Vinod Agrawal vs State Of Chhattisgarh
2022 Latest Caselaw 56 Chatt

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                                                               NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR
                 Judgment Reserved on : 09/12/2021
                 Judgment Delivered on : 05/01/2022

                      CRMP No. 936 of 2021

      Vinod Agrawal S/o Shri Jagdish Prasad Agrawal, Aged
       About 58 Years, R/o 1364, Nai Basti, Jhasi Khas, Jhansi,
       Uttar Pradesh.
                                                      ---- Petitioner
                                 Versus
     1. State of Chhattisgarh, Through SHO, Rajendra Nagar
        Thana, Raipur, Chhattisgarh
     2. Sushil Pansari, S/o Late Shri Lal Pansari, Aged About 58
        Years, R/o Ashoka Millenium, New Rajendra Nagar, Ring
        Road No. 1, Raipur, Chhattisgarh
                                                  ---- Respondent

For Petitioner : Mr. Manoj Paranjape and Mr. Abhyuday Singh, Advocates.

For Respondent/State : Mr. D.P. Singh, Dy. A.G. For Respondent No.1 : Mr. Aman Tamboli, Advocate.

Hon'ble Smt Justice Rajani Dubey

CAV ORDER

1. The matter is taken up for hearing on I.A.No.01/2021, for grant of interim relief/stay.

2. The petitioner, in this application, prayed for restraining the respondents not to proceed further in respect of impugned FIR No. 0162/2021 registered on 04.08.2021 at Police Station Rajendra Nagar, Raipur, for the offence punishable under Sections 34 and 420 of the Indian Penal Code (for short 'the IPC').

3. Learned counsel for the petitioner submits that the petitioner has filed this petition under Section 482 of the Criminal Procedure Code, 1973 (for short 'the Cr.PC') for quashing the impugned FIR registered against him. The petitioner runs a business of trading of

TMT bars, ingots and other ancillary products, having its registered office at Jhansi styled as M/s Rahul Steel. Learned counsel for the petitioner further submits that on 25.06.2021, respondent No.2 sent a legal notice to the petitioner demanding Rs.41,68,282/- towards purchase of TMT Bars from him between 01.12.2020 to 18.04.2021, which in-fact was not ordered by the petitioner and replied to the said notice stating that the ledger statement annexed with the notice is false and fake and respondent's No.2 client has hatched a criminal conspiracy in collusion with the transporter and counterfeited forged and fictitious in voices and builty just to blackmail and extort money from him. Learned counsel also submits that thereafter respondent No.2 filed the impugned FIR against the petitioner. Learned counsel, referring the judgment of Hon'ble Supreme Court in the matter of State of Haryana V. Bhajan Lal1, submits that the allegation raised against the petitioner in the FIR do not demonstrate the ingredient to constitute an offence under Section 420 IPC. Respondent No.2 has not disclosed any malafide from the inception to show the dishonest intent of the petitioner in cheating him. Thus, the delayed FIR is an afterthought and an abuse of the process of law and any action by the respondent No.1 in pursuance of registration of FIR would be nothing but to harass the petitioner and violation of his fundamental right for no fault on his part. In support of submission, learned counsel placed reliance on the decisions of Hon'ble Supreme Court in the matter of M/s Neeharika Infrastructure Pvt. Ltd. V. State of Maharashtra2, Binod Kumar and others Vs. State of Bihar and another 3, Prof. R.K. Vijayasarathy and another V. Sudha Seetharam and another4, and order dated 27.11.2020 passed in the matter of Arnab Manoranjan Goswami V. State of Maharashtra (Cr.A.No.742/2020 (Arising out of SLP (Crl) No.5598/2020)).

4. On the other hand, learned State counsel opposed the prayer of interim relief.

5. Mr. Aman Tamboli, learned counsel for respondent No.2 vehemently opposing prayer for interim relief submits that the petitioner by way of his application seeking interim relief is trying 1 1992 Supp. (1) SCC 335 2 AIR 2021 SC 1918 3 (2014) 10 SCC 663 4 (2019) 16 SCC 739

to bypass the statutory remedy, which is already available to him under the law. He further submits that the petitioner has every opportunity to approach the competent Court of law seeking anticipatory bail but instead of availing the same, the petitioner has directly came before this Hon'ble High Court, which in-fact, amounts to abuse of process of Court and abuse of process of law. In support of submission, learned counsel placed reliance on the decision of Hon'ble Supreme Court in the matter of Archana Rana V. State of Uttar Pradesh and another5.

