Jharkhand High Court
Hemant Kumar Poddar vs The State Of Jharkhand on 19 December, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P. (Cr.) No. 1071 of 2023
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1. Hemant Kumar Poddar, aged 61 years, son of late Mahavir Prasad Poddar
2. Himanshu Poddar, aged 30 years, son of Hemant Kumar Poddar, both residents of Gaushala Chowk, P.O. G.P.O. P.S. Kotwali, District-Ranchi ...... .... .... Petitioner(s)
-- Versus --
1.The State of Jharkhand
2. Anshul Sahay, wife of late Niraj Sahay, by profession Builder, resident of Tara Niwas, Airport Road, Hinoo, P.O. and P.S. Doranda, District-Ranchi ...... .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) :- Mr. Nilesh Kumar, Advocate
For the State :- Mr. Ashwini Bhushan, Advocate
For the Resp. No.2 : Mr. A.K. Das, Advocate
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7/19.12.2024 Heard the learned counsel appearing on behalf of the petitioners
as well as the learned counsel appearing on behalf of the respondent State and learned counsel for the respondent no.2.
2. Prayer in this writ petition is made for quashing the entire criminal proceeding in connection with Kotwali P.S. Case No. 240/2023 registered under sections 406, 420, 506/34 of the Indian Penal Code pending in the Court of learned Chief Judicial Magistrate, Ranchi.
3. The FIR was instituted by Niraj Sahay alleging that in the year 1 2016 one Deepak Kumar Bharatwar (Director of Urmila RCP) met with him and showed him the incomplete construction work on a plot of land in Jalan Road and further told the informant that he has an agreement with the owner of the land and asked the informant to complete the said incomplete construction work. The Informant under the impression that said Deepak Kumar Bharatwar is the director of Urmila RCP agreed to complete the said incomplete work after getting into an agreement with him. During the construction work was under progress one of the land owners named Hemant Kumar Poddar along with his son Himashu Poddar repeatedly came to the construction site, they introduced themselves as the land owners. They also discussed the previous agreement. Mr. Hemant Kumar Poddar took the informant into confidence and in the year 2018, he told the informant that the entire responsibility of the transaction has been handed over to him and his son Himanshu Poddar, they also promised the informant that they would transfer some shops and flats in the said under construction building in his name, the of price of Rs. 2,70,00000/- (two crore seventy lakhs) was settled for the flats and the shops. The informant believing in their words accepted the terms as per which it was decided that the informant will give cheque of Rs 5 lacs to the owners and upon payment in cash/ or in the account the cheque will be returned. On these terms and conditions the informant agreed and gave total 44 number of cheques each of Rs 5 lacs on the agreed basis and signed some plain papers, after this till the month of March 2023 including the advance amount the informant continuously paid them a total of Rs. 1,56,00,000/- (One Crore fifty six lakhs) in cash and in the account and in return, out of the total 44 cheques given by the informant, five checks were returned by the accused. Later on the informant came to know 2 that there are 16 owners of the said land and it has not been decided amongst the owners as to which flat and shop will go to whose share. When other stakeholders came to know about the amount given by the informant to the accused they all started objecting to it. The informant then came to know that right from the very inception the accused have deceived him and with the intention of cheating have made him pay an amount of Rs 1,56,00,000/- in the name of flats and the shops which does not come in their share. The informant contacted the accused and started insisting upon for the return of cheques and the signed blank papers given by him but the accused threatened the informant and denied returning the checks and the signed blank paper to him, the accused further threatened the informant that they will institute false cases against him.
4. Mr. Nilesh Kumar, learned counsel for the petitioners submits that in the year, 2008, the petitioners and other co-sharers of the land entered into an agreement/development agreement with the builder/construction firm namely Urmila R.C.P. Projects Pvt. Ltd. through its Managing Director Dipak Kumar Bharthuar. He submits that the petitioner no.1 and 11 other co-sharers of the land had agreed to give the land to Urmila R.C.P. Projects for the development and construction of building residential/commercial for which they amicably decided the terms and conditions. He submits that all the parties including the developer signed the development documents initially in the year, 2008 that is on 17.08.2008 and further on 28.07.2008. He further submits that subsequently other registered documents have been entered into between the parties. He further submits that the petitioner no.1 being the legal heir of the land in question has further actively worked for the procurement of land and its documents and also initially worked with 3 the builder to take possession of the land from the encroachers and to make the place workable as such the builder decided to give 5 % extra in addition to the development to the petitioner no.1. He then submits that building plan was finalized and construction was started. By way of referring several paragraphs of the writ petition he submits that transactions have been made by the petitioners that have been disclosed. He further submits that allegation against the petitioners has been falsely made by the informant. He then submits that total amount of Rs. 50 lakh was to be paid to the petitioner no.1 in lieu of 5 % additional agreed between the parties and even as per the developer that amount comes to Rs. 2,70,00,000/- for the rest of the amount as accepted by the informant i.e. Rs. 2,20,00,000/- he issued 44 cheques of Rs. 5 lakh each that is payable from 10.04.2020 to 16.12.2021 and for that as per the agreement dated 16 March, 2020, 44 different cheques that cheque numbers were issued and subsequently the cheques were dishonoured in view of that the petitioners filed Complaint Case No. 5974/21, 5975/21, 6003/21, Complaint Case No. 10943/22, 11075/22 under section 138 of the Negotiable Instrument Act. He submits that thereafter the present case has been instituted maliciously in view of that entire criminal proceeding may kindly be quashed. He submits that construction has not been completed. He relied in the case of Ëicher Tractor Limited and Others Vs. Harihar Singh and Another"
reported in (2008) 16 SCC 763.
