Jai Kumar Goyal & Ors vs State Of West Bengal & Anr
2023 Latest Caselaw 7182 Cal

           IN THE HIGH COURT AT CALCUTTA
                (Criminal Revisional Jurisdiction)
                          Appellate Side

Present:
Justice Bibhas Ranjan De


                         C.R.R. 2162 of 2016
                       Jai Kumar Goyal & Ors.
                                  Vs.
                      State of West Bengal & Anr.


For the Petitioners                     :Mr. Sourav Chatterjee, Adv.
                                         Mr. Suryannel Das, Adv.
                                         Mr. Aditya Mondal, Adv.
                                         Mr. Chiranjit Pal, Adv.


For the State                            :Mr. Bidyut Kumar Ray, Adv.
                                         Mr. Pratik Bose, Adv.


For the opposite party No. 2            :Mr. Sudipto Moitra, Adv.
                                         Mr. Vijay Verma, Adv.
                                         Mr. Dwaipayan Biswas




Heard on                                :19.07.2023,07.08.2023,
                                        16.08.2023, 17.08.2023,
                                  2

                                       28.08.2023, 13.09.2023,
                                       25.09.2023, 26.09.2023


Judgment on                          : 17th October, 2023


Bibhas Ranjan De, J.

1. The revision application has been filed with a prayer for

quashing a First Information Report lodged before Electronics

Complex, Police Station Case No. 03 of 2016 dated 06.01.2016

under Section 418/420/406/506/34/120B of the Indian

Penal Code.

Facts:-

2. The proceeding arose out of an application under Section

156(3) of the Code of Criminal Procedure (for short CrPC) filed

by the opposite party no. 2 alleging, inter alia, that petitioners

approached the opposite party no. 2/ company to provide

security personnel to be deployed at the site office at Kurunti

P.O Moutunga, District-Dhenkana, Odisha. To that effect the

deal was taken place in the office of the opposite party no. 2

who then provided the security service to the petitioners

company as per work order dated 13.09.2011. From then on

opposite party no. 2 started providing its service by deploying

security personnel as per work order for the period between

10.10.2011 to 31.05.2013. But, the petitioners did not make

the payment of all sums in the manner provided in the work

order dated 13.09.2011 in spite of repeated reminders.

Thereby, petitioners/ accused had entered into a deep rooted

criminal conspiracy amongst themselves to cheat the opposite

party no. 2/ complainant. The petitioners/accused, thereby,

induced opposite party no. 2/complainant to invest a huge

sum with false and fake promises. As a last resort,

representative of the opposite party no. 2/ complainant

company visited the office of the petitioners/accused for a

amicable settlement but the accused along with other officials

of their company pounced upon the representative of the

opposite party no. 2/complainant and abused in filthy

languages even with threat of life in case of further visit at

their office.

3. The said complaint under Section 156(3) of CrPC was

forwarded to Electronic Complex Police Station where the

same was registered under FIR no. 03 /16 dated 06.01.2016

under Section 418/420/406/506/34/120B of the Indian

Penal Code and the case was put into investigation.

Argument Advanced:-

4. Ld. Advocate, Mr. Sourav Chatterjee, appearing on behalf of

the petitioners/ accused advanced his argument on two

scores. Firstly, Mr. Chatterjee has submitted that the

complaint under Section 156(3) of CrPC was filed without

complying the Provision of Section 154(1) & 154(3) of CrPC. In

the second place, Mr. Chatterjee has submitted that gamut of

the complaint under Section 156(3) of CrPC spells out a case

of breach of contract on account of non-payment of agreed

amount giving rise to a civil action.

5. In support of his argument Mr. Chatterjee relied on the

following cases:-

 Anil Mahajan Vs. Bhor Industries Ltd.and another

reported in 2005 (10) SCC 228

 Hotline Teletubes and Components Limited and others

Vs. State of Bihar and another reported in 2005 (10)

SCC 261

 Uma Shankar Gopalika Vs. State of Bihar and another

reported in 2005 (10) SCC 336

 Murari Lal Gupta Vs. Gopi Singh reported in 2005 (10)

