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2025 DIGILAW 22 (ALL)

Rajesh Kumar Singh v. State of U. P

2025-01-08

MANOJ BAJAJ

body2025
JUDGMENT : Manoj Bajaj, J. 1. The above two applications have been filed by the respective accused persons under Section 482 Code of Criminal Procedure for quashing of the charge sheet bearing No. 160/2010 dated 11th May, 2010, arising out of Case Crime No. 241 of 2010, under Sections 406 , 504 and 506 IPC , Police Station Ghazipur, District Lucknow, and the charge sheet bearing No. 160A/2014 dated 14th July, 2014, arising out of Case Crime No. 241A of 2010, under Sections 147 , 148, 323, 504 and 506 IPC , Police Station Ghazipur, District Lucknow, which were registered by the rival parties against each others. Besides, the applicants have also challenged the respective cognizance orders dated 24th June, 2010 and 4th September, 2014, whereby they have been summoned in the pending criminal proceedings. 2. Briefly the facts leading to the applications are that two work orders for setting up Sewerage Treatment Plants (STP) and Effluent Treatment Plants (ETP) was placed by M/s Sawen Consultancy Services (hereinafter referred to as "Party No. I") to M/s Eco Water Solutions Technologies Private Limited (hereinafter referred to as "Party No. II") vide letters dated 23.06.2008 and 04.07.2008, and relating to the said works, dispute between the two companies arose and litigation also commenced. Apart from the civil litigation instituted by both sides against each other, the respective parties lodged criminal cases against each other for their prosecution through the above noticed two FIR(s). The applicants in Application u/s 482 No. 724 of 2012; titled Dr. Rajesh Kumar Singh and another vs. the State of U.P. and another , are the Director and Joint Director, respectively of "Party No. I", whereas Sachchidanand Rai and Guna Kesh Rai are Director(s) of "Party No. II". 3. The Case Crime No. 241/2010 was registered on the basis of a written complaint dated 3rd April, 2010 given by complainant Guna Kesh Rai, wherein it is alleged that his company "Party No. II" situated at B-38, Okhla Industrial Area, Phase-I, New Delhi received a work order from "Party No. I" situated at 409-A, 426-B, IVth Floor, Sahara Shopping Centre, Faizabad Road, Lucknow and the total worth of the two work orders was Rs. 20,00,000/- and Rs. 47,00,000/- respectively, and against it, a sum of Rs. 23,80,500/- is outstanding. On demanding the money, the debtors abused the complainant and extended threats, who also refused to issue Form 'C'. 20,00,000/- and Rs. 47,00,000/- respectively, and against it, a sum of Rs. 23,80,500/- is outstanding. On demanding the money, the debtors abused the complainant and extended threats, who also refused to issue Form 'C'. Broadly, on these allegations, the complainant prayed for prosecution of the accused, i.e. Director(s) of "Party No. I", whereupon the case was registered for alleged commission of offences punishable under Sections 406 , 504 and 506 IPC . 4. After completion of investigation, the charge sheet against the accused namely Dr. Rajesh Kumar Singh and Satendra Singh was filed, whereupon the impugned cognizance order dated 24th June, 2010 was passed by Special Chief Judicial Magistrate, Custom, Lucknow. Hence, this Application U/s 482 No. 724 of 2012. 5. The other FIR was registered at the instance of Dr. Rajesh Kumar Singh, who had also given a written complaint to the police dated 3rd April, 2010, wherein it is alleged that they had given order for setting up Sewerage Treatment Plants (STP) and Effluent Treatment Plants (ETP) to "Party No. II", but the said firm left the job incomplete, and in this regard, a legal notice was served upon the defaulting firm. In relation to the dispute, Sachchidanand Rai called the complainant at Police Station Ghazipur, where they all used abusive language against the complainant and refused to discuss the issue. Later, the accused Sachchidanand Rai and few unknown persons in the absence of the officials/Director(s) of the complainant's company came to the premises of their company and proclaimed that they know how to recover the money. The accused had come in the vehicles bearing Nos. U.P.65-K 0009 Safari', U.P. 32-C.N.3327 'Tavera' and 'Scorpio' (number not known)". The accused also misbehaved with Dr. Arpita Sinha, Junior Manager. On these allegations, the FIR was registered for alleged commission of offences punishable under Sections 147 , 148, 323, 504 and 506 IPC , Police Station Ghazipur, Lucknow. 6. After completion of the investigation in this case, the police initially did not find any incriminating material against the accused, and a final report under Section 173(2) Cr.P.C. exonerating the accused was filed, but aggrieved against the said final report, complainant preferred a Protest Petition, and thereafter, the Special Chief Judicial Magistrate, Custom, Lucknow ordered further investigation on 29th January, 2014 (Annexure No. 7'). 