Jharkhand High Court
Sushma Siroha @ Sushma @ Shushma Siroha vs The State Of Jharkhand on 20 March, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.1605 of 2023
With
Cr. M.P. No.1606 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1605 of 2023
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Sushma Siroha @ Sushma @ Shushma Siroha, age about- 54 years, wife of Vijay Kumar Siroha @ Vijay Kumar, resident of Plot No.-6, Ground Floor, Street- K-7.3, S.A.S. Arcadia, Sector- 83, P.O.- Signature Avenue, P.S.- Kherki Daula, Dist.- Gurgaon, Haryana ... Petitioner Versus
1. The State of Jharkhand
2. Amit Kumar Jalan, son of Sajjan Jalan, Partner of M/s Jagdamba Tractors, office at Palika Market, near Govt. Bus Stand, Ranchi-Patna Road, P.O. + P.S.- Sadar, Dist.- Hazaribagh, Jharkhand ... Opposite Parties With Cr.M.P. No.1606 of 2023
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Vijay Kumar Siroha @ Vijay Kumar @ Vijay Siroha, age about 56 years, son of Man Singh, resident of Flat No.-10, Ground Floor, Street G-5.1, Vatika India Next, Sector- 82, P.O.- Signature Avenue, P.S.- Kherki Daula, Dist.- Gurgaon, Haryana ... Petitioner Versus
1. The State of Jharkhand
2. Amit Kumar Jalan, son of Sajjan Jalan, Partner of M/s Jagdamba Tractors, office at Palika Market, near Govt. Bus Stand, Ranchi-Patna Road, P.O. + P.S.- Sadar, Dist.- Hazaribagh, Jharkhand ... Opposite Parties
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For the Petitioners : Mr. Santosh Kr. Soni, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl.P.P.
Mr. Bhola Nath Ojha, Addl.P.P.
Mr. Vineet Kr. Vashistha, Spl. P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
1
Cr. M.P. No.1605 of 2023
With
Cr. M.P. No.1606 of 2023
2. Since both these Criminal Miscellaneous Petitions have been filed with a prayer for quashing the common F.I.R., order taking cognizance and the entire criminal proceedings in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 of the court of the learned Chief Judicial Magistrate, Hazaribagh, hence, both these Cr.M.Ps. are disposed of by this common judgment.
3. Both these Criminal Miscellaneous Petitions have been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the common prayer for quashing the F.I.R, order taking cognizance dated 31.01.2023 and the entire criminal proceedings against the petitioners in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 whereby and where under the learned Chief Judicial Magistrate, Hazaribagh has taken cognizance for the offences punishable under Sections 420, 406, 467, 468, 471 of the Indian Penal Code and the said case is now pending in the court of learned Chief Judicial Magistrate, Hazaribagh.
4. The brief facts of the case is that the petitioner of Cr.M.P. No.1606 of 2023 namely Vijay Kumar Siroha @ Vijay Kumar @ Vijay Siroha is the Managing Director of M/s McRaygor Mechanicals Private Limited and the petitioner of Cr.M.P. No.1605 of 2023 namely Sushma Siroha @ Sushma @ Shushma Siroha is the Director of the said M/s McRaygor Mechanicals Private Limited. The allegation against the petitioners of both these cases is that they received a purchase order from their customers for purchase of Sewerage Disposal System of 5000 litre capacity mounted on TATA LPT 909 truck. On enquiry, the informant came to know that Mr. Vijay Kumar Siroha claims to have supplied more than 1000 such machines in different cities of India and abroad as per 2 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 information available on his website at www.Mcraygor.com. On being approached by the informant, Mr. Vijay Kumar Siroha induced the informant to pay him Rs.9,00,000/- as advance for supply of such machines. After making the informant to believe that M/s McRaygor Mechanicals Private Limited has supplied more than 1000 such machines in different cities of India; Vijay Kumar Siroha issued a bill of such Sewerage Disposal System mounted on truck which chassis number and engine number and also handed over the copy of the invoice of one Balaji Motors purported to be the authorized dealer of Tata Motors and further induced the informant to pay Rs.6,25,000/-. It is alleged that the petitioners did not deliver the said Sewerage Disposal System mounted on truck till second week of April, 2015. Later on the petitioner Vijay Kumar Siroha assured the informant that he has dispatched the truck as ordered by the informant with Sewerage Disposal System mounted on the truck of the chassis Tata Model LPT 909 and also sent an invoice of one Balaji Motors but the informant on an inquiry found that the same is a forged document as there is no dealer of Tata Motors in Bahadurgarh or even in the entire state of Haryana and the TIN Number shown in the invoice of Balaji Motors was found to be forged. It is also alleged that the petitioner Vijay Kumar Siroha being the Managing Director and the petitioner Sushma Siroha being the Director of the said M/s McRaygor Mechanicals Private Limited, with an intention to cheat and to misappropriate the huge amount of money belonging to the complainant; by hatching out a plan, committed the said offence and have defrauded the informant.
