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2023 DIGILAW 705 (JHR)

Manav Bahri v. State of Jharkhand

2023-05-16

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : In both the petitions common question of law and similar complaint as well as cognizance order are under challenge that is why both the petitions are being heard together with the consent of the parties. 2. Both the petitions have been filed for quashing the entire criminal proceeding including order taking cognizance dated 29.05.2010 passed in connection with C.P. Case No. 460 of 2009, pending in the Court of learned Chief Judicial Magistrate, Bokaro. 3. Heard Mr. Indrajit Sinha, learned counsel for the petitioners and Mr. Binit Chandra and Mr. Jitendra Pandey, learned counsels for the State and Mr. B.B. Sinha, learned counsel for the respondent no.2. 4. Complaint case has been filed alleging therein that the complainant is the proprietor of a firm named M/s Singh Builders Construction & Suppliers and his residence is at Sector 8/D, Quarter No. 3040, Bokaro Steel City, Police Station-Harla, District Bokaro. The complainant in course of usual business transaction met with accused no.1. It was further alleged that the accused no.1 gave proposal to do business with his own company. The complainant-accepted proposal of the accused no.1 and along with him other officials were also present who introduced themselves as the members of Board of Directors the complainant as per their terms agreed to have dealing with the company of the accused persons. The accused asked him to deposit a sum of Rs. 15 lakhs in their account. It was further alleged that while the complainant expressed his state of inability in putting in full Rs. 15 lakhs and proposed that for the present he deposit a sum of Rs. 12,50,000.00/- only, then the accused no. 1 readily agreed to that, and on 25.09.2008 A.D, the accused no. 1 at the Bokaro Civil Court, in presence of Notary Public signed on the ‘Receipt’ as a proof of receiving the sum of Rupees tweleve lakhs fifty thousand. The Written Agreement was also being typed at the same time between the complainant and the accused persons and in presence of the said Notary Public Sr. P.K. Tiwari, both the accused no.1 and the complainant put their respective signatures in presence of the witnesses. The Written Agreement was also being typed at the same time between the complainant and the accused persons and in presence of the said Notary Public Sr. P.K. Tiwari, both the accused no.1 and the complainant put their respective signatures in presence of the witnesses. It was further alleged that in the meantime the accused persons called the complainant over telephone places like New Delhi, Kolkata, and Madras and introduced him to other Agreement Holder Companies and also informed about various ways to better running of the business and on one or two occasions even Foreign Companies were also found participating in such meetings. It was further alleged that for being present in such meetings the complainant had to incur considerable sum. The complainant regularly called on the Accused no. 1, Over telephone/Mobile Phone to enquire that from when the lifting of Gas of complainant would start, on this the accused no. 1 told the complainant that you better contact accused no. 2 because at present at NH 3, ONGC Talgadia the Accused no. 2 is the person in charge and talk to him. It was further alleged that when the complainant talked to the Accused No. 2 over telephone, then the accused no. 2 called the complainant to his office on 29.8.2009. Accordingly at the, instruction of accused no. 1 and having been called by the accused no. 2, the complainant went to the office of the Accused No. 2 after hiring a Tata Sumo Vehicle No. JH-9E-6290 driven by driver Rakesh Kumar. It was further alleged that the dialogue regarding the Agreement dt. 25.9.08 between the Accused No. 2 and the complainant was initiated, when at the first instance the Accused No. 1 said that now there is delay to start the business, it will take time, but when the complainant told that things are not like that, business has commenced and as per the agreement they are bound to give share of profit and by not doing so they are infringing the conditions of the Agreement. Hence it is clear that whatever Agreement they have entered into with the complainant at Bokaro Civil Court on 25-9-08 and accepted the sum of Rupees 'Twelve Lakhs Fifty thousand rupees only, with the intention of defrauding the complainant. You people have played fraud on me. I will file a case against you people for defrauding and breach of trust. Hence it is clear that whatever Agreement they have entered into with the complainant at Bokaro Civil Court on 25-9-08 and accepted the sum of Rupees 'Twelve Lakhs Fifty thousand rupees only, with the intention of defrauding the complainant. You people have played fraud on me. I will file a case against you people for defrauding and breach of trust. On that the accused No.2 said that you do not know that at this place how much powerful this office/company is actually, case of yours will not be allowed to proceed and we will see to it what you are able to do. It was further alleged that at that point of time, the accused No.2 held the complainant and snatched all the papers including agreement paper, receipt etc. and took them in the custody and thereafter torn all of them there itself. When the complainant resisted, at the behest of accused No.2 about 2-3 persons entered and started threatening the complainant and started assaulting him physically. It was further alleged the accused No.1 with the intent