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2019 Supreme(Jhk) 526
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Kishna Kant Dubey & Ors. - Appellants
Versus
The State of Jharkhand & Ors. - Respondents
Cr.M.P. No. 515 of 2014
Decided On : 21-01-2019
For the Petitioner: Mr. Indrajit Sinha Mr. Vijay Kant Dubey
For the Respondent Mr. A.P.P., Mr. Rahul Kumar, Mr. Vishal Kumar.
Headnote:
Indian Penal Code,1860 - Sections 406/420/34 - Criminal Procedure Code,1973 - Section 482 - FIR - investigation - Bank a/c of complainant was not agreeable to complainant said complaint was referred for lodging an FIR and investigation of same and thus was lodged against petitioners submitted that no offence is made out against petitioners- M/S Sunbeam Trading & Investments Ltd had agreed to supply iron ore to firm of complainant and as such there is no inducement on part of accused persons- rest quantity of iron ore was not supplied due to lack of statutory clearances as mining work was stopped- In complaint itself it has been stated that amount paid to company has been refunded complainant through RTGS but same is not agreeable to complainant which clearly goes to show that no ingredient is attracted against petitioners- On perusal of entire complaint it would be evident that there is commercial dispute between parties arising out of aforesaid transaction –Held, Court to appreciate evidence and its truthfulness or sufficiency inasmuch as it is function of trial court- High Court’s inherent powers be it civil or criminal matters is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution- If averments in complaint do not constitute an offence Court would be justified in quashing proceedings in interest of justice Court has held that if it established that intention of accused was dishonest at very time when he had made a promise and had entered into a transaction with complainant inducing him to part with his property or money same would be a criminal offence and accused would be guilty of offence of cheating- However if it is established that a promise made by accused has subsequently not been kept criminal liability cannot be foisted on accused and only right which complainant acquires is remedy for breach of contract in a civil court case that supply was not made to him at all- It may be true that there was shortfall in supply to some extent- However it cannot be a cogent ground for alleging offences of “cheating” and “criminal misappropriation” against petitioners- Moreover no specific allegation has been made against petitioners in complaint rather same is vague and omnibus in nature- It settled principle of law that jurisdiction may be exercised by High Court to prevent abuse of process of Court or otherwise to secure ends of justice- Any case of civil nature cannot be given cloak of a criminal proceeding so as to get speedy remedy- Even if uncontroverted allegations made in present FIR are taken to be true fraudulent intention of petitioners is missing in same so as hold petitioners liable for criminal consequence - Petition allowed
ORDER :
The present petition has been filed for quashing the entire criminal proceeding in connection with Gua P.S Case No. 05 of 2014 (G.R. No. 63 of 2014) for the offences under Sections 406/420/34 IPC lodged against the petitioners, now pending in the Court of the Chief Judicial Magistrate, Chaibasa.
2. The learned counsel for the petitioner submits that a complaint case being Complaint Case No. 8 of 2014 was filed by Alok Kumar Chaudhary (O.P. No.2) alleging inter alia that it was agreed by the accused persons to supply iron ore (ROM) to the O.P. No.2 (complainant) through M/S Sunbeam Trading & Investments (P) Ltd. (accused No.2) from the Mines of M/S Rameshwara Jute Mills Limited, as the same was being operated by M/S Essel Mining Corporation Ltd. (accused No.1). The value of iron ore was taken from the complainant and the delivery orders were issued on 21.07.2010 for 2500 MT and on 04.09.2010 for 5000 MT @ Rs.850/- and Rs.500/- per MT respectively. However, out of 2500 MT of iron ore, 2153 MT was delivered and the rest quantity of 5347 MT is still to be delivered. The amount subsequently refunded through RTGS to the Bank a/c of the complainant was not agreeable to the complainant. The said complaint was referred under Section 156(3) Cr.P.C for lodging an F.I.R and investigation of the same and thus Gua P.S Case No. 05 of 2014 was lodged against the petitioners.
3. It is further submitted that no offence under Sections 406/420/34 IPC is made out against the petitioners. The M/S Sunbeam Trading & Investments (P) Ltd. had agreed to supply the iron ore to the firm of the complainant and as such there is no inducement on the part of the accused persons. The rest quantity of iron ore was not supplied due to lack of statutory clearances, as the mining work was stopped. In the complaint itself it has been stated that the amount paid to the company has been refunded to the complainant through RTGS, but the same is not agreeable to the complainant which clearly goes to show that no ingredient of Section 406 IPC is attracted against the petitioners. On perusal of the entire complaint, it would be evident that there is a commercial dispute between the parties arising out of the aforesaid transaction.
4. The learned counsel for the O.P. No.2 submits that the accused persons with a common intention to commit fraud, received the money in advance. However, they did not supply the balance quantity of iron ore and after sometime, returned the advance money. The temporary remittance of money amounts to misappropriation and its utilization and conversion for one’s use amounts to criminal breach of trust. Since the FIR prima facie discloses the offence of cheating and criminal breach of trust, the criminal proceeding was initiated against the accused persons. Though the petitioners were not in the payroll of the accused company, yet they took part in all the affairs of the accused company. Thus, they cannot run away from the liabilities towards which they have exposed themselves by reasons of their wrongful acts.
5. Heard the learned counsel for the parties and perused the relevant materials available on record. The learned counsel for the petitioners has submitted that the ingredients for constituting the offences under Sections 406 & 420 IPC are not made out in the present case, rather the dispute raised by the O.P. No.2 is purely a commercial dispute for which he may take appropriate civil remedy. In support of his contentions, the learned counsel for the petitioners puts reliance on the judgments of the Hon’ble Supreme Court rendered in the cases of Indian Oil Corporation Vs. NEPC India Ltd. & Ors. reported in (2006) 6 SCC 736 and Rashmi Jain Vs. State of U.P & Anr. reported in (2014) 13 SCC 553. On the other hand, the learned counsel for the O.P. No.2 puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of V. Ravi Kumar Vs. State of Tamilnadu reported in 2018 SCC Online SC 2811.
6. Before going to the merit of the cas
