Jharkhand High Court
Rajiv Mundhra vs The State Of Jharkhand on 16 August, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 250 of 2023
1. Rajiv Mundhra
2. Goutam Kar
3. Gopal Bera
4. Debabrata Chatterjee
5. Sanjib Kundu @ Sanjiv Kundu
6. Prasanta Kumar Biswas @ Psanta Biswas @ Prashant Biswas
7. Vikash Kumar Pandey @ Vikash Pandey
8. Ajay Sony Singh ...... Petitioners
Versus
1.The State of Jharkhand
2. Bimal Kumar Modi
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Indrajit Sinha, Advocate
Mr. Ajay Kumar Sah, Advocate
For the State : Mr. Deepankar Roy, Advocate
For the Resp. No.2 : Mr. Jitendra S. Singh, Advocate
Mr. Avilash Kumar, Advocate
Mr. Sahil, Advocate
.................
06/Dated: 16/08/2023
Heard Mr. Indrajit Sinha, learned counsel for the petitioners, Mr. Deepankar Roy, learned counsel for the respondent-State and Mr. Jitendra S. Singh, learned counsel for the respondent no. 2.
2. This petition has been filed for quashing the entire criminal proceedings as well as F.I.R. in connection with Telaiya P.S. Case No. 79 of 2023 dated 18.03.2023 registered for the offence under sections 419, 420, 467, 468, 406 and 120B of the Indian Penal Code, pending in the Court of learned Chief Judicial Magistrate, Koderama.
3. The F.I.R. has been lodged alleging therein that the informant namely Mr. Vimal Kumar Modi is Director of Astro Remedy Pvt. Ltd., and states that Jharkhand State Building Construction Corporation Limited (Govt. of Jharkhand), assigned a work order to Simplex Infrastructure Limited, for construction of Karma Medical College and upgradation of District Hospital Koderma, and the responsibility for carrying out the Work and to look after the maintenance work was with Executive Engineer, Project Execution Unit, which office is situated above the Divisional Bhawan near Subhash Chowk. Some of the Work out of the works received by the Simplex Company was 2 also assigned to informant. Since 20.01.2022 the company by hatching conspiracy, Committing cheating, concealed the fact that according to the agreement of the department work can be assigned only to two contractors on sub-contract basis and even for this purpose it is necessary to obtain order of the senior officer, but the company by playing fraud with other persons allotted works to informant and also to Aman Enterprises Ranchi, M/s M.s. Zafar Ranchi, Aloma Technology Pvt. Ltd., Ranchi, Ekme Infracity Pvt. Ltd., Chatra A.K. Construction, M/s Sambhu Kumar, Sarf Infacity, Rahul Constructions, M/s Ajit Kumar Burnwal, DUKB Infra Project Pvt. Ltd., Goa, NM PSPCS(JV) and it was written at the top that bill amount shall be cleared to all of you within a period of 15 days and all the persons carried the work totaling worth of Rs 5.50 Crore. The payment qua the work carried was not cleared by the Corporation due to non-completion of work by the company in time and by removing them from the work the payment of Rs 5.50 Crore was forfeited as penalty and at our request when the Bhawan Nirman Nigam made enquiry through its letter from Simplex Company that whether you gave work to different persons on sub-contract then the company denied the same in writing, therefore, they under conspiracy have played fraud with Bhawan Nirman Nigam and us, thereafter the Bhawan Nirman Nigam Limited expressed their inability to even think for making payment to us. On demanding the payment for the work carried by us which payment comes to around Rs. 65,63,001.988, in lieu of which they by playing cheating, sent a bill of Rs.33,75,144.00 to the informant through Psanta Biswas, Assistant. Manager, Commercial Simplex Company whose Mobile No. is 9734201949. By doing so with all of us, they by reducing all the bills to half sent mail through Psatna Biswa. On asking for clearing the payment, the company denied to make the payment and did not give any time for making payment. On non-making payment, the lenders are insisting for payments and have filed cases due to which we are under extreme mental distress, and facing economical crisis, social pressure. Whenever we raised the issue for our payment to the representatives of the company then they by showing their influences and resources procrastinated the matter and threatened to ruin us if cases are filed against them. Ultimately on 16.2.2023, Mr. Vikash Pandey, Senior Manager, whose 3 Mobile No. is 9674033999 after discussing with the Sub- Contractors of Koderma side furnished an affidavit in the presence of the police that within a period of 03 weeks the competent officers of the company shall visit Koderma and discuss about the issue of payment and that if this meeting could not be organized then the company shall be legally guilt. Thereafter the informant came to know that to avoid payment and above meeting, Mr. Ajay Sony Singh, Assistant Manager of the company placed an application before the Superintendent of Police, in which it was alleged that Mr. Vikash Pandey and Mr. Vikash Kumar got the affidavit forcibly sworn in by abducting them at gun point, whereas no such incidence had occurred. They have furnished the affidavit in the presence of the police, which summarily exposes that the company to avoid its responsibility to make the payment and intends to implicate the Sub-Contractors in false cases at the strength of its resources. Even prior to this, they have already filed complaints against three persons under conspiracy. Since, very beginning the Simplex Company wanted to usurp the money of the Sub-Contractors, for which they by infringing the agreement entered with the Bhawan Nigam, furnished fictitious bill so that they shall have not to make payment to us. Apart from it, since, very beginning the company is involved in extending different kinds of threat and torture us so that we may skip our claim for payment and the company is attempting to implicate us in false cases. The Directors of the Company namely Mr. Rajiv Mundhra with the help of Mr. Gautam Kar conspired and got the agreements executed with informant and other contractors. Mr. Sanjib Kundu got the work done by keeping them in dark. Mr. Prasanta Biswas sent forged bills. Mr. Gopal Bera and Mr. Debabrata Chatterjee, wrongly assured that they will arrange a meeting from time to time. Mr. Vikash Pandey and Mr. Ajay Sony Singh, aged about 42 years have given false complaints to the police.