of defrauding the complainant caused the execution of the said Agreement only to swallow the said twelve Lakhs fifty thousand rupees which they received in cash, From this it is clear that they had preconceived notion to play fraud on him from the beginning and the accused no.2 physically assaulted the complainant and the witness no.4 and misbehaved with them and also snatched money he was carrying and the gold chain which the complainant was wearing and committed a crime thereby. With that they also threatened him (the complainant) you utter anything anymore then other members of your family will also be implicated in false case. It was further alleged that the complainant informed the police station about the entire incident verbally, but the police station told that how did you dare to sit before such big company, your complain will not be lodged, rather you will be taken to jail and thereafter all those people were taken to jail. 5. Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that by order dated 29.05.2010 the learned court has taken cognizance under sections 323, 379 and 504 of the Indian Penal Code. He further submits that the petitioners along with one Mr. 5. Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that by order dated 29.05.2010 the learned court has taken cognizance under sections 323, 379 and 504 of the Indian Penal Code. He further submits that the petitioners along with one Mr. Srikanta Chaterjee of Calcutta (West Bengal) formed a company, namely, Calcutta Compressions and Liquefaction Engineering Pvt. Ltd. (CC &L) in the year, 2004 under the Companies Act, 1956 and thereafter several share holders were the regular directors of the company. He submits that the said company was in business of purchase natural gas/coal bed methane gas from the prospective suppliers in India, compress it at high pressure by putting up compressing stations in Eastern India and supply the compressed gas to vehicles to ply in Compressed Natural Gas instead of diesel and petrol being it cheaper and pollution free and also distribute as Pipe Natural Gas (PNG) to Industrial customers for them to use the said processed gas as cheapest input fuel for their respective industrial production. He further submits that the said company was sold out to Everest Kanto Cylinders Ltd. (EKC) and Position Energy Private Ltd. (PEPL). He submits that the allegations are made by the respondent no.2 that there was an agreement dated 25.09.2008 and that agreement has already said to be null and void by the Bombay High Court in Suit No. 486 of 2010. He further submits that the petitioners were receiving threatening for that they have lodged Chandankiyari P.S. Case No. 128 of 2009 in which chargesheet has been submitted. He submits that in this back ground it is crystal clear that the present complaint is counter blast of Chandankiyari P.S. Case No. 128 of 2009 and this fact has also been admitted in the counter-affidavit that the present case appears to be counterblast case. To buttress his argument, learned counsel for the petitioners relied in the case of Vineet Kumar v. State of U.P., (2017) 13 SCC 369 . 6. On the other hand Mr. B. B. Sinha, learned counsel for the respondent no.2 submits that the present case is not counter blast however facts are there and in that view of the matter cognizance has been taken and at this stage this Court may not interfere and these petitions may be dismissed. 7. Mr. 6. On the other hand Mr. B. B. Sinha, learned counsel for the respondent no.2 submits that the present case is not counter blast however facts are there and in that view of the matter cognizance has been taken and at this stage this Court may not interfere and these petitions may be dismissed. 7. Mr. Binit Chandra learned counsel for the State submits that Chandankiyari P.S. Case No. 128 of 2009 has been instituted by the petitioners in which chargesheet has been submitted however the present case is a complaint case and the learned court has taken cognizance. 8. In view of above submissions of the learned counsel for the parties the Court has gone through the materials on record and finds that the date of occurrence is 29.08.2009 whereas complaint case has been filed on 03.09.2009. The petitioners have filed Chandankiyari P.S. Case No. 128 of 2009 on the occurrence of the same date however the case is arising out of an agreement. If there is any dispute for agreement that can be civil and for that criminal case is not maintainable however, the said company was purchased by Everest Kanto Cylinders Ltd. (EKC) and Position Energy Private Ltd. (PEPL) and the agreement on which reliance was placed by the learned counsel for the respondent no.2, that agreement has already said to be null and void by the Bombay High Court in Suit No. 486 of 2010. Thus as the said agreement has been held null and void, criminal case cannot be maintainable. It appears that the case of the petitioners is fully covered with Vineet Kumar v. State of U.P., (2017) 13 SCC 369 wherein para 41 the Hon’ble Supreme Court has held as under:- 41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426, which is to the following effect: (SCC p. 379, para 102) “102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.” 9. In view of the aforesaid facts, reasons and analysis, the entire criminal proceeding including order taking cognizance dated 29.05.2010 passed in connection with C.P. Case No. 460 of 2009, pending in the Court of learned Chief Judicial Magistrate, Bokaro, are hereby quashed. 10. Both these petitions are allowed and disposed of. Pending interlocutory application also stands disposed of.