Biplab Ranjan Chakraborty, aged about 63 years, Son of Late Binod Ranjan Chakraborty, at v. 1. The State of Jharkhand 2. Vikash Agrawal, aged about 42 years, S/o Shyam
Case Details
Cr. M.P. No.2293 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2293 of 2023 ------ Biplab Ranjan Chakraborty, aged about 63 years, Son of Late Binod Ranjan Chakraborty, at present residing at J-1, Pritha Apartments, 482, Mahamayatala, P.O. Garia, P.S. Narendrapur, District Kolkata- 700084, West Bengal. … Petitioner Versus 1. The State of Jharkhand 2. Vikash Agrawal, aged about 42 years, S/o Shyam Sunder Agarwal, R/o Govindam, Gwalapara Road, Near Railway Fatak, Jugsalai, PO & PS Jugsalai, Town Jamshedpur, District East Singhbhum within the State of Jharkhand.
Legal Reasoning
3. M/s Vikash Drug Distributors, a partnership firm having its registered office at G.P. Road, Jugsalai, PO & PS Jugsalai, District Singhbhum East (Jharkhand) through its partner namely; Vikash Agrawal, aged about 42 years, S/o Shyam Sunder Agarwal, R/o Govindam, Gwalapara Road, Near Railway Fatak, Jugsalai, PO & PS Jugsalai, Town Jamshedpur, District East Singhbhum within the Opposite Parties State of Jharkhand. … For the Petitioner For the State For the O.P. Nos.2 & 3 ------
Legal Reasoning
: Mr. Sumeet Gadodia, Advocate Mrs. Shilpi Sandil Gadodia, Advocate Mr. N. Choubey, Advocate Ms. Shruti Shekhar, Advocate : Mr. Bhola Nath Ojha, Addl. P.P. : Mr. Anurag Kashyap, Advocate Ms. Supriya Dayal, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the 1 Cr. M.P. No.2293 of 2023 order dated 23.05.2023 passed in Complaint Case No.1725 of 2022 by the learned Judicial Magistrate-1st Class, Jamshedpur whereby and where under the learned court below has held that prima facie case is made out against the petitioner for the offences punishable under Section 406, 420 and 34 of the Indian Penal Code and ordered for issuance of summon against him. 3. The brief facts of the case is that the complainant supplied medicines worth Rs.74,98,262/- to the company namely M/s Uranium Corporation of India Ltd. and the company paid in total Rs.65-66 lakhs of rupees but did not pay Rs.8,00,000/- and also did not return the security deposit which was made by the complainant at the time of entering into the contract with the company for supply of the said medicine. 4. Learned counsel for the petitioner submits that the M/s Uranium Corporation of India Ltd. is a Government of India Enterprises and directly under the control of Department of Atomic Energy, Government of India and the petitioner is the Deputy General Manager (Purchase) of the company. It is next submitted that admittedly the complainant delivered the articles beyond the prescribed period of 15 days from the date of receipt of purchase order which was in violation of terms of the NIT/Contract as total delay made in supply is more than 10 weeks than the scheduled date. It is next submitted that the complainant has abruptly failed to supply the first lot itself as per delivery schedule which attracts agreed liquidation damages under Clause-5 of the terms and conditions of purchase order. It is next submitted that the company has right under Clause-6 of the terms and conditions of purchase order to forfeit the security deposit and the contractor has to furnish a Bank Guarantee for a sum equal to 5% of total value of the order within schedule date as per the 2 Cr. M.P. No.2293 of 2023 order failing which security amount may be recovered while releasing first payment. It is further submitted that since the complainant has not supplied three medicines out of the order of 51 medicines, the company under the contract/tender has a right to forfeit the security deposit of Rs.3,83,863/- and it has been informed to the complainant vide email. It is next submitted that admittedly the company has already paid Rs.74,83,241/- to the complainant. It is further submitted that the contract provides for alternative dispute redressal mechanism of Arbitration but without complying with the same, the complainant, for wrecking vengeance, has instituted this criminal case. It is next submitted that though the petitioner is an employee under the Central Government undertaking and has acted in his official capacity; in view of provision of Section 197 of Code of Criminal Procedure, the prosecution against the petitioner is not maintainable in absence of sanction from the competent authority of Government of India. 5. Learned counsel for the petitioner relies upon the judgment of this Court in the case of Chandan Kumar Gupta & Another vs. The State of Jharkhand & Another dated 27th of June, 2023 passed in Cr.M.P. No.1221 of 2022, and submits that in order to establish the offence punishable under Section 406 of Indian Penal Code the following ingredients are to be established:- (i) Mens rea (ii) There must be dishonest misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract
