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Jharkhand High Court

Rabin Singh vs The State Of Jharkhand & Anr. .... ... on 30 August, 2022

Author: Navneet Kumar

Bench: Navneet Kumar

                                    1.                        Cr. M.P. No.1914 of 2013




               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. M.P. No.1914 of 2013

        Rabin Singh                                .....   Petitioner
                              Versus
        The State of Jharkhand & Anr.              ....      Opposite Parties

               CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

        For the Petitioner      :        Mr. Kaushik Sarkhel, Advocate
        For the State           :        A.P.P.
        For the O.P. No.2       :        Mr. Nityanand Pd. Choudhary, Advocate
          -----

6/30.08.2022 Heard the learned counsel Mr. Kaushik Sarkhel appearing on behalf of the petitioner and learned Counsel Mr. Nityanand Pd. Choudhary, appearing on behalf of the O.P.No.2 and the learned APP appearing on behalf of the State.

2. It is submitted on behalf of the petitioner that this Cr.M.P. has been filed for quashing the entire criminal proceeding in connection with P.C.R. No. 65 of 2013 including the order taking cognizance dated 06.06.2013 passed by Judicial Magistrate, 1st Class, Jamtara, whereby and where under on the basis of the protest cum complaint petition filed on behalf of the opposite party No.2, the learned court below was pleased to find a prima facie case under Sections 406, 420 r/w S. 34 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.), and accordingly took the cognizance for the offence punishable under Sections 406, 420 r/w S. 34 of the I.P.C. against the petitioner and also issued summons to the present petitioner to face the trial.

3. It has been submitted that on an earlier occasion, the O.P. No. 2, Complainant namely Daud Ansari had instituted a complaint case being P.C.R. Case No.113 of 2012 implicating this petitioner Rabin Singh as one of the accused in the Court of S.D.J.M., Jamtara and on the basis of the aforesaid complaint case a police case vide Fatehpur P.S. Case No. 17 of 2012, under Sections 420, 406 r/w S. 34 of the I.P.C.

dated 07.06.2012, corresponding to G.R. No. 323 of 2012 was registered and the investigation of the case commenced and after completion of the investigation, the final report vide 17 of 2012 dated 01.07.2012 was submitted absolving the accused petitioner from the offence as alleged in the F.I.R. for want of evidence and suggesting that it was a civil nature of dispute and thereafter the complainant O.P. No.2 filed a protest cum complaint case which was registered as P.C.R. Case No. 65 of 2013 (the present one ) and after conducting the enquiry, learned court below passed the impugned order dated 06.06.2013.

4. As per the present protest cum complaint petition, the facts as alleged, in brief are that the O.P. No.2 was skilled mansion and used to take work on contract basis, whereas the petitioner was a registered contractor and used to take the contract for the construction of the building under different government schemes in the name of Maa Tara Infrastructure and Builders Pvt. Ltd. It has further been pointed out that the petitioner Rabin Singh and the co-accused Prashant Jena obtained a contract for construction of the Block Office Building at Fatehpur for which, they contacted the O.P. No.2 and entered into an agreement with him on 06.01.2011, by which, they agreed that they would supply all the material for construction of the building and the payment and part payment would be made as per the rate of the tender. Further, O.P. No.2 incurred expenditure of Rs.8, 76,119/- (Rupees Eight Lakhs Seventy-Six Thousands One Hundred and Nineteen only), out of which the accused persons paid Rs.2, 70,500/- (Rupees Two Lakhs Seventy Thousands Five Hundreds) only on 07.10.2011 and a sum of Rs.6, 05,619/- (Rupees Six Lakhs Five Thousands Six Hundred and Nineteen only) remained unpaid. Apart from the aforesaid dues amount, the accused persons has not paid the amount of Rs.10,00,000/- (Rupees Ten Lakhs only) for the construction of the ground floor and up to the Lintel level of the first floor of the building, and in this way, total amount of Rs.16,05,619/-

(Rupees Sixteen Lakhs Five Thousands Six Hundred and Nineteen only) remained unpaid by the accused persons to him and when he demanded the same, then the accused persons entered into a quarrel with him and drove him away and forcibly kept his centering materials and other equipments by force, worth rupees 2 Lakhs (Rupees Two Lakhs) and misappropriated the same for their own use and occupation and in this way, the petitioner allegedly cheated him and did not pay the amount of Rs.18,05,619/- in total (Rupees Eighteen Lakhs Five Thousands Six Hundred and Nineteen only) and thereafter, a legal notice was also served to the accused petitioner, but he did not give any reply.