5. Learned counsel for the respondent-State by way of drawing the attention of the Court to the counter affidavit filed on behalf of the respondent no.1 submits that investigation is going on and there is direct and specific allegation against the petitioners. He submits that both the petitioners for taking money from the informant while issuing 4 few shops and flat to be given to him in lieu of monetary consideration. He further submits that the petitioners have falsely assured the informant that the responsibility of transaction of the land has been conferred upon him whereas there are 16 land owners and they did not vest such responsibility of land upon them. He submits that the petitioners with intention to cheat demanded and took money from the informant in the garb of providing shop and flat. He submits that action on the part of the petitioners is not bonafide and intention to cheat from very beginning is there. He further submits that at the initial stage of investigation at this stage F.I.R. may not be quashed.
6. Mr. A.K. Das, learned counsel for the respondent no.2 submits that the informant has committed suicide as he has been cheated Rs. 1,56,00,000/- by the petitioners in view of that the widow of the informant has appeared and she has filed counter-affidavit. He submits that the petitioners with a dishonest intention in order to cheat the informant, made a false representation that they had an absolute right to deal with the land in question and concealing the fact that there are as many as 16 other co-sharers, induced the informant to part with a huge amount of Rs. 1,56,00,000/- and the informant realized that he has been cheated by the petitioners to such huge amount, he went into depression and ultimately left with no other option he committed suicide on 21.03.2024 in view of that counter affidavit has been filed by the widow of the informant and due to that his widow and two young children are now subjected to undue hardship. He then submits that in the year, 2016, one Deepak Kumar Bharatuar, the Director of Urmila RCP Construction approached the informant i.e. the husband of the respondent no.2 regarding the completion of a building on Jalan Road and he claimed to have an agreement with the landowner and under the 5 said assurance the informant agreed to finish the incomplete construction work. He then submits that the informant was a petty contractor who was appointed by Urmila R.C.P. construction. He further submits that during the said construction one of the landowners i.e. the petitioner no.1 along with his son i.e. petitioner no.2 introduced themselves as the landowners of the said piece of land and discussed the previous agreement thereafter both the petitioners proposed to sell some shops and flats in the said building out the landowner's share to the informant in exchange for a payment of Rs. 2,70,00,000/- and based on said assurance the informant agreed and gave 44 numbers of cheques of Rs. 5,00,000/- each. He submits that through RTGS amount has also been transferred and to buttress this argument he draws the attention of the court to Annexure-C series of the counter affidavit which is bank statement of the RTGS.. He submits that intention of cheating from the very beginning was also there. On these grounds, he submits that F.I.R. may not be quashed.
7. In the F.I.R. allegations are there of taking a sum of Rs. 1,56,00,000/- by the petitioners from the informant and shops and residential premises were to be handed over to the informant. The bank transaction brought on record by way of counter-affidavit filed by the widow of the informant clearly suggests that Rs. 74,00,000/- has also been transferred in the account of the petitioners by way of RTGS. It is alleged that there are 16 numbers of land owners and assurance was made that they have authorized the petitioners however lateron it was found that they have not authorized the petitioners which clearly suggests that intention of cheating from the very beginning is prima facie made out. Thus, prima facie case of cheating is made out. The document brought on record suggests that prima facie case of cheating 6 is made out however that can be subject matter of investigation only. The police has not submitted chargesheet as yet and investigation is going on.
8. In the writ petition many documents are attached including supplementary affidavit of the petitioners and on that back ground for quashing the F.I.R all those documents can be subject matter of investigation only as it is well settled that for quashing the F.I.R. the High Court is not required to roam into to come to the conclusion as to whether case is made out. The guidelines made by the Hon'ble Supreme Court in the case of State of Haryana and others V. Bhajan Lal and others" 1992 Supp. (1) SCC 335, paragraph no. 102 is also not made out so far the case of the petitioners is concerned.
9. It is also well settled that at the initial stage the High Court is not required to halt the investigation itself and if prima facie case is there that is required to be investigated and at appropriate stage only the High Court can interfere with. So far the judgment relied by the learned counsel for the petitioners in the case of Ëicher Tractor Limited (supra) is concerned, in that case the Court has found that counter blast case of section 138 of N.I. Act has been filed in view of that the Court has interfered and quashed the proceeding.
10. In the case in hand what has been discussed hereinabove the case of intention of cheating from the very beginning prima facie is made out as such the said judgment is not helping the petitioners.
11. It is well settled that if criminality is made out both civil and criminal cases can be maintained. Reference may be made to the case of "Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., reported in (2000) 3 SCC 269 wherein para 14,15 and 17, the Hon'ble Supreme Court has held as under:-
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"14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalingappa Konjalgi lend support to the above statement of law: (SCC p. 741, para 5) "(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
15. In the matter under consideration, if we try to analyse the guidelines as specified in Shivalingappa case can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused? In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither do we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this earliest stage as noticed above:
whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial and the observations on this score in the case of Nagpur Steel & Alloys (P) Ltd. v. P. Radhakrishna ought to be noticed. In para 3 of the Report this Court observed: [SCC (Cri) p. 1074, para 3)] "3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."
17. On a careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 8 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they "are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import". (vide Pratibha Rani v. Suraj Kumar) (SCC p. 383, para 21)."
12. In view of above facts, reasons and analysis, no case of interference is made out. Accordingly, this writ petition is dismissed.
Pending I.A, if any, stands dismissed. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R. 9