4. Mr. Indrajit Sinha, learned counsel for the petitioners placed the contents of the F.I.R. and submits that allegations made therein do not make out case of criminal offence even prima facie. He submits that even if allegations are taken to be true in its entirety, at best relates to the alleged non-payment of work done by the informant arising out of contract entered between the company and the informant 4 which by no stretch of imagination can be formed the basis of a criminal prosecution that too when the company has not been made accused in this case. He submits that on the date of filing of the complaint for the recovery of the alleged sum no civil proceedings have been filed by the informant for recovery of the alleged due amount and, hence filing of the complaint is nothing but abuse of the process of law and this Court may interfere with the matter. He submits that in view of complaint the amount has not been paid to the petitioners and a sum of Rs. 5.5 Crore has already been forfeited by the government and the same has been challenged by the petitioners in W.P.(C) No 5897 of 2022 which is still pending in this Court. He submits that if from very beginning if the inception is not there the case of cheating is not made out hence moreover, there is disputed question of claim to be paid to the petitioners by the informant and in view of that this Court may interfere. To buttress this argument he relied in the case of "Vijay Kumar Ghai and Others" Vs. State of West Bengal and Others" (2022) 7 SCC 124. He refers to para 38 of the said judgment which is quoted here-in-below:-
"38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by 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] , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants."
Relying on the said judgment, he submits that the entire criminal proceeding may kindly be quashed.
5. Learned counsel for the petitioners further submits that this matter is arising out of contract and non-payment of bill and other such things are there the High Court is competent to quash the F.I.R. He relied in the case of "Binod Kumar and Others Vs. State of Bihar and Another" (2014) 10 SCC 663. He refers to para 12 of the said judgment which is quoted here-in-below:-
"12. Coming to the facts of this case, it is no doubt true that the dispute relates to the non-payment of bill amount of Rs 34,505 pertaining to the contract executed by Respondent 2. It is also pertinent to note that Respondent 2 preferred CWJC No. 5803 of 1999 wherein an order dated 5-4-2000 [Mukesh Prasad Singh v. Tilka Manjhi Bhagalpur University, 2000 SCC OnLine Pat 388 : (2000) 3 PLJR 734] was passed by the Patna High Court directing the Vice-Chancellor of Bhagalpur University to release the balance amount of Rs 34,505 with interest @ 18% w.e.f. 1- 10-1994 till the date of payment and pay the interest @ 11% on the sum of Rs 14,000 from 1-10-1994 till 9-12-1996. Aggrieved by the said order, Bhagalpur University 5 preferred LPA No. 716 of 2000 wherein it was directed [Tilka Manjhi Bhagalpur University v. Mukesh Prasad Singh, LPA No. 716 of 2000, order dated 17-8-2000 (Pat)] that since it was not a statutory contract, no direction for payment of money could be issued and Respondent 2 can pursue other remedies available in law for the recovery of money. Aggrieved by the said order, Respondent 2 filed SLP (C) No. ... CC No. 4832 of 2001 which was dismissed as withdrawn by this Court by the order dated 30-7-2001 [Mukesh Prasad Singh v. Tilka Manjhi Bhagalpur, SLP (C) No. ... CC No. 4832 of 2001, order dated 30-7-2001 (SC), wherein it was directed:"The learned counsel for the petitioner seeks permission to withdraw the SLP with liberty to approach the appropriate forum. It is accordingly dismissed as withdrawn."] granting him liberty to approach the appropriate forum. Respondent 2 thereafter filed Money Suit No. 2 of 2002 before the Court of Sub-Judge, first Court, Lakhisarai on 20-4-2002 for recovery of Rs 69,010 i.e. double the amount of Rs 34,505 and the said suit is pending. The second appellant representing the University had also filed Money Suit No. 2 of 2006 before the same court on 4-2-2006 claiming a sum of Rs 1,44,437 with interest against the second respondent contractor. These acts of the parties show that the parties have already had recourse to the civil remedies that are available to them in law."
Relying on the said judgment, he submits that the Hon'ble Supreme Court has interfered with the matter and identical is the situation herein.