Decision
(iii) The accused dishonestly used or disposed of the property and to constitute the offence punishable under Section 420 of the Indian Penal Code, the following are the essential ingredients:- 3 Cr. M.P. No.2293 of 2023 (i) Deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission, (ii) Fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and (iii) Such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property as has been held by the Hon’ble Supreme Court of India in the case of Mohammed Ibrahim & Others vs. State of Bihar & Another reported in (2009) 8 SCC 751. 6. It is next submitted that, in the absence of any of the essential ingredients available in the record, the offence punishable under Sections 420 or 406 of the Indian Penal Code is not made out. Hence, it is submitted that the order dated 23.05.2023 passed in Complaint Case No.1725 of 2022 by the learned Judicial Magistrate-1st Class, Jamshedpur and the entire criminal proceedings of Complaint Case No.1725 of 2022 which is now pending in the court of learned Judicial Magistrate-1st Class, Jamshedpur be quashed and set aside. 7. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party Nos.2 and 3 vehemently oppose the prayer for quashing and setting aside the order dated 23.05.2023 passed in Complaint Case No.1725 of 2022 by the learned Judicial Magistrate-1st Class, Jamshedpur and the entire criminal proceedings of Complaint Case No.1725 of 2022 which is now pending in the court of learned Judicial Magistrate-1st Class, Jamshedpur and submit 4 Cr. M.P. No.2293 of 2023 that there is direct and specific allegation against the petitioner of having cheated the complainant to the tune of Rs.8,00,000/-. Hence, the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioner. Therefore, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 8. 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 offence punishable under Section 420 of the Indian Penal Code, the accused must have an intention to cheat the victim since the very inception as has been held by the Hon’ble Supreme Court of India in the case of the Dalip Kaur and Others vs. Jagnar Singh & Another reported in (2009) 14 SCC 696, para 10 of which reads as under :- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])” (Emphasis supplied) 9. It is also a settled principle of law that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused. It must also be shown that the accused dishonestly disposed of the same, in some way or dishonestly retained the same. The mere fact that the appellant did not pay the money to the complainant, does not amount to criminal breach of trust as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663, paragraph-18 of which reads as under :- 5 Cr. M.P. No.2293 of 2023 18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied) 10. Now, coming to the facts of the case, the company has paid substantial amount of the complainant as out of the supplied amount of Rs.74,98,262/- a sum of Rs.74,83,241/- has undisputedly already been paid and this fact is not even disputed by the complainant. The petitioner has taken the plea that under the contract; company has the right to forfeit the security deposit. Under such circumstances, in the absence of any material to suggest that the petitioners had any intention to the cheat the complainant/opposite party No.2 since the very inception, the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner and in the absence of any allegation that the petitioner has dishonestly retained the money of the complainant/opposite party No.2 or dishonestly disposed of the same in the manner, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners. 11. Under such circumstances, this Court is of the considered view that this is a fit case where the continuation of the order dated 23.05.2023 passed in Complaint Case No.1725 of 2022 by the learned Judicial Magistrate-1st Class, Jamshedpur and the entire criminal proceedings of Complaint Case No.1725 of 6 Cr. M.P. No.2293 of 2023 2022 which is now pending in the court of learned Judicial Magistrate-1st Class, Jamshedpur; against the petitioner will amount to abuse of process of law and this is a fit case where the same be quashed and set aside. 12. Accordingly, the order dated 23.05.2023 passed in Complaint Case No.1725 of 2022 by the learned Judicial Magistrate-1st Class, Jamshedpur and the entire criminal proceedings of Complaint Case No.1725 of 2022 which is now pending in the court of learned Judicial Magistrate-1st Class, Jamshedpur, as prayed for by the petitioner, is quashed and set aside against the petitioners. 13. 14. In the result, this Cr.M.P. stands allowed. In view of disposal of the instant Cr.M.P., Interlocutory Application No.851 of 2024 stands disposed of being infructuous. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of February, 2024 AFR/ Animesh 7