Jharkhand High Court
Brigadier Nasib Singh Rana & Ors vs Union Of India Thr Central Bur on 5 July, 2013
Author: R.R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.768 of 2011
1.Brigadier Nasib Singh Rana
2.Lt. Col, Amrik Singh Bawa
3. Col. Govind Narayan Rampal................Petitioners
VERSUS
Union of India through C.B.I.............. Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners:Mr.R.S.Mazumdar, Sr. Advocate
For the C.B.I : Mr. M. Khan, Advocate
9/ 05.07.13. Heard learned counsel appearing for the petitioners and learned counsel appearing for the C.B.I. This application is directed against the order dated 28.5.2012 whereby learned Judicial Magistrate, C.B.I, Dhanbad has framed charge against the petitioners under Section 120(B) read with Sections 420, 468, 471 of the Indian Penal Code.
Learned counsel appearing for the petitioners submits that it is the case of the prosecution that Directorate General Resettlement, Government of India had entered into an agreement with the coal company, M/s. B.C.C.L whereby it was agreed that only those companies run by the ex-servicemen should be deployed for loading and transporting coal who would be employing ex-servicemen and civilian in the ratio of 75% : 25% and that they would not be using pay-loaders and trippers. Accordingly, M/s. Sidhi Coal Carriers Pvt. Ltd. was awarded work for carrying coal from the stockyard to Railway Siding but it never deployed ex-servicemen in the ratio agreed upon, rather used pay-loaders and trippers for carrying coal which was against the terms and conditions. Further it has been alleged that the company showed the names of ex-servicemen in the biennial report but in fact, they had not employed them. Thereby these petitioners, who happen to be the Directors of M/s. Sidhi Coal Carriers Pvt. Ltd. have been alleged to have gone in conspiracy with employees of coal company along with other accused persons and committed act of forgery for cheating. On such allegation case was registered.
On investigation, charge sheet was submitted, upon which cognizance of the offences punishable under Sections 120(B) read with Sections 420, 468 and 471 of the Indian Penal Code was taken against the petitioners and others. Subsequently, charges were framed vide order dated 28.5.2012 which is under challenge.
Mr. Mazumdar, learned Sr. counsel appearing for the petitioners submits that whatever agreement was there, it was in between the Directorate General Resettlement and the Coal Company, M/s. B.C.C.L with respect to deployment of carrier company. If carrier company did breach the conditions of memorandum of understanding, then in the terms of MOU the contract would be liable to be terminated, there would be withdrawal of payment of bills and forfeiture of security deposit. But there has been no contemplation for criminal prosecuting for the earring person and thereby any prosecution of the petitioners would be quite illegal.
Learned counsel further submits that in any event, no offence is made out under Section 420 as it has never been the case of the C.B.I that any of the party was put to loss in any manner on account of non-adherence of the conditions of memorandum of understanding entered into in between the coal company and the Directorate General Resettlement.
As against this, Mr.M. Khan, learned counsel appearing for the C.B.I. submits that during investigation, it got transpired that these petitioners had never adhered to the condition of the memorandum of understanding whereby the petitioners' company was supposed to employ ex-servicemen and civilians in the ratio of 75% : 25%. Not only that in the biennial report of the company to which the petitioners are the Directors, the names of ex-servicemen were shown to have been deployed but in fact, those ex-servicemen had never been deployed for transportation of coal and thereby the petitioners not only committed offence of cheating but also forgery.
Learned counsel further submits that in this case five witnesses have already been examined and therefore, at this stage, the court should not interfere with the order framing charge.
In support of his submission, a decision rendered in a case of Achint Kumar Lal @ Achinta Kumar Lal vs. State of Bihar through C.B.I, Patna [2009 (4) East Cr.C .104 (Pat)] has been referred to. Having heard learned counsel appearing for the parties, it does appear that as per the terms and conditions the petitioners' company was required to employ ex-servicemen and civilian in the ratio of 75% : 25% for taking services from them of loading and transporting of coal but it did not deploy in that ratio but in the biennial report it was shown that requisite numbers of ex-servicemen had been deployed but in fact they had not been deployed. In such situation, the trial court has rightly framed charges under Sections 468 and 471 of the Indian Penal Code and also under Section 120(B) read with Section 468 and 471 of the Indian Penal Code.
So far the offence punishable under Section 420 of the Indian Penal Code is concerned, I do not find any material constituting offence under Section 420 of the Indian Penal Code.
The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as under:
"Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat".
From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating.
(1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived.
(3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.
Thus, the first element necessary for constituting offence of cheating is deception. Unless there is deception, offence of cheating never gets attracted and that too deception should be right from the beginning of the contract. Nothing seems to be there to show that the petitioners had practiced deception at the time of entering into the contract. Furthermore it never happens to be the case of the prosecution that on account of M/s.B.C.C.L being deceived, M/s. B.C.C.L suffered damages or loss and thereby third ingredients are also lacking.
In such situation, I do not find any offence under the facts and circumstances being made out under Section 420 of the Indian Penal Code and therefore, that part of the order whereby charge has been framed under Section 420 of the Indian Penal Code and under Section 420 read with Section 120(B) is hereby quashed.
So far other parts of the order framing charge for other offences as stated above are concerned, it never seems to have suffered from any illegality.
So far the decision referred to on behalf of the C.B.I. is concerned, it does appear that the Patna High Court has never held that once upon framing of charge witnesses are examined then the court in exercise of power under Section 482 of the Code of Criminal Procedure cannot interfere with the impugned order, rather it has simply been opined that it would be one of the circumstances to consider as to whether the order framing charge can be interfered with or not.
In the result, this application is allowed but in part.
(R.R. Prasad, J.) ND/