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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
M/S Vision Fibre Amusement, New Delhi, through its proprietor, Smt. Sunita Moitra - Petitioner
Versus
The State of Jharkhand and Ors. - Opposite Parties
Cr.M.P. No. 307 of 2012
Decided On : 20-02-2019
Indian Penal Code - Sections 406/420/467/468/471/34 – First Information Report - Adequacy of evidence is not required - Toy Train installed by petitioner however could not run due to dispute between the Managing Committee and local administration Since considerable period had lapsed and rainy season had also passed by, the railway track on which ‘Toy Train’ was to run, got lowered down – However same was also repaired - In petitioner received a letter of from the office of Nagar through its Executive Officer alleging certain defects in materials supplied by the petitioner which was replied by the petitioner denying all the allegations - It is further submitted that allegations against petitioner are purely civil in nature and ingredients of “cheating” are not attracted in the present case and as such continuance of the present criminal proceeding would amount to an abuse of the process of Court – Held, There is no dispute with regard to aforementioned propositions of law – However it is now well settled that High Court ordinarily would exercise its jurisdiction under Section 482 of Code of Criminal Procedure if the allegations made in first information report even if given face value and taken to be correct in their entirety do not make out any offence - When the allegations made in first information report or evidences collected during investigation do not satisfy ingredients of an offence superior courts would not encourage harassment of a person in a criminal court for nothing - In present case complainant has in fact alleged against the petitioner that the work done by the petitioner was not up to mark, however, that by itself is not sufficient ground for alleging an offence under Section 420 IPC. In order to attract an offence under Section 420 IPC, it is required to be alleged that accused had an intention to cheat from very inception - Contents of the written report of however, do not attract the offences as registered by the police - Thus court find substance in argument of the learned counsel for the petitioner has improved his case in the counter affidavit so as to attract the criminal culpability on part of the petitioner. Prima facie, the dispute raised by to be civil in nature, which is required to be adjudicated in an appropriate civil proceeding - Petitioner is claiming that work has been completed within the stipulated period in terms with the agreement, however, some amount is still due be paid by Nagar with regard to execution of the said work - On contrary, it is alleged by the O.P.No.2 that the work done by the petitioner is not up to the mark - Thus, both the parties have their own case to contend, which is required to be adjudicated in an appropriate civil proceeding so as to fix the civil liability of the respective parties - There is no iota of material indicating that the intention of the petitioner was fraudulent at the time of execution of the agreement, rather the specific case of the petitioner is that the work was awarded to it after having found it as the lowest - It is true that at stage of lodging of an F.I.R, the adequacy of evidence is not required to be seen by the Court, but there has to be at least some cogent material for implicating in a criminal case - To take a contrary view would only lead to harassment of a person by unnecessarily forcing him/her to face of criminal trial – petition allowed
The present petition has been filed for quashing the entire criminal proceedings in connection with Lohardaga P.S. Case No. 161 of 2011 (G.R Case No. 546 of 2011) for the offences under Sections 406/420/467/468/471/34 IPC, now pending in the Court of the Chief Judicial Magistrate, Lohardaga.
2. The brief background of the case is that an agreement was entered into between the petitioner and the Nagar Parishad, Lohardaga through its Executive Officer for supply and installation of a ‘Toy Train’ in a park named ‘Ajay Udyan’ on 17.12.2008. An FIR being Lohardaga P.S Case No. 161 of 2011 was lodged under Sections 406/420/467/468/471/34 IPC on the basis of the written report of the Junior Engineer, Nagar Parishad, Lohardaga dated 14.10.2011 wherein it was alleged that in spite of repeated directions, the work had not been completed by the petitioner as yet, though it was agreed that the same would be completed within 75 days. It was further alleged that the work done by the petitioner had not been found up to the mark.
3. The learned counsel for the petitioner submits that the petitioner had carried out necessary works and handed over the keys of the ‘Toy Train’ in running condition after the trial run on 26.02.2009 within the stipulated period of 75 days. On the day the petitioner handed over the keys of the ‘Toy Train’, the work awarded to the petitioner was amended and enhanced for which an additional amount was also sanctioned. The enhanced work was to carry out levelling of the passage where the ‘Toy Train’ was to run and also to carry out Eco-friendly Security Circle, which was also constructed by the petitioner within the time allowed to it. The ‘Toy Train’ installed by the petitioner however could not run due to the dispute between the Managing Committee of the Park ‘Ajay Udyan’ and the local administration. Since the considerable period had lapsed and the rainy season had also passed by, the railway track on which the ‘Toy Train’ was to run, got lowered down. However, the same was also repaired. In November, 2010 the petitioner received a letter of complain from the office of the Nagar Parishad, Lohardaga through its Executive Officer alleging certain defects in the materials supplied by the petitioner which was replied by the petitioner denying all the allegations. It is further submitted that the allegations levelled against the petitioner are purely civil in nature and the ingredients of “cheating” are not attracted in the present case and as such the continuance of the present criminal proceeding would amount to an abuse of the process of Court.
4. Per-contra, the learned counsel for the O.P.No.2 submits that the installation of the ‘Toy Train’ by the petitioner was of inferior quality and as such he was directed to rectify the defects. However, the petitioner did not comply the said direction and as such he committed fraud by withdrawing Rs.7,61,534/- from Nagar Parishad in connection with the said work. The Nagar Parishad Board in its meeting held on 27.09.2011 unanimously passed a resolution to lodge an F.I.R against the petitioner-firm and as such the O.P.No.2 lodged an F.I.R against the petitioner being Lohardaga P.S. Case No. 161 of 2011 for the offences under Sections 420, 406,467,468, 471 & 34 of IPC. The averments made in the present petition are false, concocted and fabricated, as the petitioner neither installed the ‘Toy Train’ within the stipulated period nor handed over the key of the same to any of the authorized person of the Nagar Parishad. It is further submitted that pursuant to the agreement entered into between the petitioner and the Nagar Parishad, the petitioner realized money on different dates on false promise and fabricated documents and illegally retained the said money without completing the work.
5. Heard the learned counsel for the parties and perused the relevant materials available on record. The thrust of the argument of the learned counsel for the petitioner is that the O.P.No.2 i
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