entitled for a sum of Rs.20,000/- per acre as commission for the services rendered. He further submits that Satrughan Kumar came forward stating that he is having right, title and interest of the land in issue and executed the sale deed on 16.07.2008 in favour of the company concerned. He also submits that the petitioner was not having knowledge about defect in title. He further submits that Satrughan Kumar came forward stating that he is having right, title and interest of the land in issue and executed the sale deed on 16.07.2008 in favour of the company concerned. He also submits that the petitioner was not having knowledge about defect in title. He submits that it has been alleged that after one and half year, when the complainant proceeded to take possession of the land on behalf of the company, he was intercepted by one Vikram Hansda who claimed to have purchased part of the land prior to the purchase by the company and on enquiry, it was revealed that Plot No.562 is a Government land and its real Khata No. is 77 instead of Khata No.45. He submits that in this background, the complaint case has been filed by the company. He further submits that there are two impeachable documents on record contained in Annexures-3 and 4 of the petition. By way of inviting the Court's attention on Annexure-3, he submits that it has been pointed out by Tarun Kumar Singh, who is witness in the complaint petition as well as in sale deed, that Plot No.562 is a Government plot and consideration amount has not been paid as yet and request has been made to stop the payment to the petitioner related to sale of 0.46 acres of land. By way of referring Annexure-4, he submits that it is the Minutes of the meeting of Board of Directors of the Company, wherein, it has been discussed in the meeting that there is typographical error with regard to plot number and it has been typed as Plot No.562 instead of Plot No.561. He relied upon the judgment passed in Anita Malhotra v. Apparel Export Promotion Council and another; [ (2012) 1 SCC 520 ]. 5. Paragraph 20 of the said judgment is quoted herein below: “20. He relied upon the judgment passed in Anita Malhotra v. Apparel Export Promotion Council and another; [ (2012) 1 SCC 520 ]. 5. Paragraph 20 of the said judgment is quoted herein below: “20. As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code.” 6. Learned counsel for the petitioner further submits that the counter affidavit was filed by the company in A.B.A. No.1422 of 2012, wherein, these documents are admitted in paragraph 8 of the said counter affidavit. The said counter affidavit has been brought on record by way of filing I.A. No.7922 of 2013. He submits that in this background when consideration amount has not been received and it is an admitted fact, the case of cheating is not made out. He further submits that the petitioner had done many transaction with the company in the present case only, such type of case has been lodged. He submits that from the very beginning, the intention of cheating was not there and in light of Section 415 of IPC, the case of cheating is not made out. To buttress his argument, he relied upon the judgment passed in All Cargo Movers (India) Private Limited & others v. Dhanesh Badarmal Jain & another; [ (2007) 14 SCC 776 ]. 7. Paragraphs 16 and 19 of the said judgment are quoted herein below: “16. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of Respondent 1-plaintiff in the suit. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of Respondent 1-plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. 19. In Anil Mahajan v. Bhor Industries Ltd. [ (2005) 10 SCC 228 : (2006) 1 SCC (Cri) 746] this Court held : “8. The substance of the complaint is to be seen. Mere use of the expression ‘cheating’ in the complaint is of no consequence. Except mention of the words ‘deceive’ and ‘cheat’ in the complaint filed before the Magistrate and ‘cheating’ in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MoU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant's own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.”” 8. On the other hand, Mrs. Richa Sanchita, learned counsel for opposite party no.2 submits that the case of cheating is made out and that is why the company has been compelled to file the complaint case. She further submits that the responsibility on this petitioner was higher as company believed on him and that is why he was appointed as Power of Attorney, however he failed to do things in right direction and in that view of the matter, entire subject matter can be looked into in trial only and at this stage, this Court may not interfere. She relied upon the judgment passed in Mohammad Ibrahim and others v. State of Bihar and another; [ (2009) 8 SCC 751 ]. 9. Mr. Allam, learned counsel for the State submits that the case of cheating is made out and that is why the learned court has rightly taken cognizance. 10. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the documents contained in Annexures-3 and 4 as well as the counter affidavit filed in A.B.A. No.1422 of 2012 which has been brought on record by way of filing I.A. No.7922 of 2013. It is an admitted fact that the petitioner was appointed as commission agent for purchasing the land by the company for expansion of plant. Certain remuneration was also fixed for such work to be rendered by the petitioner. It is an admitted fact that the petitioner was appointed as commission agent for purchasing the land by the company for expansion of plant. Certain remuneration was also fixed for such work to be rendered by the petitioner. Annexure-3 is the document of the company which suggests that Plot No.562 is a Government plot and consideration amount was not paid, which clearly suggest that it was withing the knowledge of the company that Plot No.562 is a Government plot and the request was made by none other than Tarun Kumar Singh, who is one of the witness in the complaint case as well as in sale deed dated 16.07.2008. It is well settled that in absence of any consideration in transaction of movable properties has been made, that is invalid transaction. In the Minutes of the meeting of the Company, contained in Annexure-4, it has been further disclosed that there was a typing mistake and in place of Plot No.561, it has been typed as Plot No.562. Thus, it cannot be said that it was not within the knowledge of the company that such situation has occurred and it was within the domain of the company to take preventive measures and not to proceed further. Further in paragraph 8 of the counter affidavit filed in A.B.A. No.1422 of 2012, Annexures- 3 and 4 have been admitted, however only assertion has been made therein that it was confidential document of the company and how the petitioner has come into possession of this document is questionable and that was only objection with regard to Annexures-3 and 4. Thus, Annexures-3 and 4 are impeachable documents and the case of the petitioner is covered in light of the judgment passed in Anita Malhotra (supra). 11. Further, if there is any dispute with regard to the land in question, it appears that it is civil in nature and for that criminal case has been filed. There is no doubt that criminal case and civil case can go simultaneously, if criminality is made out, however if the criminality is not made out, to allow the criminal proceeding to continue will amount to abuse of process of law and it is well settled in the criminal jurisprudence. 12. There is no doubt that criminal case and civil case can go simultaneously, if criminality is made out, however if the criminality is not made out, to allow the criminal proceeding to continue will amount to abuse of process of law and it is well settled in the criminal jurisprudence. 12. The judgment relied by the learned counsel for opposite party no.2 in Mohammad Ibrahim (supra) is not in dispute and in that case the Hon'ble Supreme Court was examining Sections 467, 471, 463 and 464 of IPC and two Sections are meant for making forgery of the documents and in that scenario, it has been held that the purchaser cannot be held liable for that lapse. The fact of this case is otherwise and in that view of the matter, the judgment relied by the learned counsel for opposite party no.2 is not helping opposite party no.2. 13. In view of the above facts, reasons and analysis, the Court comes to the conclusion that it is a fit case to exercise power under Section 482 Cr.P.C. Accordingly, the order taking cognizance dated 22.12.2011 as well as entire criminal proceeding arising out of the Complaint Case being P.C.(C/1) Case No.161 of 2009, pending in the court of the learned Sub Divisional Judicial Magistrate at Seraikella is quashed. 14. Accordingly, this petition is allowed and disposed of. 15. It is made clear that if any civil proceeding is pending earlier or instituted later on, that will be decided on its own merit without prejudiced to this order. 16. Pending I.A., if any, is disposed of.