Jharkhand High Court
Rajan Choudhary vs The State Of Jharkhand on 24 April, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. No. 1676 of 2012
Rajan Choudhary ...... Petitioner
Versus
1.The State of Jharkhand
2. Prabhat Kumar Choudhary ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Nilesh Kumar, Advocate
Ms. Sonal Sodhani, Advocate
For the State : Mr. Santosh Kr. Shukla, Advocate
For the O.P. No.2 : Mr. Aashish Kumar, Advocate
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08/Dated: 24/04/2023
Heard Mr. Nilesh Kumar, learned counsel for the petitioner, Mr. Santosh Kr. Shukla, learned counsel for the State and Mr. Aashish Kumar, learned counsel for the O.P. No. 2.
2. This petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 21.09.2011 passed in Complaint Case No. 538 of 2011, pending in the Court of learned Judicial Magistrate, Ranchi.
3. The complaint petition has been filed alleging therein that the complainant/O.P. No. 2 is the Managing Director of M/s Makan Developers (I) Pvt. Ltd., a company incorporated under the Companies Act, 1956 having its registered office at Patna Super Market, Fraser Road, Patna-800001. It deals in construction-cum development work in Bihar as well as in Jharkhand.
That on the inducement of accused No.1 who made many specious offers to the complainant, he started construction and building works in the year 2008 at Ranchi. As the Complainant needed an office at Ranchi, accused No.2 offered a house for office purpose, which he fully furnished with costly items computers, A.C. and fittings etc., and on the request of accused No. 1, he was made Incharge of the office and work site as well. He spent about Rs.3.50 2 Lakhs in furnishing the office. Before opening the office as a Memorandum of lease was executed by accused No.2 on 15.9.2008 in favour of the complainant's company.
That in the above memorandum, it was clearly agreed to by the parties that the shop room (office) shall be on a monthly rent of Rs. .8000/- per month belonging to accused No. 2. The plan of the Company was to construct two block A and B under the name and style of R.P. Singh Enclave, each comprising of 12 flats and 10 flats of Block No. A was to be handed over to Majan Construction and Dr. Amar, who were land owners.
That on 15.12.2007, both the accused persons contacted the complainant at the site, when they induced him by saying that they shall look after the works and that accused No.1 would be authorised and empowered to sign" any Agreement, issue receipts and receive payments" on behalf of the Complainant. He also undertook to maintain the Books of Accounts, which the complainant shall have the right to verify it every three months. The accused no. 1 further told the complement that the net profit, after meeting the cost of constructions and administrators expenses, shall be divided as shares of the parties.
It was further stated by accused so.1 that the Complainant shall have 75% of the share of total net profit and accused no.1 shall have 25% of it. The complaint was totally taken by the words of accused persons and he agreed to the proposal and accordingly, accused to.1 began to oversee the construction work and accused to.2 to look after. Accordingly the construction work was started in presence of the Complainant in the month of June, 2008. After six months, the accused persons surreptitiously started their own firm under the name and style as " M/s. Choudhary Cement at Ranchi. Accused No.1 opened an account in the name of his firm in AXIS Bank Ltd., vide A/C No. 1060102 000018692, The accused no. 1 thereafter, used to demand cheques 3 from the complainant in the name of M/s. Choudhary Cement, Believing him, the complainant used to send the cheques as asked by accused No.1. It continued till August, 2009, all to the tune of Rs.18.00 lakhs (approx.).The complainant, in the meantime began to get reports that the accused persons were committing fraud on him. Immediately, he came to Ranchi in the last week of August, 2009, where he was shocked to learn that he was being cheated by the accused persons. He also came to learn that the accused persons had handed over three flats to his brother Santosh Kumar, sister Anmola Choudhary and one Pankaj Kumar without his consent. Accused No.1 gave them the flats without receiving any consideration amount in favour of Complainants firm, all worth Rs.50 lacks when it was pointed out, they began to give lame excuses.