5. Learned counsel for the petitioners submits that subsequently the petitioners issued a cheque of Rs.17,25,000/- which was dishonoured and for 3 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 the same, the informant has filed Complaint Case No.1767 of 2015 in the court of learned Chief Judicial Magistrate, Hazaribagh. Learned counsel for the petitioners relies upon the order of the Hon'ble Supreme Court of India in the case of Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao & Another reported in (2011) 2 SCC 703 wherein in the facts of that case when the appellant before the Hon'ble Supreme Court of India was already convicted for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881, the Hon'ble Supreme Court of India held that the trial of the same appellant on the same facts again for the offence punishable under Section 420 of the Indian Penal Code is not maintainable.
6. Learned counsel for the petitioners next submits that as for the dishonour of the cheque, the informant has already filed Complaint Case No.1767 of 2015, so, his simultaneous prosecution for this case for the offences punishable under Sections 406, 420, 467, 468, 471 of the Indian Penal Code is not maintainable. It is next submitted that there is not a single allegation against the petitioner Sushma Siroha and she has been implicated in this case only because she is the Director of M/s McRaygor Mechanicals Private Limited and all the transactions have been made with the petitioner Vijay Kumar Siroha. It is next submitted that the payment of money was in connection with the business transaction between the parties. Hence, the offence punishable under Sections 406 or 420 of the Indian Penal Code is not made out. In support of his contention, learned counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court of India in the case of Mitesh Kumar J. Sha vs. The State of Karnataka & Others reported in (2022) 14 SCC 572 paragraphs-26 and 36 of which read as under:-
4 Cr. M.P. No.1605 of 2023
With Cr. M.P. No.1606 of 2023 "26. In the instant case, the complaint levelled against the appellants herein is one which involves commission of offences of criminal breach of trust and cheating. While a criminal breach of trust as postulated under Section 405 of the Penal Code, 1860, entails misappropriation or conversion of another's property for one's own use, with a dishonest intention, cheating too on the other hand as an offence defined under Section 415 of the Penal Code, 1860, involves an ingredient of having a dishonest or fraudulent intention which is aimed at inducing the other party to deliver any property to a specific person. Both the sections clearly prescribed "dishonest intention", as a precondition for even prima facie establishing the commission of the said offences. Thus, in order to assess the relevant contentions made by the parties herein, the question whether actions of the appellants were committed in furtherance of a dishonest or fraudulent scheme is one which requires scrutiny.
Whether sale of excess flats even if made amounts to a mere breach of contract?
36. This Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] , has observed : (SCC p. 177, para 15) "15. ... that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise."
and submits that as the petitioners had no intention to cheat since the beginning, hence, no offence is made out against them.