6. I have heard learned counsel for the parties and perused the material available on record.

7. Perusal of impugned FIR would show that 90 ton TMT Sariya (Iron Rods) amounting to Rs.37,80,182/- were sent to the petitioner's given address through vehicle bearing registration Nos. MP 17 HH 3290, MP 16 H 0929 and CG 04 ML 6339 of Union Transport vide bill Nos.20862087 dated 05.12.2020, 2102 dated 06.12.2020 and 2125 dated 08.12.2020 respectively. Thereafter, both the firms were asked by respondent No.2 to deposit the amount but no amount has been deposited by the petitioner. Further respondent No.2 constantly contacted the Director of both the firms over mobile phone for demand of money of Rs.51,50,003/- for supply of 120 ton Sariya (iron rods) but the petitioner stopped picking up his phone. Contents of FIR further shows that both Navin Gupta and Vinod Agrawal, Director of the Firm, have cheated respondent No.2 giving false assurance and gained monetary benefit causing loss to respondent No.2 to the tune of Rs.51,50,003/-.

8. Para 3 of Legal Notice (Annexure P/2) sent by respondent No.2 would show that the noticee i.e. the Petitioner was a regular customer. Respondent No.2 had provided credit facility to the petitioner and, in pursuance to the purchase order, respondent No.2 supplied the goods from time to time and raised various invoices from time to time with regard to the supply of the TMT Bars and the petitioner made part payment to respondent No.2 against the invoices issued to the petitioner. Para 3 of the Legal Notice would also show that on settlement of account and on reconciliation of accounts, it was revealed that for the year

5 (2021) 3 SCC 751

01.12.2020 to 18.04.2021, a sum of Rs.41,68,282/- is outstanding and due against the petitioner. However, in spite of several demands and reminders, the petitioner has failed and neglected to pay the admitted balance amount of Rs.41,68,282/- till date.

9. The petitioner filed reply to the Legal Notice (Annexure P/2) and sent to the respondent No.2. Relevant para 3 of the reply is reproduced herein below:-

"3. That you have not provided the complete ledger statement along with your notice under reply which may be verified by my clients whether your demand and allegations is notice are genuine or not. In absence of complete ledger statement regarding disputed period, the notice sent by you against my clients defective and not binding upon my clients."

10. In support of reply to the notice, the petitioner has also filed various statement of account (Annexure P/4), which shows that petitioner and respondent No.2 has business relationship and it is clear from impugned FIR itself that alleged transactions were of 05.12.2020,06.12.2020 and 08.12.2020. It is admitted fact that petitioner is regular customer of respondent No.2.

11. Hon'ble Supreme Court in Prof. R.K. Vijayasarathy (supra) held in para 24, which read thus:-

"24. In Binod Kumar v. State of Bihar (2014) 10SCC 663, certain amounts were due and payable to a contract worker. When the amount due was not paid due to a termination of the contract, the worker filed a criminal case against the appellant for criminal breach of trust. The appellant's petition under Section 482 of the Code of Criminal Procedure for quashing was dismissed by the High Court. A two Judge Bench of this Court examined the ingredients of the offence and whether the complaint on its face disclosed the commission of any offence. This Court quashed the criminal proceedings holding thus : (SCC pp. 671-72, paras 14 & 18-19)

"14. At this stage, we are only concerned with the question whether the averments in the complaint taken

at their face value make out the ingredients of criminal offence or not....

                               *      *         *       *

             18.   In    the       present          case,   looking   at    the

allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property....

19. Even if all the allegations in the complaint taken at the face value or true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed."

12. In the light of above judgment of Hon'ble Supreme Court, in this case also respondent No.2 made complaint before police on the ground that the petitioner did not make payment to the respondent in pursuance to the questioned invoices raised by him. It is admitted that the petitioner is regular customer of respondent No.2, thus, prima-facie, it appears that the dispute between the parties is civil in nature.

10. Considering the aforesaid facts and circumstances of the case and in the light of judgment of Hon'ble Supreme Court in the matter of R.K. Vijayasarathi (supra), I.A.No. 01/2021, for grant of interim relief stands allowed and further proceedings of impugned FIR

No.0162 dated 04.08.2021 registered at Police Station Rajendra Nagar, District Raipur (C.G.), are stayed till the final disposal of the petition.

12. All the contentions raised by the parties are left open which may be decided at the time of final hearing.

List this case for final hearing in due course.

Sd/-

(Rajani Dubey) Judge

pekde