That greatly disappointed and in a state of mental depression, he returned to Patna and sent a notice to accused No. 1, but in vain. The complainant came to Ranchi and he got published public notice in the local newspaper Hindustan and Hindustan Times on 28.9.10, in which, he informed "that Shri Rajan Choudhary is no more authorised person of M/s. Makan Developers (I) Pvt. Ltd. Anybody dealing with Sri Rajan Choudhary in connection with M/s. Makan Developers Pvt. Ltd. will do so at his own risk and responsibility".
That soon after the publication of the above notice, accused no. 1 and 2 dishonestly removed all the office fittings, A.Cs, Computer, Printer and Book of Accounts etc., all worth Rs. 3.5 lacs.
That when the complainant asked the accused persons about it and sought the accounts of all the money given to him through cheques, he produced few papers showing the details of expenditure made by him during the period in question.
That on verification, all the papers given by him were found to be 4 forged and fudged. Rs.18.00 Lakhe was shown to be in the Account of Choudhary Cement. It is stated that there is no firm in the name of " M/s.Choudhary Cement" in B.K. Sahay Compound, St. Anne School Lane, Tharpakhna, Ranchi and the address of the firm was found to be fake and fictitious. The complainant again met the accused persons and demanded back his money but they not only refused to do it and also told him that they have great clout with the police and no harm can be done to them, they also threatened them with dire consequences in case he pursued the matter. The intention of the accused persons, from very beginning was to cheat the Complainant and had he known it, he would never have assigned the duty of overseeing the construction work as a Junior Partner at Ranchi.
That the day before yesterday, complainant went to the Sadar Police Station and reported the matter to them, but they refused to register any case, obviously under the influence of the accused person.
4. Mr. Nilesh Kumar, learned counsel for the petitioner submits that the petitioner and O.P. No. 2 have entered into a partnership agreement executed on 05.12.2007. He submits that in para 12 of the solemn affirmation the O.P. No. 2 has disclosed that agreement has been terminated on 28.09.2010 through notice in the Newspaper. He submits that in para 16 of the solemn affirmation the O.P. No. 2 has disclosed that account has not been settled. He further submits that the petitioner has already filed Title Suit No. 524 of 2010 on 29.11.2010 against the O.P. No. 2 and thereafter the present complaint has been filed on 04.04.2011. He further submits that for the civil dispute criminal case has been filed.
5. Mr. Aashish Kumar, learned counsel for the O.P. No. 2 submits that a sum of Rs. 18 lakhs have been defalcated by the petitioner for that complaint has been filed. He submits that the learned court after going through the solemn affirmation and enquiry witnesses has rightly taken cognizance. He 5 submits that there is no illegality in the cognizance order.
6. In view of above submission of the learned counsel for the parties, the Court has gone through the contents of the complaint as well as order taking cognizance and finds that admittedly there is partnership agreement between the parties executed on 05.12.2007. In para 12 of the solemn affirmation the O.P. No. 2 has disclosed that agreement has been terminated on 28.09.2010 by giving notice in the newspaper. In para 16 of the solemn affirmation the O.P. No. 2 has disclosed that account has not been settled. A Title Suit No. 524 of 2010 has been already been filed by the petitioner on 29.11.2010 against the O.P. No. 2 and thereafter the present complaint has been filed on 04.04.2011. The case is arising out of partnership agreement. There are parameters of settling the accounts and without following the procedure, criminal case has been filed. A civil case has already been filed by the petitioner. It is well settled that civil and criminal case can go simultaneously if criminality is made out however, in the present case no criminality is made out. The case is arising out agreement and the said agreement was terminated and for settling of account, the criminal case has been field.
7. In view of above facts, reasons and analysis, entire criminal proceeding including order taking cognizance dated 21.09.2011 passed in Complaint Case No. 538 of 2011, pending in the Court of learned Judicial Magistrate, Ranchi, is quashed.
8. This petition is allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.) Satyarthi/