7. Learned counsel for the petitioners next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Deepak Gaba & Others vs. State of Uttar Pradesh & Another reported in (2023) 3 SCC 423 paragraph-17 of which reads as under:-
"17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 IPC. The complaint does not directly refer to the ingredients of Section 405 IPC and does not state how and 5 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 in what manner, on facts, the requirements are satisfied. Pre- summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405 IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405 IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406 IPC."
and submits that a mere wrong demand or claim would not meet the conditions specified under Section 405 of the Indian Penal Code in the absence of any evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust.
8. Learned counsel for the petitioners next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Vesa Holdings Private Limited & Another vs. State of Kerala & Others reported in (2015) 8 SCC 293 paragraph-13 of which reads as under:-
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the 6 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
and submits that as the allegations do not disclose the criminal offence of cheating and in the absence of any allegation that at the very inception there was any intention of the accused persons to cheat; which is a condition precedent for an offence punishable under Section 420 of the Indian Penal Code, the learned Chief Judicial Magistrate, Hazaribagh committed an illegality in taking cognizance of the said offence.
9. It is next submitted that the bill annexed with the F.I.R. of Balaji Motors nowhere states that Balaji Motors is an authorized dealer of Tata Motors. Hence, no forgery has been committed by the petitioners. It is lastly submitted that the F.I.R, order taking cognizance dated 31.01.2023 and the entire criminal proceedings against the petitioners in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 which is now pending in the court of learned Chief Judicial Magistrate, Hazaribagh, be quashed and set aside.
10. Learned Spl.P.P. and the learned Addl.P.P. appearing for State vehemently oppose the prayer of the petitioners to quash and set aside the F.I.R, order taking cognizance dated 31.01.2023 and the entire criminal proceedings against the petitioners in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 which is now pending in the court of learned Chief Judicial Magistrate, Hazaribagh and submit that the fact remains undisputed by the petitioners that the petitioners were to supply Sewerage Disposal System mounted on the Tata LPT 909 truck. The petitioners claim that they have dispatched the truck as ordered by the 7 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 informant with the invoice of Balaji Motors bearing the chassis number and engine number of obviously the Tata LPT 909 truck as it is not the case of the petitioners that they mounted the Sewerage Disposal System on the truck of any other make than that of Tata Motors, so, obviously it is crystal clear that unless Balaji Motors is an authorized dealer of Tata Motors it could not have sold the chassis of Tata LPT 909 truck. So, whether or not in the invoice the word 'Dealer of Tata Motors' has been mentioned or not that will not absolve the petitioners of committing the offence of forgery by creating a false document in shape of the invoice purported to be one issued by the dealer being the non-existent Balaji Motors in Bahadurgarh of Haryana; more so because the undisputed fact remains that the TIN number mentioned in the said bill is a forged one and this allegation is sufficient to constitute the offences punishable under Sections 467, 468, 471 of the Indian Penal Code.
11. Learned Spl.P.P. and the learned Addl.P.P. appearing for State rely upon the judgment of the Hon'ble Supreme Court of India in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Another reported in (2012) 7 SCC 621 paragraphs-37 to 39 of which read as under:-
"37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.
38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a 8 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary.
39. There may be some overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions."
and submit that for the prosecution, under Section 138 of the Negotiable Instrument Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant and the offence punishable under Section 420 IPC is a serious one in which case sentence of 7 years can be imposed. Hence, the subsequent case is not barred by any statutory provision.
12. It is next submitted that moreover this case involves the offence of forgery in its different variations as is punishable under Section 467, 468 and 471 of the Indian Penal Code which has got nothing to do with the case involving the offence punishable under Section 138 N.I. Act, 1881. Hence, merely because the informant filed Complaint Case No.1767 of 2015, this case is not barred.