6. Learned counsel for the petitioners further submits that while the Court deciding the case under section 482 of Cr.P.C. or under Article 226 of the Constitution of India the entire facts are need to be read between the lines as has been held by the Hon'ble Supreme Court in the case of "Mohammad Wajid and Another Vs. State of U.P. and Others" (2023) SCC Online SC 951. He submits that there is arbitration clause. On these grounds, he submits that the entire criminal proceeding may be quashed.
7. On the other hand, Mr. Jitendra S. Singh, learned counsel for the respondent no.2 submits that in para 14 of the writ petition the status of the informant has been denied by the petitioners wherein it has been disclosed that the informant was not sub-contractor of the petitioners. He draws the attention of the Court to Annexure-A series which is annexed with the counter affidavit filed by the respondent-State and submits that the terms and conditions of the contract was in clause 7.1 wherein it has been disclosed that maximum number of Sub contractor will be two and they will have to meet all qualifying criteria in the ratio of work allotted. By way of the said clause, he submits that the petitioners have already engaged more than two contractors thereafter this informant was called upon and engaged as sub-contractor. Thus from the very beginning inception of cheating is there. He submits that in para 14 of the writ petition the status of the informant has been denied however, by letter dated 08.12.2022 issued by the petitioners' company 6 addressed to the Jharkhand State Building Construction Corporation Limited it has been disclosed that company has never engaged sub contractor in accordance with clause 7.1 of COC and 13 of the C.D. He submits that in view of this also ingredient of section 415 of I.P.C. is made out. He submits that in the work order issued to the informant contained in Annexure-C to the counter-affidavit filed by the State the informant has been treated as sub-contractor. On these grounds he submits that only F.I.R. is challenge and cheating from the very beginning is made out, this Court may not interfere at this stage.
8. Mr. Deepankar Roy, learned counsel for the respondent-State submits that in the reply to the notice under section 41 A of the Cr.P.C. the petitioners have been said to be sub-contractor. He submits that in the notice under section 41A of Cr.P.C. they accepted that the informant was sub-contractor of the petitioners.
9. In view of above submissions of the learned counsel for the parties the Court has gone through the contents of the F.I.R. and finds that there are allegations of cheating the informant from the very beginning. The allegations are also there that the petitioners have never informed that earlier already they have engaged the sub- contractor i.e. Aman Enterprises, Aloma Technology Pvt. Ltd., Ekme Infrastructure Pvt. Ltd., A.K. Construction, Sarf Infacity, Rahul Constructions, DUKB Infra Project Pvt. Ltd. and others. Thus, from perusal of F.I.R. it is crystal clear that more than two sub-contractors have already been engaged by these petitioners and suppressing this aspect the petitioners have further engaged sub contractors wherein clause-7.1 of the Condition of Contract speaks as under:-
" 7.1. The Contractor may sub-contract any portion of work, up to a limit specified in Contract Data, with the approval of the Engineer but may not assign the Contract without the approval of the employer in writing. Sub-contracting does not alter the Contractor's obligations. Maximum number of Sub contractor will be two and they will have not meet all qualifying criteria in the ratio of work allotted."
10. The correspondence made with the manager- cum-executive engineer of the Jharkhand State Building Construction Corporation Limited by the petitioners' company dated 18.12.2022 it has been stated that the company has never engaged sub-contractor in accordance with clause 7.1 of the COC which further suggests that by way of suppressing the facts the said order has been issued wherein the 7 petitioners' company has already engaged more than two sub-contractors as has been disclosed by the informant in the F.I.R. The work order issued in favour of informant by work order dated 10.01.2022 the status of the informant has been shown as sub-contractor which further suggests that by hiding of this fact the petitioners have claimed money from the Government of Jharkhand. In reply of the notice under section 41-A of Cr.P.C. the status of the informant has been accepted as sub-contractor of the petitioners' company. Thus it is crystal clear that from the very beginning the crucial terms and conditions of the work order was being hidden by the petitioners. In view of that it can not be said that from the very beginning the intention of the cheating was not there and in view of that the judgments relied by Mr. Indrajit Sinha in the case of " Vijay Kumar Ghai and Others" (supra) and "Binod Kumar and Others" (supra) are not helping the petitioners. Further the judgment relied by Mr. Indrajit Sinha in the case of " Mohmmad Wjid and Another" wherein it has held that High Court is required to exercise such power with more care and need to be read between the lines that is not in dispute. However, in the case in hand cheating from the very beginning is made out in view of that further judgment in the case of "Mohammad Wajid" (supra) is not rescuing the petitioners. Further only F.I.R. is under challenge in the present petition. There are parameters of quashing the F.I.R. and the case in hand is not coming within any of the parameters of para 102 of the case of "State of Haryana and others V. Bhajan Lal and others" 1992 Supp. (1) SCC 335.
11. The investigation is still going on and the things are hazing, cannot be scrutinized at this stage in view of above facts.
12. In view of above facts, reasons and analysis and considering that only F.I.R. is under challenge in this writ petition, this Court is not inclined to exercise its discretionary jurisdiction under Article 226 of the Constitution of India. Accordingly, this petition is dismissed. Pending I.A, if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.) Satyarthi/