7. 7. In deference to the said order, the investigating officer again looked into the allegations and filed a charge sheet against the accused on 14th July, 2014, whereupon the impugned cognizance order was passed on 4th September, 2014. Hence, this Application u/s 482 No. 2966 of 2017. 8. Mr. Sushil Kumar Singh, learned counsel appearing on behalf of the applicants in Application u/s 482 No. 724 of 2012 has argued that the applicants are the Director(s) of a renowned "Party No. I", who were granted contract for setting up Sewage Treatment Plants (STP) and Effluent Treatment Plant (ETP) at Medical College Kannauj and to execute the said job, they had further engaged "Party No. II" and the said work was to be completed in a stipulated period, but the same was not completed. Learned counsel submits that though the work was started by "Party No. II" and was left incomplete, which gave rise to a dispute between the parties and a legal notice was issued to "Party No. II", however later on, a civil suit dated 21st April, 2011 for Rendition of Accounts was filed by "Party No. I", which is pending adjudication before the Commercial Court at Lucknow. Learned counsel submits that the other side has also instituted two suits for recovery, i.e. the first suit instituted on 21st April, 2011 for recovery of a sum of Rs. 38,57,512/- before the High Court of Delhi at New Delhi, followed by another suit instituted on 5th May, 2011 at District Court, Saket, New Delhi for recovery of a sum of Rs. 5,25,786/-. 9. According to Mr. Sushil Kumar Singh, learned counsel, the suit filed at the Saket Court was stayed in terms of Section 10 Code of Civil Procedure being subjudice, as the issues raised in the said suit were identical to the issues raised by the applicants Dr. Rajesh Kumar Singh and Satendra Singh in their suit at Lucknow. Learned counsel submits that apparently it is purely a civil dispute between the parties and the impugned FIR has been registered with an oblique motive to pressurize the applicants. Rajesh Kumar Singh and Satendra Singh in their suit at Lucknow. Learned counsel submits that apparently it is purely a civil dispute between the parties and the impugned FIR has been registered with an oblique motive to pressurize the applicants. Learned counsel has further pointed out that the investigating officer has not analyzed the allegations made in the impugned FIR, who has filed the charge sheet under Section 173 (2) Cr.P.C., whereupon the impugned cognizance order has been passed against the applicants of petition bearing Application u/s 482 No. 724 of 2012. Learned counsel submits that the alleged offences are not made out, therefore, the applicants have approached this Court for quashing of the impugned criminal proceedings. 10. The prayer is opposed by Mr. Mandeep Kumar Mishra, learned counsel for the complainant-opposite party no. 2 Guna Kesh Rai (applicant no. 2 in Application u/s 482 No. 2966 of 2017; titled Sachchidanand Rai and another vs. State of U.P. and another ), who has argued that once it is not disputed by the Director(s) of "Party No. I" that pursuant to the work order placed by their company in favour of "Party No. II, the work was carried out, and the cost incurred by the company "Party No. II" has not been paid by "Party No. I", much less in terms of the written agreement between the parties, therefore, this amounts to "breach of trust" and prima facie the case punishable under Section 406 IPC is made out against the accused. Learned counsel further pointed out that whenever the money was demanded from the debtors, they extended threats, therefore, the offences punishable under Sections 504 and 506 IPC are also made out and the trial court has rightly taken cognizance of the said offences, and in this background, no interference is called for by this Court in exercise of inherent powers under Section 482 Cr.PC. Learned counsel prays that the petition bearing Application u/s 482 No. 724 of 2012 be dismissed. 11. Mr. Mandeep Kumar Mishra, learned counsel further argued that the FIR against the Director(s) of "Party No. I" is based upon the complaint dated 3rd April, 2010, and in retaliation, complainant Dr. Rajesh Kumar Singh has falsely implicated them through the Case Crime No. 241A of 2010 registered for alleged commission of offences punishable under Sections 147 , 148, 323, 504 and 506 IPC . Rajesh Kumar Singh has falsely implicated them through the Case Crime No. 241A of 2010 registered for alleged commission of offences punishable under Sections 147 , 148, 323, 504 and 506 IPC . Learned counsel submits that after completion of investigation, a final report under Section 173(2) Cr.P.C. was filed in favour of the accused, who were declared innocent, but after conducting further investigation, the impugned charge sheet No. 160A of 2014 dated 14th July, 2014 has been filed against Sachchidanand Rai and Guna Kesh Rai. 12. Mr. Mandeep Kumar Mishra, learned counsel has argued that a reading of impugned FIR would show that the ingredients to constitute the alleged offences punishable under Sections 147 , 148, 323, 504 and 506 IPC are not made out, therefore, the applicants have approached this Court to seek quashing of the criminal proceedings, which is nothing, but an abuse of the process of the law. He prays that Application u/s 482 No. 2966 of 2017 be allowed and the impugned criminal proceedings based upon the charge sheet no. 160-A dated 14th July, 2014 be set aside. 