Gauhati High Court
Lalit Kr. Banthia @ Jain vs The State Of Assam And Anr on 2 December, 2020
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GAHC010198652018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./904/2018
LALIT KR. BANTHIA @ JAIN
S/O- BINOD KR BANTHIA, R/O- ASHOK VIHAR, 317 G T ROAD,
BELURMATH, BALLY MUNICIPALITY, KOLKATA, WEST BENGAL- 711202
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:MANJIL SAIKI
Advocate for the Petitioner : MR. S K JAIN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 02-12-2020 Heard Mr. S.K. Jain, learned counsel for the petitioner. Also heard Ms. S. Jahan, learned Addl. P.P., Assam for the respondent No. 1, as well as Mr. G. Choudhury, learned counsel for the respondent No. 2.
By this petition under Section 482 CrPC, the petitioner sought to invoke the inherent jurisdiction of this court for quashing of the complaint lodged by the Page No.# 2/6 respondent No. 2 and the criminal proceeding in CR No. 326/2016 under Section 406/420/506 IPC.
Learned counsel for the petitioner Mr. S.K. Jain submits that the allegations made in the complaint do not reflect the ingredient of offence under Section 406/420 IPC and as such, the learned Magistrate ought not to have taken cognizance on the basis of the complaint impugned. To argue that the complaint did not disclose the ingredient of offence under Section 406/420 IPC, Mr. Jain placed reliance on the following decisions:
(2000) 4 SCC 168: Hridaya Ranjan Prasad Verma & Anr. Vs. State of Bihar & Anr.
(2005) 10 SCC 228: Anil Mahajan Vs. Bhor Industries Ltd. & Anr.
(2009) 3 SCC 78: V.Y. Jose & Anr. Vs. State of Gujarat & Anr.
(2010) 10 SCC 361: Indian Explosives Ltd. & Ors.
2010(2) GLR 425: Rajesh Sareen Vs. State of Assam & Anr.
2017 AIR (SC) 3656: Medmeme, LLC & Ors. Vs. Ihorse BPO Solutions Pvt. Ltd.
Mr. G. Choudhury, learned counsel for the respondent No. 2 contends that in a proceeding under Section 482 CrPC, court is not supposed to embark upon a roving enquiry as to the merit of the allegation, rather, court is to look into the broad allegation made therein. Mr. Choudhury, further contends that, the facts although, constitutes civil offence, does not debar criminal proceeding, inasmuch as, criminal proceeding and the civil suit can run together. To buttress his argument, Mr. Choudhury placed reliance on the following decisions:
(2009) 5 SCC 528: Syed Askari Hadi Ali Augustine Imam & Anr. Vs. State (Delhi Administration) & Anr.
(2015) 11 SCC 776: HMT Watches Ltd. Vs. M.A. Abida & Anr.
Page No.# 3/6 (2019) 3 GLR 503: Rehana Begum Vs. State of Assam & Anr.
2019 Legal Eagle 578: Sankar Biswas Vs. State of Assam & Anr.
The complainant filed the complaint before the court for taking cognizance of offence under Section 406/420/506/468/294 IPC as is apparent from the Annexure-II at page-23 of the petition and the learned Magistrate took cognizance under Section 420/406/506 IPC.
The law relating to quashing of a criminal proceeding at the threshold is by now well settled by a long line of decision including the lead case in State of Haryana Vs. Bhajan Lal reported in 1992 (suppl 1) SCC 335 as well as R.P. Kapoor Vs. State of Punjab reported in AIR 1960 SC 866, which have been continuously followed in the subsequent judgments of the Apex Court.
One of the basic principle for quashing a criminal proceeding at the initial stage is as to whether the allegations made in the FIR or complaint when taken in its entirety in its face value makes out any offence. If the allegation in the complaint/FIR makes out any offence, the High Court exercising power under Section 482 CrPC should stay its hand. For better appreciation of the allegation made in the complaint is reproduced below:
"Complainant is an educated unemployed youth, doing some contractual works as he has no any Govt job and present doing the contractual work of PWD road and Drainage as notified by the Government of Assam. As per the tender work order the complainant started working pakka road and both side drainage of 109 kilometre on 52 NH to Belsiri Railway Station, copy of the letter dated 14/05/2015 of the Government of Assam is annexed herewith. In the meantime, the complainant after issuing of, stones, sand, soil and roller work has telephonically asked the accused on several occasions though an agent of Asia Julie Tezpur in front of 1, 2 and 4 witnesses to supply of Bitomin.