SCC 699

 Veer Prakash Sharma Vs. Anil Kumar Agarwal &

another reported in 2007 (7) SCC 373

 V.Y. Jose and another Vs. State of Gujarat and another

reported in 2009 (3) SCC 78

 Dalip Kaur and others Vs. Jagnar Singh and another

reported in 2009 (14) SCC 696

 Medmeme, LLC & others Vs. Ihorse Bpo Solutions

Private Limited reported in 2018 (13) SCC 374

 M M Carbon Products Private Limited Vs. State of West

Bengal reported in 2019 SCC Online Cal 2715

 Priyanka Srivastava & Anr. Vs. State of Uttar Pradesh

& Ors. reported in 2015 (6) SCC 287

 Babu Venkatesh & Ors. Vs. State of Karnataka & Ors.

reported in 2022 (5) SCC 639

 MuKul Roy Vs. State of West Bengal & Ors. reported in

2018 SCC Online Cal 4861

 Haji Iqbal alias Bala through S.P.O.A. Vs. State of

Uttar Pradesh & Ors. reported in (2023) SCC Online SC

 Haji Iqbal alias Bala through S.P.O.A. Vs. State of

Uttar Pradesh & Ors. reported in (2023) SCC Online SC

6. Ld. Advocate, Mr. Sudipto Moitra, appearing on behalf of the

opposite party no. 2 has countered the argument advanced on

behalf of the petitioners with regard to non-compliance of

Section 154(1) &154(3) of the CrPC by referring to a case of

HDFC Security Limited and others Vs. State of

Maharashtra reported in 2017 (1) AICLR 910 (SC) and

Dharmeshbani Vasudevbhai & Ors. Vs. State of Gujart &

Ors reported in (2009) 6 SCC 567 and submitted that

principle laid down in Priyanka Srivastava (supra) can be

distinguished.

7. Mr. Moitra has further submitted that allegation made in

156(3) CrPC has categorically spelt out a case of dishonest

intention of the petitioners to deceive the opposite party no.

2/company by not making payment agreed upon between the

parties. Mr. Moitra submitted that non-payment of agreed

money cannot be said to be a civil dispute in all the cases

when either of the party enters into an agreement with

dishonest intention to breach the agreement for wrongful gain.

According to Mr. Moitra the contentions of the application

under Section 156(3) of CrPC clearly disclose a cognizable

offence required to be registered and investigated.

8. In support of his contention, Mr. Moitra referred to the

principle laid down in the following cases:-

 State of M.P. Vs. Awadh Kishore Gupta & Ors. reported

in 2004 SCC (Cri) 353

 Ravindra Kumar Madhanlal Goenka & Anr. Vs.

Rugmini Ram Raghav Spinners Private Limited reported

in (2009) 11 SCC 529

 S.M. Datta Vs. State of Gujrat & Anr. reported in (2001)

7 SCC 659

 Dharmeshbani Vasudevbhai & Ors. Vs. State of Gujrart

& Ors. reported in (2009) 6 SCC 567

 Rajesh Bajaj Vs. State NCT of Delhi & Ors. reported in

(1999) SCC (Cri) 401

 M. Krishnan Vs. Vijay Singh & Anr. reported in (2001) 8

SCC 645

 HDFC Securities Ltd & Ors. Vs. State of Maharashtra &

Anr. reported in 2017 (1) AICLR 910 (SC)

 Ganga Dhar Kalita Vs. The State of Assam & Ors.

reported in (2016) 1 C Cr LR (SC) 209

 State of Andhra Pradesh Vs. Bajjoori Kanthaiah & Anr.

reported in (2009) 1 SCC (Cri) 481

 Skoda Auto Volkswagen India Pvt. Ltd. Vs. State of

Uttar Pradesh & Ors. reported in 2021 (1) SCC 2004

 Priti Saraf & Anr. Vs. State of NCT of Delhi & another

reported in AIR 2021 (SC) 1531

 State of Madhya Pradesh Vs. Surendra Kori reported in

(2013) 1 SCC (Cri) 247

 Reba Kundu Vs. The State of West Bengal & Anr.

reported in CRR 1584 of 2018

9. Ld. Advocate, Mr. Bidyut Kumar Ray, appearing on behalf of

the State has relied on the evidence collected so far in course

of investigation.

Decision:-

10. After going through the decisions of HDFC Security

Limited (supra), Dharmeshbani Vasudevbhai (supra)

Priyanka Srivastava (supra) I find that principle laid down in

Priyanka Srivastava (supra) and Babu Venkatesh (supra)

cannot be said to have been distinguished.

11. In Priyanka Srivastava (supra) it was held that there

has to be prior applications under Sections 154(1) & 154(3) of

CrPC before filing a petition under Section 156(3) of the CrPC.