5. The learned counsel appearing on behalf of the petitioner submitted that the above mentioned impugned order was bad in law and fit to be set-aside in view of the fact that the entire allegations were arising out of the agreement which is an admitted fact that it is a pure civil nature of dispute and no criminal offence, either under Sections 420 or 406/34 is made out and therefore the impugned order is fit to be set-aside.

6. On the other hand, the learned A.P.P. and the learned counsel appearing on behalf of the O.P. No.2 submitted that the learned trial court after receiving the protest petition, examined the enquiry witnesses namely Munna Ansari, Arif Ansari and B. Mandla and also examined the complainant Daud Ansari on S.A. and found prima facie cases against the petitioner and co-accused Prashant Dona for the offences punishable under Sections 406, 420 r/w 34 of the I.P.C. and took the cognizance in the aforesaid sections against the petitioner Rabin Singh and one Prashant Jena. It has been pointed out that the O.P. No.2 was skilled mansion and used to take work on contract basis, whereas the petitioner was a registered contractor and used to take the contract for the construction of the building under different government schemes in the name of Maa Tara Infrastructure and 4. Cr. M.P. No.1914 of 2013 Builders Pvt. Ltd. It has further been pointed out that the petitioner Rabin Singh and the co-accused Prashant Jena obtained a contract for construction of the Block Office Building at Fatehpur for which, they contacted the O.P. No.2 and entered into an agreement with him on 06.01.2011, by which, they agreed that they would supply all the material for construction of the building and the payment and part payment would be made as per the rate of the tender. A photo copy of the agreement dated 06.01.2011 was also annexed along with the counter affidavit, which has been marked as Annexure- B. It has further been submitted that O.P. No. 2 incurred certain expenditures out of which few were paid and few remained unpaid by the accused persons. It has been submitted that apart from the dues amount, the accused persons has not paid the amount of Rs.10,00,000/- (Rupees ten Lakhs only) for the construction of the ground floor and up to the Lintel level of the first floor of the building, and in this way, total amount of Rs.16,05,619/- (Rupees Sixteen Lakhs Five Thousands Six Hundred and Nineteen only) remained unpaid by the accused persons to him and when he demanded the same, then the accused persons entered into a quarrel with him and drove him away and forcibly kept his centering materials and other equipments by force, worth Rs.2,00,000/- (Rupees Two Lakhs) and misappropriated the same for their own use and occupation and in this way, the petitioner cheated him and did not pay the amount of Rs.18,05,619/- in total (Rupees Eighteen Lakhs Five Thousands Six Hundred and Nineteen only) and thereafter, a legal notice was also served to the accused petitioner, but he did not give any reply and in such a way, it is not a dispute of civil nature, rather, it is a cheating by inducement.

7. Having heard the learned counsels for the parties, perused the record of this case.

8. It is admitted case of the prosecution that the dispute between the parties arose out of an agreement, which is marked as Annexure -

B to the counter affidavit filed on behalf of the O.P. No.2. From perusal of the agreement, it is found that it was a contract executed between both the parties with respect to the construction of a Block Office Building at Fatehpur, Jamtara, Jharkhand. Further it is found that there was some dues amount of the O.P.No.2, which has not been fully paid by the accused petitioner and still some amount remained to be paid. In this view of the admitted position, it is found that this is a dispute purely of civil nature and no criminal offence of any dishonest or fraudulent intention or inducement is made out in order to constitute the offence punishable either under section 406 or 420 with the aid of section 34 of IPC.

9. From perusal of the statement of the complaint recorded on S.A., it has been admitted by the complainant (O.P. No. 2) that there had been an agreement between both the parties and there is a dues of Rs.1,00,000/- (Rupees One Lakh only) of labour charge and further it has been stated that the total amount dues against the accused persons is coming to Rs.18,00,000/- (Rupees Eighteen Lakhs only). Although, this witness has stated that the accused persons threatened him, but the learned trial court did not take cognizance for the alleged act of threat caused by the accused to the complainant. It is true that if the entire allegations are also taken to be true in its entirety on the face of it , even then it is a case of payment and non-payment of dues amount, which is arising out of the agreement as per the Annexure-B of counter affidavit filed on behalf of the O.P.No.2 where the petitioner is under obligation to discharge if any and it depends upon the actual statistical calculation of the constructed structure and the rate as set out in the aforesaid agreement consisting of Estimated Cost, Deduction, Rate Approved etc. and as such no offence of any fraudulent and dishonest intention or inducement or misappropriation of any kind of property entrusted to the accused in order to invoke the offence under Sections 420 or 460 of the I.P.C. is made out. It does not transpire that there has 6. Cr. M.P. No.1914 of 2013 been any deception or wilful act caused on the part of the accused petitioner and the O.P. No.2 was never deceived by the petitioner and if any amount is due, it is to be paid after the actual calculation arising out of the agreement dated 06.10.2011 and also the actual work done by the O.P. No.2 under the agreement and therefore there is no offence under Sections 420 and 406 of the I.P.C. is made out.

