1. Sunil Kumar Shah 2. Rakhi Shah v. 1. The State of Jharkhand 2. Sajan Kapoor
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI Cr.M.P. No. 269 of 2017 1. Sunil Kumar Shah 2. Rakhi Shah Versus 1. The State of Jharkhand 2. Sajan Kapoor …Petitioners …Opposite Parties with Cr.M.P. No. 2946 of 2013 3. S. Mohan 4. Soumen Paul 5. Suresh Kumar Jayswal @ Jaiswal 6. D.M. Shaw Versus 3. The State of Jharkhand 4. Saajan Kapoor --- …Petitioners …Opposite Parties
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For State --- --- : Ms. Neeharika Mazumdar, Advocate (Cr.M.P. No. 269 of 2017) Mr. Nitin Kumar Pasari, Advocate Mr. Gaurav Kaushalesh, Advocate Mrs. Sidhi Jalan, Advocate (Cr.M.P. No. 2946 of 2013) : Mr. Sunil Kr. Dubey, Advocate (Cr.M.P. No. 269 of 2017) Mr. Prabhu Dayal Agarwal, Advocate (Cr.M.P. No. 2946 of 2013) 08/11.06.2024 Heard the learned counsel for the petitioners as well as the learned counsel for the respondent State. 2. In both the cases common First Information Report and the order taking cognizance are subject matter and in view of that both the cases have been heard together with the consent of the parties. I.A. No. 1215 of 2020 in Cr.M.P. No. 2946 of 2013 3. The instant interlocutory application has been filed by the petitioner for amendment in the prayer portion of the petition. During the pendency of the petition, the learned court has been pleased to take cognizance by the order dated 02.03.2019. 4. Learned counsel for the petitioners submits that in view of that it was necessary to file the petition. 5. Learned counsel for the State and the opposite party no. 2 has got no serious objection if the interlocutory application is allowed. Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 Page 1 of 5 6. Considering that the matter is still pending before this Court and subsequently the learned court has taken the cognizance, and to avoid the multiplicity of the litigation the prayer is allowed. 7. 8. Accordingly, I.A. No. 1215 of 2020 is allowed. Let this interlocutory application be treated as the part of the main petition. Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 9. In both the cases the prayer is made for quashing of the entire proceeding arising out of Bokaro Steel City P.S. Case No. 395 of 2013 corresponding to G.R. No. 1605 of 2013 pending in the court of learned Chief Judicial Magistrate, Bokaro. In view of allowing of the interlocutory application the order taking cognizance is also under challenge. 10. The First Information Report was registered alleging therein that Bokaro Steel Plant has awarded civil works to M/s. Larsen & Toubro Limited in the year 2008 for construction of CRM (III) and BF (II). The said work was outsourced by M/s. Larsen & Toubro Limited to Costal Infra Bokaro as also to Chitra Builders Pvt. Limited (herein after referred to as CBPL). In terms of the outsourcing, the said two firms namely Costal Infra as also CBPL has hired the Sub Contractors for supply of stone chips and sand. However, since December, 2022 M/s. Larsen & Toubro Limited namely CBPL as also Costal Infra are since not making payment to their Sub Contractors/Suppliers, the informant approached the Local Police Authorities alleging therein of cheating and in terms whereof the First Information Report was lodged in terms of Section 406, 420, and 34 of the Indian Penal Code. 11. Learned counsel for the petitioners in Cr.M.P. No. 2946 of 2013 submits that the petitioners are the employees of M/s. Larsen & Toubro Limited the company incorporated under the Companies’ Act, 1956 having its office at Chennai. He submits that the contractors of the company M/s. Costal Infra Bokaro as also Chitra Builders Pvt. Limited the informant and other similarly situated suppliers/ Sub Contractors have been engaged by the M/s. Costal Infra Bokaro and Chitra Builders Pvt. Limited. As and when after discharging of the work they have raised Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 Page 2 of 5 bill and the company at Chennai released the payment order. He submits that since the company has engaged M/s. Costal Infra Bokaro and Chitra Builders Pvt. Limited, the payments were being released in favour of that companies. 