13. It is next submitted that the facts of the cases, the judgments of which were relied upon by the learned counsel for the petitioners, are entirely different from the facts of this case as in none of those cases the offences related to forgery under Sections 467, 468, 471 of the Indian Penal Code, are involved. Here, the very fact that the petitioners committed the forgery for the purpose of cheating; by itself establish that they had the intention to defraud and cheat the informant since the beginning of the transaction by falsely claiming in their website as well as in their meeting with the informant that they supplied more than 1000 pieces of Sewerage Disposal System mounted on the trucks which 9 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 was also false. Hence, it is submitted that as the allegations made in the F.I.R., the materials collected during the investigation of the case and the charge-sheet are sufficient to establish the offence punishable under Sections 406, 420, 467, 468, 471 of the Indian Penal Code. Hence, it is submitted that these Criminal Miscellaneous Petitions, being without any merit, be dismissed.
14. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds that there is direct and specific allegation against the petitioners of cheating and thereby dishonestly inducing the informant to part with Rs.17,25,000/- and thereafter committing forgery by creating false documents and false invoice of the chassis of the truck upon which the Sewerage Disposal System was mounted apparently to hide their offence punishable under Sections 406 and 420 of the Indian Penal Code and ultimately issued a cheque knowing pretty well that the same will be dishonoured. In view of the judgment of the Hon'ble Supreme Court of India in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Another (supra), this Court has no hesitation in holding that keeping in view of the nature of allegations made in the F.I.R. as well as the allegations made in Complaint Case No.1767 of 2015, the continuation of this F.I.R. involving inter alia the offences relating to forgery punishable under Sections 467, 468, 471 of the Indian Penal Code besides the offences punishable under Sections 406 and 420 of the Indian Penal Code is not a bar when the Complaint Case No.1767 of 2015 is still pending.
15. Now, coming to the contention of the petitioners that there is no allegation against the petitioner Sushma Siroha, perusal of the record reveals that there is direct and specific allegation against the said petitioner- Sushma 10 Cr. M.P. No.1605 of 2023 With Cr. M.P. No.1606 of 2023 Siroha as well that she being in capacity of the Director of M/s McRaygor Mechanicals Private Limited, was also having the intention of cheating since the beginning and has defrauded the informant of huge amount of Rs.17,25,000/-.
16. Under such circumstances, this Court is of the considered view that if the allegations made in the F.I.R., materials collected during the investigation of the case and the charge-sheet, when are considered to be true in their entirety then the offences alleged against the petitioners are made out against them. As has rightly been submitted by the learned Spl.P.P. and the learned Addl.P.P. appearing for State that the facts of judgments relied upon by the learned counsel for the petitioners are entirely different from the facts of this case as in those cases there was no allegation of commission of offences of forgery punishable under Section 467, 468 and 471 of the Indian Penal Code.
17. It is a settled principle of law that the High Court in exercise of its inherent power under Section 482 of Code of Criminal Procedure should not stifle a legitimate prosecution as has been held by the Hon'ble Supreme Court of India in the case of Monica Kumar (Dr.) & Another vs. State of Uttar Pradesh & Others reported in (2008) 8 SCC 781.
18. Under such circumstances, this Court is of the considered view that these are not fit cases where the prayer of the petitioners to quash and set aside the F.I.R, order taking cognizance dated 31.01.2023 and the entire criminal proceedings against the petitioners in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 which is now pending in the court of learned Chief Judicial Magistrate, Hazaribagh, be allowed.
11 Cr. M.P. No.1605 of 2023
With Cr. M.P. No.1606 of 2023
19. Accordingly, the prayer of the petitioners to quash and set aside the F.I.R, order taking cognizance dated 31.01.2023 and the entire criminal proceedings against the petitioners in connection with Sadar (Hazaribagh) P.S. Case No.755 of 2016 corresponding to G.R. No.2522 of 2016 which is now pending in the court of learned Chief Judicial Magistrate, Hazaribagh, is rejected.
20. In the result, both these Criminal Miscellaneous Petitions are dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 20th of March, 2024 AFR/ Animesh 12