And accordingly on 5/10/2015 the accused agreed to supply necessary Bitomin at the working place fixing a sum of rupees 5,85,000/- (Rupees five lakh eighty five thousand) and asked the complainant to deposit the aforesaid Page No.# 4/6 amount b RTGS in his account No. 61228666285, IFS Code number SBBJ0010486 before 10.10.2015. As the Bitomin was required so the complainant on 09/10/2015 as per the discussion and on good faith sent a total sum of rupees 5,85,000/- in the account number as given by the accused through Punjab National Bank, Tezpur branch in the account of M/S Sai Infra Traders, SBI Bikaner and Jaipur Shyam Bazar Branch.
The accused after having received money intimated over mobile phone to send a person namely Shri Sujit Boro at Srirampur gate number 5 after payment VAT and sales tax for gate pass for entering the loaded trucks in Assam, the complainant on the same day paid VAT and after preparation of GATE pass send Sujit Boro through Maruti Courier Serve Tezpur branch to Baksirhat Srirampur gate number 15 and the complainant waited for the arrival of Bitomin but on non reaching of Bitomin the complainant by mobile phone asked about delivery of goods, initially the accused assured the complainant to wait for some time and after a few days he assured to send Bitomin that day or tomorrow and failing of which the complainant compelled to serve an Advocate notice when the accused avoid to respond his mobile phone and to return the money. After having received of Advocate's notice the accused telephonically requested the complainant for 2/3 months time to return the money.
Thereafter on 25/-3/2016 the complainant along with 2 and 4 witnesses went to Kolkata and met the accused along with the witness number 3 and when we requested the accused to return the money to which he agreed to return the money within few days and same will send in complainant account. Because of simplicity of complainant he waited for some time and return back to Tezpur after giving responsibility to the witness number 3. And in the meantime complainant completed the work of road by purchasing Bitomin at higher rate from other place.
Thereafter after the month of bohag Vishnu when the complainant asked the accused over phone about the payment of the accused requested for some days and asked to wait for completion of election work. When the complainant contacted the witness number 3 he also said that the accused asked to wait for some days. On 20/5/2016 that is on last Friday when the Page No.# 5/6 complainant telephonically demanded the money from the accused then the accused used some slang language both in Hindi and Bengali and threatened that he will not return single penny and also threatened that if I go at Kolkata for money then he will kill the complainant and hide his dead body and threatened not to call again otherwise he will file case against him and also file a FIR before police by stating that you that the complainant being an ULFA demanded money and he will put the complainant in jail.
The accused cheated the complainant by breaking his trust and misappropriated the complainant money of Rs. 5,85,000/- now he also threatening the complainant."
A perusal of the above complaint would show that the complainant, who is a contractor had an arrangement with the petitioner, whereunder the petitioner agreed to provide bitumen to the complainant, for which the complainant allegedly paid Rs. 5,85,000/- by way of depositing through RTGS. However, later on, the petitioner failed to supply the bitumen, though the complainant paid the money in advance. When the bitumen was not supplied, the complainant made several request for repayment of the money. The complainant even met the petitioner at Kolkata to demand the money. Initially the petitioner took time for repayment on various pretext. When the money was not refunded and the complainant again demanded the money, the petitioner refused to pay and threatened him with dire consequence. It was also alleged, that if the complainant further insist for payment of money, he would be killed. Therefore, the allegations made in the complaint appear to be twofold. Firstly, it was alleged that the informant paid money for which the petitioner was to supply bitumen, but the petitioner did not supply the bitumen and the money was also refunded. The second allegation pertains to criminal intimidation, wherein it has been alleged that the petitioner refused to pay the money and also threatened that in case of further insistence by the complainant for payment of money, he would face dire consequence, even threatened to kill him.
Therefore, on the basis of the above allegation made in the complaint, even without commenting as to whether the complaint disclosed the ingredients of offence of cheating and criminal breach of trust, it is difficult to say that the complaint atleast Page No.# 6/6 did not disclose the offence of criminal intimidation. When a complaint discloses an offence and cognizance is taken for the same, quashing of proceeding at the threshold is not permissible.
Therefore having regard to the allegation made in the complaint, which atleast prima facie discloses the offence under Section 506 IPC, even without commenting on the existence of ingredients for offence under Section 420/406 IPC and the scope of interference with the criminal proceeding at the threshold in exercise of inherent power, it does not appear to be a fit case for invoking the inherent jurisdiction to quash the criminal proceeding.
Being of the above view, I find this petition to be devoid of merit. Accordingly, the petition stands dismissed.
JUDGE Comparing Assistant