Naresh Kedia, aged 50 years, Son of Late Shyam sunder kedia Resident of Tagore v. 1. The State of Jharkhand 2. Syed Md. Sharfullah Son of Late Syed Md
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1835 of 2018 ------ Naresh Kedia, aged 50 years, Son of Late Shyam sunder kedia Resident of Tagore Hill Road, P.O. Morabadi, P.S. Bariatu, Dist. Ranchi Petitioner Versus 1. The State of Jharkhand 2. Syed Md. Sharfullah Son of Late Syed Md. Rijwanullah Resident of Village Shamshernagar, P.O. Polytecnic, P.S. Bank More, Dist. Dhanbad- 826001 … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
: Mr. Sunil Kr. Agarwal, Advocate : Mr. Pankaj Kr. Mishra, Addl.P.P. : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Though notice has been validly served to opposite party No.2, no one turns up on behalf of the opposite party No.2 in spite of repeated calls. 3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order taking cognizance dated 21.12.2017 passed in connection with Complaint Case No.2620 of 2017 whereby and where under, prima facie case has been found against the petitioner for the offences punishable under 409, 419, 420, 467, 468, 471, 120B of the Indian Penal Code and the said case is now pending in the court of learned Chief Judicial Magistrate, Dhanbad. 1 Cr. M.P. No.1835 of 2018 4. The allegation against the petitioner is that the petitioner applied for appointment as auditor at Zila Praishad, Dhanbad for the financial year 2016-17 for two different firms and he has signed documents for two different firms; in such application for appointment of auditor. It is further alleged that though the rate of auditing was fixed at Rs.90/- only per panchayat, M/s Goyal Parul & Co. has been paid Rs.3270/-for the said audit by the Panchayat Prabhari of Ledatand Panchayat, Topchanchi; causing loss to the Government Exchequer. 5. On the basis of the complaint, statement of solemn affirmation and the documents annexed therewith the complaint, the learned Chief Judicial Magistrate, Dhanbad found sufficient materials in the record for proceeding against the petitioner as well as the Panchayat Prabhari of Ledatand Panchayat, Topchanchi for having committed the offences punishable under Section 409, 419, 420, 467, 468, 471, 120B of the Indian Penal Code and ordered for issue of summons. 6. Learned counsel for the petitioner submits that the petitioner is innocent and has not committed any offence. M/s Saket Modi & Co. applied for auditing work on 18.02.2017, while M/s Goyal Parul applied for audit work on 15.06.2017 before the District Development Commissioner and the petitioner being a Chartered Accountant is partners of both the firms, therefore, no illegality has been committed by him. It is next submitted by the learned counsel for the petitioner that the audit fee at the rate of Rs.3270/- has not been paid to the petitioner rather it has been paid to M/s Goyal Parul & Co. It is next submitted that there is no allegation of creation of any false document by the petitioner. Hence, the offences punishable under Sections 467, 468 of the Indian Penal Code does not arise. It is also submitted that there is no allegation against 2 Cr. M.P. No.1835 of 2018 the petitioner of having cheated and thereby dishonestly induced anybody to part with any property. Therefore, the offence punishable under Sections 419, 420 of the Indian Penal Code is not made out. 7. So far as the offence punishable under Section 409 of the Indian Penal Code is concerned, learned counsel for the petitioner submits that there is no allegation against the petitioner of committing dishonest misappropriation of any property. Hence, the offence punishable under Section 409 of the Indian Penal Code is not made out. It is, therefore, submitted that as none of the offences alleged in respect of which the learned Chief Judicial Magistrate, Dhanbad has found sufficient materials made out against the petitioner; hence, continuation of this criminal proceeding will amount to abuse of process of law. Therefore, this is a fit case where the prayer as prayed for by the petitioner in this Cr.M.P. be allowed. 8. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner and submits that though there is no prohibition for a Chartered Accountant to be partner in two different firms but the petitioner, with a dishonest intention, has applied for auditing work in the name of two different firms and one of the firms of which the petitioner admitted being the partner has received audit fee in excess of the prescribed fee. Hence, it is submitted that, the offences alleged is made out against the petitioner. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in order to constitute the offences punishable under Section 467, 468 3 Cr. M.P. No.1835 of 2018 of the Indian Penal Code, the essential ingredients is that the accused must have created a false document. Admittedly, the petitioner is a partner of two different firms. There is no bar in law, for any person to become partner in two different firms. So, there is no material in the record to suggest that the petitioner has created any false document and in the absence of any material in this regard, this Court is of the considered view that the offence punishable under Section 467, 468 of the Indian Penal Code is not made out. 10. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, to constitute the offence punishable under Section 420 of the Indian Penal Code, cheating and thereby dishonestly inducing the person so deceived to part with any property etc. is a sine qua non. There is absolutely no allegation against the petitioner of cheating anybody or thereby dishonestly inducing anybody to part with any property. Hence, in the considered opinion of this Court, even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out. 11. So far as the offence punishable under Section 419 of the Indian Penal Code is concerned, the same provides for punishment for cheating by personation. The word personation means pretending to be some other person. If a person is a partner of two different firms, he cannot be said to have committed personation because there is no pretention and there is no bar in any law for a person being partner of two different firms. 12. Under such circumstances, in the absence of any allegation of impersonation against the petitioner, the offence punishable under Section 419 4 Cr. M.P. No.1835 of 2018 of the Indian Penal Code is not made out, even if the entire allegations against the petitioner are considered to be true in their entirety. 13. So far as the offence punishable under Section 409 of the Indian Penal Code is concerned, the same relates to criminal breach of trust by a public servant, banker, merchant, agent etc. In order to constitute the criminal breach of trust, there must be some entrustment or dominion over the property and dishonest misappropriation of the entrusted property. 14. Now coming to the facts of the case, there is absolutely no allegation of dishonest misappropriation against the petitioner. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 409 of the Indian Penal Code is not made out. 15. In view of the discussions made above, as none of the offences in respect of which the learned Magistrate has found sufficient material; as already indicated above in the foregoing of this judgment, is not made out against the petitioner, hence, continuation of this complaint case against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the order taking cognizance dated 21.12.2017 passed in connection with Complaint Case No.2620 of 2017 whereby and where under the cognizance has been taken against the petitioner for the offences punishable under 409, 419, 420, 467, 468, 471, 120B of the Indian Penal Code, be quashed and set aside qua the petitioner only. 16. Accordingly, the order taking cognizance dated 21.12.2017 passed in connection with Complaint Case No.2620 of 2017 whereby and where under the cognizance has been taken against the petitioner for the offences punishable 5 Cr. M.P. No.1835 of 2018 under 409, 419, 420, 467, 468, 471, 120B of the Indian Penal Code, is quashed and set aside qua the petitioner only. 17.
Decision
In the result, this Cr.M.P. is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 20th of September, 2024 AFR/ Saroj 6 Cr. M.P. No.1835 of 2018