13. In response, Mr. Sushil Kumar Singh, learned counsel appearing on behalf of the opposite party no. 2-complainant has argued that, even if, it is a civil dispute between the parties, but the accused resorted to the violence, who alongwith their companions entered the premises of the complainant's company and misbehaved with the staff and extended threats, so the criminal case can also proceed simultaneously. In this regard, learned counsel has produced the statement of Dr. Arpita Sinha, Junior Manager of "Party No. I" and pointed out that the accused misbehaved with her and asked about the whereabouts of Director(s) of the company "Party No. I" in order to forcibly recover the money from them. He submits that the final report filed earlier in favour of the accused was not based upon the proper investigation, therefore, the Magistrate had directed further investigation, and finally, the charge sheet against the accused has been filed. He prays that Application u/s 482 No. 2966 of 2017 be dismissed. 14. Learned State Counsel has argued that the two FIR(s) are based upon two different occurrences and the dispute originally between the parties started for breach of contract, but both the sides have shown aggression against each other, and since, all these offences are cognizable, therefore, the respective FIR(s) were registered. 14. Learned State Counsel has argued that the two FIR(s) are based upon two different occurrences and the dispute originally between the parties started for breach of contract, but both the sides have shown aggression against each other, and since, all these offences are cognizable, therefore, the respective FIR(s) were registered. Learned State Counsel submits that after thorough investigation, the evidences in respect of the two occurrences were collected, whereupon both the sides have been sent to face trial, separately. He submits that these cases involve the disputed facts, which can be effectively ascertained only on the basis of the evidence, therefore, he prays that both the applications be dismissed. 15. After hearing the learned counsel for the parties and considering their submissions, this Court finds that as far as the business relations between the two companies "Party No. I and Party No. II" are concerned, the same is not disputed, which is based upon a written agreement. For this commercial dispute, both rival parties have levelled allegations each other and have claimed to have suffered losses, but concededly, the parties have already reached before the civil court, who have filed their respective civil suits either seeking rendition of accounts or recovery of money. As far as the rights arising from the written contract between the two companies are concerned, the same would be determined by the civil court and during the course of hearing, it is also fairly stated by learned counsels for both the parties that the first suit instituted by "Party No. I" pending before the Commercial Court at Lucknow has reached at an advanced stage, as both sides have adduced their respective evidence. 16. Similarly, out of two suits instituted by "Party No. II" at Delhi, proceedings only in one suit are going on, whereas the other one has been stayed and their claim for recovery against "Party No. I" would be also adjudicated upon by the Civil Court. 17. Now, while reverting to the written complaint dated 3rd April, 2010 given by complainant Guna Kesh Rai, this Court finds that it only narrates the placement of work order by "Party No. I" in favour of "Party No. II" and defines the value of the contract as well as the outstanding debt amount. The allegations regarding extending threats are apparently vague, and even, the place of occurrence is not disclosed. The allegations regarding extending threats are apparently vague, and even, the place of occurrence is not disclosed. The complainant only made a prayer for appropriate action, but in the considered opinion of this Court in the absence of any specific threats amounting to criminal intimidation, the alleged offences punishable under Sections 504 and 506 would not be even prima facie made out. 18. Similarly, the ingredients to constitute the offence punishable under Section 406 IPC are also absent, as it is not a case of any voluntary entrustment by complainant Guna Kesh Rai to the accused persons. Merely because, the parties are having a civil dispute, and according to complainant, some amount is outstanding and the non-payment of the said amount, at least, would not constitute the offence punishable under Section 406 IPC . The definition of "criminal breach of trust" as contained in Section 405 IPC reads as under:- " 405. Criminal breach of trust.— Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"." 19. A reading of the above makes it absolutely clear that neither there is any entrustment by the complainant or the firm "Party No. II", nor there is any misappropriation by "Party No. I" or its Director(s) resulting in breach of trust, therefore, the prosecution of the applicants in Application u/s 482 No. 724 of 2012 is unjustified and the continuation of the criminal proceedings against them deserve to be set aside. 20. Now, while analyzing the other complaint dated 3rd April, 2010 by Dr. Rajesh Kumar Singh submitted before the police against the Director(s) of "Party No. II", this Court finds that mainly the complainant has raised his grievance regarding non-completion of the contract awarded in favour of the accused and a consequent loss suffered by him. 20. Now, while analyzing the other complaint dated 3rd April, 2010 by Dr. Rajesh Kumar Singh submitted before the police against the Director(s) of "Party No. II", this Court finds that mainly the complainant has raised his grievance regarding non-completion of the contract awarded in favour of the accused and a consequent loss suffered by him. Since, the complainant himself has filed a suit for rendition of accounts, which has already reached at the final stage, this Court finds that the continuation of the criminal proceedings against the Director(s) of "Party No. II" is also not proper, particularly when the complainant has not made any allegation regarding criminal intimidation. 21. Most importantly, a perusal of the complaint dated 3rd April, 2010 would show that the complainant has alleged only misbehaviour by the accused and the same cannot be construed as an intimidation to the victim, because discourtesy or improper behaviour may give a feeling of insult to a victim, but it would not strictly constitute the offences punishable under Sections 504 or 506 IPC . The statement of Dr. Arpita Sinha, Junior Manager recorded after four years of the complaint is also lacking in material particulars, and is not specific, therefore, the same cannot be given credence for prosecution of the Director(s) of "Party No. II". 22. At this juncture, reliance can be placed upon the decision of the Hon'ble Apex Court in Paramjeet Batra v. State of Uttarakhand and others , passed in Criminal Appeal No. 2069 of 2012, wherein while examining a similar issue in the context of exercise of inherent powers under Section 482 Cr.P.C. The Hon'ble Apex Court made the following observations:- " 7 . While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court." 23. In Vesa Holdings Pvt. Ltd. and another vs. State of Kerala & Ors. reported in 2015 (8) SCC 293 , the Hon'ble Supreme Court examined the abuse of process of law in the context of civil disputes between the parties and made the following observartions:- " 9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC . In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide 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. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings." 24. Further, the Hon'ble Apex Court in State of Haryana and others v. Ch. Further, the Hon'ble Apex Court in State of Haryana and others v. Ch. Bhajan Lal and others , 1991 (1) RCR (Criminal) 383 : 1992 Supp(1) Supreme Court Cases 335, had laid down the principles and guidelines for exercise of inherent powers under Section 482 Cr.P.C. The relevant portion of the judgment is reproduced below :- "The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C., 1973 can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 25. Thus, in the considered opinion of this Court, this case is also a fit case for exercise of inherent powers under Section 482 Cr.P.C. to avoid the misuse of law. 26. Resultantly, both the applications succeed and Charge Sheet No. 160/2010 dated 11th May, 2010 as well as the cognizance order dated 24th June, 2010, arising out of Case Crime No. 241/2010, under Sections 406 , 504 and 506 IPC , Police Station Ghazipur, Lucknow and Charge Sheet No. 160A/2014 dated 14th July, 2014 as well as the cognizance order dated 04th September, 2014, arising out of Case Crime No. 241A/2010, under Sections 147 , 148, 323, 504 and 506 IPC , Police Station Ghazipur, Lucknow, and the entire proceedings arising therefrom, pending in the Court of Special Chief Judicial Magistrate, Custom, Lucknow, are ordered to be quashed. 27. The applications are allowed.