Alak Sundar Basu v. The State of Jharkhand & Anr.

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioners For the State For the O.P.No.2 :- :- :- Mr. Rohitashya Roy, Advocate Mr. Fahad Allam, Advocate Mr. Rishav Kumar, Advocate ---- 6/12.01.2024 Heard Mr. Rohitashya Roy, the learned counsel appearing for the petitioners, Mr. Fahad Allam, the learned counsel for the respondent State and Mr. Rishav Kumar, the learned counsel appearing on behalf of the O.P.no.2.

2. This petition has been filed for quashing of the order taking cognizance dated 23.9.2017 arising out of Adityapur P.S. Case No.141 of 2014, corresponding to G.R. No.428 of 2014,pending in the court of learned Chief Judicial Magistrate, Seraikella.

3. The complaint case is filed alleging therein that the complainant is the partnership firm having constructions site popularly known as Mangalam City in front of Sudha Dairy Dhirajganj, Adityapur. The complainant placed a purchase order dated 18.06.2013 for supply and 2 installation of elevator equipment for three numbers of Adams make passenger elevator at the work site and all the accused persons are responsible for business and supply of three numbers of elevators equipment on behalf of the company to which the purchase order was issued. On 27.07.2013 the complainant entered into a contract with the accused company which was signed by accused nos.2 and 3 for supply and installation of elevator equipment to the complainant’s various construction site. In terms of the aforesaid contract, payment of Rs.16,19,250/- by several cheques against the above purchase order for supply and delivery of elevator were made. There were nine cheques which have been issued by the complainant in favor of the accused persons for the aforesaid amount. According to terms the accused persons were bound to deliver three elevator equipment and install the same within ten weeks from the date of receipt of the order but despite all efforts by complainant the accused persons failed to supply the material and installation of the lifts and also accused persons not refunded the advance paid to them by the complainant.

4. The learned counsel for the petitioners submits that the complaint case is filed praying therein that the matter may be send to police under section 156(3) Cr.P.C. He further submits that this complaint was not on affidavit and in spite of that the learned court without applying its judicial mind by way of endorsing upon the same transferred the matter to police under section 156(3) Cr.P.C which is not in accordance with law and to buttress his argument, he relied in the case of “Priyanka Shrivastava and Another v. State of Uttar Pradesh and Others”, reported in (2015) 6 SCC 287. He further submits that the entire case is made out on the basis of commercial transaction. He submits that agreement has been entered between the parties for erecting four elevators, and out of four, two elevators have already been installed and 3 so far as other two elevators are concerned, the materials were also supplied. However, Rs.1,95,000/- was not paid by O.P.No.2 and in view of that, installation was not made. He further submits that by way of two letters, contained at Annexures- 11, 12 and 12/1, the O.P.No.2 was called upon to pay the said amount, however, the O.P.No.2 has kept mum and O.P.no.2 thereafter has filed the case. He submits that case is arising out of contract and every contract cannot be the subject matter of criminality and to buttress his such argument he relied in the case of Vijay Kumar Ghai v. State of W.B., (2022) 7 SCC 124 and relied in the paragraph no.12 of the said judgment. Relying on the said judgment he submits that if such a situation is there, this Court may not interfere and to allow the proceeding will amount to abuse of process of law. He submits that the petitioner no.1 is the C.E.O of the said company and the petitioner no.2 was Director of the said company.

5. The said argument is resisted by Mr. Rishav Kumar, the learned counsel appearing on behalf of the O.P.No.2 and he submits that the petitioners have not approached this Court with clean hands and the material facts have been suppressed and he submits that the elevators were not erected and in view of that the case is made out. He submits that there is no order annexed by the petitioners on the point of section 156(3) Cr.P.C passed by the learned court.

6. Mr. Allam, the learned State counsel submits that the learned court has rightly taken cognizance pursuant to the complaint case.

7. The Court has gone through the materials on record and finds that admittedly the complaint case was filed by the petitioners arraying the accused persons who are the officers of the said company. The separate prayer was made to send the matter under section 156(3) of the Cr.P.C. and in spite of any averment when the complainant has approached, the police has not registered the FIR and the learned court 4 by way of endorsement only sent the matter under section 156(3) Cr.P.C for registration of the FIR. This is not a separate order and it is merely endorsement on the said petition by way of referring the same. The Hon’ble Supreme Court in the case of “Priyanka Shrivastava”(supra) has held that there should be application of judicial mind while passing an order under section 156(3) Cr.P.C. In that case, the Hon’ble Supreme Court has dealt with several judgments and law has been laid down in paragraph nos.27,29,30 and 31. In paragraph no.27 of the said judgment, the Hon’ble Supreme Court has held that the learned magistrate has to remain vigilant with regard to allegations made and the nature of allegations and not to issue directions without proper application of mind. It has further been held that the said application which was been filed under section 156(3) Cr.P.C. should be supported by an affidavit and the purpose of filing such affidavit is to prevent abuse of process, which has become common in these days. The manner of affidavit has also been prescribed in section 297 Cr.P.C. There was no prior invocation of section 154(3) of the Cr.P.C., while filing the petition before the Court under section 156(3) Cr.P.C. In the complaint case itself, it has been prayed to sent the complaint to the police for registration of the FIR. Thus, this order and action of the learned court sending the complaint to the police for registration and investigation under section 156(3) Cr.P.C is not in consonance with law. Further, in that complaint, the complain is made that two elevators are not erected by the petitioners, however, two elevators have already been erected and the materials for other two elevators have been sent. The document suggest that demand was made to pay Rs.1,95,000/- and the O.P.No.2 kept mum. Thus, it appears that only to settle a civil dispute, the O.P.No.2 has filed the complaint case and chosen to short cut so that the matter may be settled by way of criminal case. It is further well settled that every contract cannot be subject matter of 5 criminality as held in the case of ‘Vijay Kumar Ghai”(supra).

8. In view of above finding, the Court is not accepting the argument of the learned counsel for the O.P.No.2 as from the very beginning the ingredient of cheating is not there in the modus operandi of execution of the said contract. The dispute has arisen and demand has been made to the tune of Rs.1,95,000/- and thereafter the present case has been lodged.

9. In view of the above reasons and analysis, the entire criminal proceeding as well as order taking cognizance dated 23.9.2017 arising out of Adityapur P.S. Case No.141 of 2014, corresponding to G.R. No.428 of 2014,pending in the court of learned Chief Judicial Magistrate, Seraikella are quashed. This petition is allowed and disposed of.

10. It is made clear that if any civil proceeding is there that will be decided in accordance with law without being prejudiced by this order as this order is passed only to deal with the present case.

11. Pending petition if any also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) SI/, A.F.R.