12. He submits that the allegations are that the payment has not been made to M/s. Costal Infra Bokaro and Chitra Builders Pvt. Limited. He submits that on the nonpayment of the dues the First Information Report has been lodged and instructions has received that no dues are there against the M/s. Larsen & Toubro Limited with regard to the work discharged by Principal contractors i.e. M/s. Costal Infra Bokaro and Chitra Builders Pvt. Limited. He submits that in breach of contract, if any, the criminal case has been lodged. He further submits that for the identical nature of allegation two FIRS have been registered against the petitioners and other officers of the company moved before this Court with regard to B.S.City P.S. Case no. 405 of 2013 in Cr.M.P. No. 2936 of 2013 which was allowed by the order dated 10.02.2020 and in that proceeding the First Information Report was quashed. He submits that the petitioner’s case is covered in view of the said judgment also. In view of that order the entire criminal proceeding as well as the First Information Report may kindly be quashed. 13. Learned counsel for the petitioner in Cr.M.P. Nos. 269 of 2017 submits that the petitioner no. 1 is the then Chairman cum Managing Director and the petitioner no. 2 is the Managing Director of the M/s. Costal Infra Bokaro Ltd. Learned counsel for the petitioners submits that the petitioners have been falsely made accused in the present case for a case of civil nature. She submits that for monetary dispute the present case has been filed against the petitioners and the petitioners are not looking to the day to day affairs of the company. The Company has not been made accused and for that the petitioners cannot be made accused and vicarious liability cannot be fastened on the petitioners and she submits that criminal proceeding may kindly be quashed. 14. Learned counsel for the State submits that the charge sheet was submitted in view of that a clear case of cheating is made out. Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 Page 3 of 5 15. Learned counsel for the opposite party no. 2 submits that the amount to the tune of Rs. 66 lakhs was not paid. In view of that a clear case of cheating is made out. He submits that this Court at this stage may not quash the entire criminal proceeding that can be a subject matter of trial. And on this ground the this Cr.M.Ps. may kindly be dismissed. 16. It was pointed out that the M/s. Larsen & Toubro Limited, released the amount with regard to discharge of work by the Sub Contractor of M/s. Costal Infra Bokaro Ltd. and Chitra Builders Pvt. Limited. However, that was denied by the opposite party no. 2. 17. Even the submission of the opposite party no. 2 is accepted the amount was not paid the case of criminality is not made out. The opposite party no. 2 has not filed any recovery proceeding of the said amount under the provisions of law and the First Information Report has been lodged which is against the several mandate of Hon’ble Supreme Court as well as the High Court. To cut short the proceeding the opposite party no. 2 has not preferred the civil remedy and just filed the criminal case. In the light of the section 415 of the Indian Penal Code, the intention to cheat from the very beginning is one of the ingredients which is lacking in the case. Admittedly, the work was discharged by these companies and subsequently certain payments were made and for recovery of the dues if the present criminal case is filed i.e. questionable. Reference may be made to the case of S.W.Palanitkar & Othersversus- State of Bihar & Another, reported in (2002) 1 SCC 241 in Para-10 has held as follows:- “10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.”
Decision
18. Coming to the facts of the present case, in view of the above law this Court finds that the ingredients are not made out to attract the Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 Page 4 of 5 offence under Section 420 of the Indian Penal Code. So far as the 406 of the Indian Penal Code is concerned M/s. Larsen & Toubro Limited was not entrusted with any property by the informant. If anything was entrusted it was entrusted to M/s. Costal Infra Bokaro Pvt. Ltd. and Chitra Builders Pvt. Limited. However, the allegations are falsely made in the First Information Report so far as the Chitra Builders Pvt. Ltd. The amount was not paid to other engaged persons of the Chitra Builders Pvt. Ltd. and if such allegations are there the remedy is also there by way of filing civil suit for recovery of the said amount. In view of that this proceeding amount to abuse of process of law. Accordingly the entire criminal proceeding arising out of Bokaro Steel City P.S. Case No. 395 of 2013 corresponding to G.R. No. 1605 of 2013 pending in the court of learned Chief Judicial Magistrate, Bokaro are quashed. These petitions are allowed and disposed of. 19. Pending interlocutory application, if any, stands disposed of. MM (Sanjay Kumar Dwivedi, J.) Cr.M.P. Nos. 269 of 2017 and 2946 of 2013 Page 5 of 5