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2012 Supreme(Pat) 839
IN THE HIGH COURT OF JUDICATURE AT PATNA
MIHIR KUMAR JHA, J.
Santosh Kumar @ Santosh Kumar Jha, S/o Sri Bhagwan Lal Jha - Petitioner
Versus
State of Bihar & Anr. - Opposite Parties
Criminal Miscellaneous No.37502 of 2006
Decided on : 29-06-2012
For the Petitioner: Mr. Ajit Kumar, Adv.
For the State : Mr. Jharkhandi Upadhyay, APP
The central legal point established in the judgment is the requirement of fraudulent or dishonest intention for establishing the offence of cheating under Section 420 IPC and the interpretation of the definition of 'contractor in relation to the work' under the Bihar Prevention of Specified Corrupt Practices Act, 1983.
Headnote:
Cheating - Quashing of Cognizance Order - Indian Penal Code - Bihar Prevention of Specified Corrupt Practices Act, 1983 - [Section 420, Cheating, Indian Penal Code] - [Section 4, Bihar Prevention of Specified Corrupt Practices Act, 1983] - The court discussed the legal provisions of Section 420 of the Indian Penal Code and Section 4 of the Bihar Prevention of Specified Corrupt Practices Act, 1983. It highlighted the requirement of fraudulent or dishonest intention for establishing the offence of cheating under Section 420 IPC and the definition of 'contractor in relation to the work' under the 1983 Act. The court emphasized that the remedy for breach of contract was civil in nature and that the criminal prosecution was an abuse of executive power. The court also examined the provisions of Section 39 and Section 40 of the 1983 Act and concluded that the impugned order taking cognizance was unjustified.
Fact of the Case:
The petitioner was accused of short supply of exercise books and facing criminal prosecution under Section 420 of the Indian Penal Code and Section 4 of the Bihar Prevention of Specified Corrupt Practices Act, 1983. The petitioner argued that the delay in supply was not attributable to him and that the criminal prosecution was an abuse of executive power. The court analyzed the agreement, the definition of cheating under Section 415 IPC, and the provisions of the 1983 Act to determine the validity of the impugned order taking cognizance.
Finding of the Court:
The court found that the impugned order taking cognizance was unjustified as the allegations did not establish the offence of cheating under Section 420 IPC or the violation of the 1983 Act. The court emphasized that the remedy for breach of contract was civil in nature and that the criminal prosecution was an abuse of executive power. The court also highlighted the lack of fraudulent or dishonest intention on the part of the petitioner and the absence of notification for the officer lodging the First Information Report under the 1983 Act.
Issues: The issues involved the validity of the impugned order taking cognizance, the applicability of Section 420 IPC and Section 4 of the 1983 Act, and the abuse of executive power in launching a criminal prosecution for breach of contract.
Ratio Decidendi: The court's decision was based on the interpretation of the legal provisions of Section 420 IPC and Section 4 of the 1983 Act, the requirement of fraudulent or dishonest intention for establishing the offence of cheating, and the lack of notification for the officer lodging the First Information Report under the 1983 Act. The court emphasized that the remedy for breach of contract was civil in nature and that the criminal prosecution was an abuse of executive power.
Final Decision: The application was allowed, and the impugned order taking cognizance dated 25.8.2006 and the resultant entire criminal proceeding against the petitioner were quashed.
Heard Mr. Ajit Kumar, learned counsel for the petitioner and Mr. Jharkhandi Upadhyay for the State.
2. This application has been filed for quashing of the order taking cognizance for offence under Section 420 of the Indian Penal Code dated 25.8.2006 passed by the Chief Judicial Magistrate, Nalanda in Bihar P.S. Case No. 01 of 2003 (G.R. No. 07 of 2003).
3. Mr. Ajit Kumar, learned counsel for the petitioner, has submitted that even if the averments made in the entire First Information Report is accepted to be entirely true, no offence yet can be said to have been committed by the petitioner so as to make him liable for prosecution for offence under Section 420 of the I.P.C. or any other offences punishable under any law. In this regard, he has explained that the petitioner in capacity of proprietor of M/s Punam Printing Works, Patna had been favoured with a supply order of 3,81,121 pieces of Abhyas Pustika (Exercise Book) and after execution of agreement, supply of 2,91,719 pieces of exercise book had already been made and while remaining supply was yet to be made, a First Information Report was instituted at the instance of the District Magistrate, Nalanda, the opposite party no.2 without taking into consideration that the only remedy for the alleged breach of agreement for short supply of exercise books was either taking action contemplated in the agreement itself or institution of a civil suit claiming damages. In this regard, he has also explained that the delay in supply of exercise book could not be attributed to the firm of the petitioner, inasmuch as, even when the process of tender of supply of exercise book was initiated in October, 2001 and was completed by selecting the petitioner as the lowest bidder in December, 2001, the actual decision for execution of agreement and consequential supply order were issued only on 24.10.2002, just at the nick of the moment when the literacy mission was to commence in Nalanda district with effect from 30.10.2002. He has thus submitted that the First Information Report was lodged only with a vengeance for making the petitioner an escape goat for the failure on the part of the district administration in completing the project of literacy mission. He has also placed reliance on the judgment of the Apex Court in the case of Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr. reported in 2007(7)SCC 373, in the case of All Cargo Movers (India) Private Limited & Ors. Vs. Dhanesh Badarmal Jain & Anr. reported in 2007(14)SCC 776 and Sharon Michael & Ors. Vs. State of Tamil Nadu & Anr. reported in 2009(3)SCC 375.
4. Mr. Jharkhandi Upadhyaya, learned APP appearing on behalf of the State and the District Magistrate, Nalanda on the other hand having filed a counter affidavit, has submitted that the petitioner had promised to supply 3,81,121 pieces of exercise book (Abhyas Pustika) by an agreement in writing dated 24.10.2002 and when he did not complete the supply within the prescribed period of fifteen days and also became traceless, inasmuch as, the letters sent by way of reminder for supply had returned unserved, the ingredients of cheating as defined under Section 415 of the I.P.C. were fulfilled and as such, the petitioner’s short supply of 89,402 pieces of exercise book being punishable for offence under Section 420 of the I.P.C. when the said allegation was found to have been substantiated in course of investigation by the police, which had filed a charge-sheet against the petitioner, no error can be said to have been committed by the court below in taking cognizance and issuing summons to him to face trial. He has also submitted that the petitioner has a chequred past and he is also facing another criminal prosecution for sub-standard supply of materials.
5. As with regard to the ingredient of the offence under Section 415 of the I.P.C., he has submitted that since the Magistrate on perusal of the case diary and specially its paragraph nos. 3, 7, 9, 11, 12, 13, 65, 76 and 86 was sa