Both the aspects should be clearly spelled out in the

application and necessary documents to that effect should be

filed and it is also mandatory on the part of the applicant to

get the application supported by an affidavit to that effect. It is

done to ensure that the person making the application should

be conscious and also endeavour to see that no false affidavit

is made.

12. In Babu Venkatesh (supra) it was further held that prior

to the filing of a petition under Section 156(3) of CrPC, there

has to be applications under Sections 154(1) &154(3) of CrPC.

The Court further emphasized the necessity to file an affidavit

so that the persons making the application should be

conscious and not make false affidavit. As the persons could

be deterred from casually invoking authority of the Magistrate,

under Section 156(3) of CrPC thereby.

13. Now coming back to the case at hand, I find that the

application under Section 156(3) of the CrPC was filed without

complying any of the Provisions under Section 154(1) &154 (3)

of CrPC. On the other hand, it is stated in the affidavit itself

that no complaint was lodged either before Electronics

Complex Police Station or in any other Police Stations.

Therefore, the affidavit makes it clear that the complainant

submitted application under Section 156(3) of CrPC before the

Court of Learned Additional Chief Judicial Magistrate, without

complying any of the provisions required in view of the

principle laid down in Priyanka Srivastava (supra) and Babu

Venkatesh (supra) on this score registration of FIR on the

basis of application under Section 156(3) of CrPC is bad in

law.

14. Now, I propose to come to the issue of allegation made in

the application under Section 156(3) of CrPC for exercising

jurisdiction under Section 482 of the CrPC. On carefully going

through the decisions relied on behalf of the parties to this

revision application, a settled principle got enunciated that the

allegations made in the complaint even if taken on their face

value and accepted in their entirety, do not prima facie

constitute any offence or make out a case against the accused

or where allegations made in the complaint and the evidence

produced in support of the same do not disclose the

commission of any offence and make out a case against the

accused, it is open to the High Court in the exercise of extra

ordinary inherent power to quash the complaint or FIR.

15. Through catena of decisions Hon'ble Apex Court has held

that mere failure of a person to keep up promise subsequently,

a culpable intention right at the beginning, that is, when he

made the promises cannot be presumed. A distinction has to

be kept in mind between mere breach of contract and the

offence of cheating. It depends upon the intention of the

accused at the time of inducement. The subsequent conduct is

not the sole test. Mere breach of contract cannot give rise

to criminal prosecution for cheating unless fraudulent,

dishonest intention is shown at the beginning of the

transaction.

16. After delving into the facts and circumstances of this

case and also keeping an eye to the decisions relied on behalf

of the parties to this revision applications, it is primarily a

case where the opposite party no. 2 had alleged breach of

contract on part of the petitioner in not making entire

payments for the services rendered. On the other hand, it is an

admitted fact that, considerable amount was paid by the

petitioner to the opposite party/company for the services

rendered. It is pertinent to mention here that evidence so far

collected during course of investigation also substantiates

payment of considerable amount. There was also an allegation

by the opposite party no. 2 in the 156(3) complaint that the

petitioner company threatened and used criminal intimidation

to the representatives of the opposite party no. 2/company

which remained uncorroborated by the evidence collected so

far during investigation also. As a result, claim of initial

deception on part of the petitioners to induce the opposite

party no. 2 while entering into the work order agreement also

stands nullified.

17. It is further pertinent to mention that tone and tenor of

the application under Section 156(3) of the CrPC is that

nothing was paid in lieu of security services provided by

opposite party no. 2 though evidence collected during

investigation makes it clear that considerable amount was

paid to the opposite party no. 2/company in course of existing

business transaction. Therefore, suppression of fact can be

said to have been lebelled against opposite party no. 2/

complainant.

18. From the aforesaid discussion, it is clear that the dispute

between the parties is of a civil nature, proceedings of which

should be initiated in the appropriate forum having

jurisdiction in order to get proper remedy.

19. As a sequel, the proceedings in connection with

Electronics Complex Police Station case no. 03 of 2016 dated

06.01.2016 under Section 418/420/406/506/34/120B of the

Indian Penal Code stands quashed.

20. The revision application being no. CRR 2162 of 2016

stands allowed.

21. Case diary be returned.

22. All parties to this revisional application shall act on the

server copy of this order downloaded from the official website

of this Court.

23. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]