10. From perusal of the statement of other enquiry witnesses, namely P.W. 1- Munna Ansari, P.W. 2- Arif Ansari and P.W. 3- Sri Dhiren Mandal, by which, it has been stated that it is a dues amount arising out of the agreement, which has not been paid by the petitioner and therefore this case has been instituted and it is found that the learned court below has committed error in passing the impugned order dated 06.06.2013 by not appreciating the statement of the enquiry witnesses including the S.A. of the complainant O.P. No.2 by ignoring the fact that the entire dispute is arising out of the agreement, for which the payment is to be made as per the calculation and the construction and completion of work. It is also found that on earlier occasion, this O.P. No.2 had instituted P.C.R. Case No. 113 of 2012, which was referred under Section 156(3) of Cr.P.C., 1973 (hereinafter referred to as the Cr.P.C.) for institution of the F.I.R. and after investigation, the final report vide final report no. 17 of 2012 dated 01.07.2012 was submitted absolving all the accused persons indicating that it was a dispute of civil nature and no criminal offence was made out. Thereafter the complainant/O.P.No.2 having been dissatisfied and aggrieved with the final report filed the present protest-cum- complaint petition and on the basis of the protest cum complaint petition and after holding the enquiry, the present impugned order was passed.

11. This Court finds it very pertinent to mention here two judgments delivered by the Hon'ble Supreme Court on the aspect of giving criminal colour to the dispute of the civil nature. A similar facts 7. Cr. M.P. No.1914 of 2013 arose in the case of Thelapalli Raghavaiah v. Station House officer and Others, [(2007) 10 SCC 424], where the charges alleged against the accused were similar to the charges leveled against the petitioner at the present case at hand. In this case, the Hon'ble Supreme Court, while quashing the complaint against the accused observed and held that-

".... a case of criminal breach of trust may be both a civil wrong and a criminal offence but there would be certain situation where it would predominantly be a civil wrong and may or may not amount to a criminal offence. It was also observed that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is to whether the uncontroverted allegations as made prima facie established the offence."

Also, in the case of Binod Kumar and Others v. State of Bihar and Another, [(2014) 10 SCC 663], with similar facts to that of the present case pertaining to the alleged dishonest retaining and misappropriation of money, the Hon'ble Apex Court held that-

"To make out a case of criminal breach of trust, it is not sufficient to show that the money has been retained by the appellants. It must be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere facts that the appellants did not pay money to the complainant does not amount to criminal breach of trust"

Now, on appreciating the above two cases with the facts of the present case, it can safely be concluded that the basic ingredients of the offence of criminal breach of trust, dishonest and fraudulent intention ,misappropriation, cheating, viz. dishonest inducement, malafide intention etc. are missing in the allegation of the present case, and no prima facie criminal offence is drawn out from the facts of this case and the complaint primarily makes out a civil dispute relating to mere calculation of the construction work as per the approved rate arising 8. Cr. M.P. No.1914 of 2013 out of agreement and payment and repayment thereof. It is well settled principal of law that mere breach of contract is not itself a criminal offence and gives rise to civil liability of damages. And fraudulent or dishonest intention is the basis of the offence of cheating. In the present case the detaining of equipments as alleged by the complainant does not amount to either cheating or criminal breach of trust for the want of dishonest or fraudulent inducement or intention of misappropriation of any kind of property on the part of the accused petitioner, and thus, the entire reading of the complaint does not disclose any offence except a civil dispute between the parties for the payment or repayment of the dues amount.

12. And therefore, in view of the facts emerging from the evidences as discussed above, this Court finds that the impugned order passed is bad in law and fit to be set-aside.

13. In the backdrop, the impugned order passed against the petitioner in connection with P.C.R. Case No. 65 of 2013 including the order taking cognizance dated 06.06.2013 passed by Judicial Magistrate, 1st Class, Jamtara is quashed and this Cr.M.P. is allowed with respect to this petitioner.

(Navneet Kumar, J.) R.Kumar