Crl.Pet./407/2013
2025 Latest Caselaw 4285 Gua

Gauhati High Court

Crl.Pet./407/2013 on 20 March, 2025

  GAHC010007612013




                                                2025:GAU-AS:3039

                IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)



                     CRIMINAL PETITION NO.407 OF 2013

                              Sri. Ranadhir Sharma,
                              S/o- Late Nalini Sarma,
                              R/o Abhayapuri Town Ward No.3,
                              P.S- Abhayapuri,
                              District- Bongaigaon, Assam.


                                                 .......Petitioner

                                     -Versus-

                         1.   The State of Assam.
                         2.   Md. Sofiur Mondal,
                              S/o- Md. Sukur Ali Mondal,
                              R/o- Village Bortolowa,
                              P.S- Dhaligaon, District-
                              Chirang, BTAD, Assam

                                             .......Respondents


                         -BEFORE-

       HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

 For the Petitioner(s)   : Mr. D. Choudhury, Advocate.

 For the Respondent(s)   : Mr. P. Borthakur, Additional Public
                           Prosecutor, Assam.



                                                     Page 1 of 8
 Date of Hearing        : 20.03.2025.

Date of Judgment       : 20.03.2025.



             JUDGMENT & ORDER (ORAL)

Heard Mr. D. Choudhury, learned Counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent. None appears for the respondent No.2/complainant.

2. It appears that this Court by order dated 02.03.2015 has held that notice has been duly served on the respondent No.2. However, despite of receipt of notice, respondent No.2 has not appeared before this Court till date.

3. This petition is filed under Section 482, read with Section 401 of the Criminal Procedure Code, 1973 seeking quashing of the complaint case being C.R. Case No. 213/2011 filed by the respondent No.2 before the learned Chief Judicial Magistrate, Bongaigaon corresponding to Dhaligaon P.S. Case No. 123/2011 under Section 420 of Indian Penal Code (hereinafter referred to as "IPC") and the subsequent Charge-sheet No. 69/2012 dated 27/06/2012, under Section 417/420 of IPC and the order dated 11/10/2012 passed by the learned Chief Judicial Magistrate, Bongaigaon in G.R. Case No. 641/2011 taking cognizance of the offence under Section 417/420 of IPC.

4. It appears that a complaint case was filed by respondent No.2 alleging that the petitioner received two

contracts of BGR Oil Refinery and accordingly, as sub- contractor, the said works to the respondent No.2 in respect of which a contract was executed between them on 11.10.2010 and a Power of Attorney was also give to the respondent No.2 on 17.10.2010. It is alleged that though the respondent No.2 executed the aforesaid two works by spending his own money, however, the petitioner did not open a joint account as per the terms of the contract and instead received running bill in order to misappropriate the same behind the back of the complainant. Accordingly, the complaint case was registered under Section 420 of IPC and after investigation, the Charge-sheet was submitted under Section 417/420 of IPC and thereafter the Court of Chief Judicial Magistrate, Bongaigaon took cognizance by order dated 11.10.2012 against the petitioner under Section 417/420 of the IPC. Accordingly, the instant criminal petition has been filed for quashing the subject FIR, Charge-sheet as well as the entire criminal proceeding.

5. Mr. D. Choudhury, learned Counsel for the petitioner submits that on the face of the allegation made out in the complaint, it is manifestly apparent that the dispute is purely a civil one and hence, continuation of criminal proceeding against the petitioner is wholly unjustified.

6. Mr. P. Borthakur, learned Additional Public Prosecutor, Assam fairly submits that no criminality

whatsoever, arises out of the allegation set out in the present FIR.

7. I have considered the submissions made by the learned Counsel for the parties and also perused the material available on record.

8. Apt to reproduce the complaint filed by the respondent No.2 for ready reference:

"TRANSLATED COPY OF THE COMPLAINT

In the court of CJM Bongaigaon

Complainant- Md Safiur Mondal (23) S/O Md Sukur Ali Mondal Vill Bortolowa PS Dhaligaon Dist- Chirang, BTAD Assam.

Accused- Sri Ranadhir Sarma, S/O Lt Nalini Sarma, R/O Abhayapuri Town,Ward No.3, P.S-Abhayapuri, District - Bongaigaon, Assam.

Presently residing at:

C/O- Sri Hemanta Sarma B.O.C Gate, Bongaigaon P.S and Dist Bongaigaon, Assam.

Witness- 1.Aynal Hoque S/O-Lt Ismail SK R/O- Bortolowa PS- Dhaligaon Dist- Chirang, BTAD, Assam

Date, time and place of occurrence-

On 17/09/2011, at about 10.00 A.M in front of Gate No.1 of BGR Oil Refinary under Dhaligaon Police Station.

Offence under section- U/S-420 I.P.C

Your Honour, The complaint of the complainant is that:

1. The complainant is the permanent resident of the above mentioned address and use to do different types of sub-contract.

2. The accused is the permanent resident of the above mentioned address and is a contractor and in respect of that known to the complainant.

3. The accused has received two contracts of BGR Oil Refinery bearing Tender No.CC10YP 167/763, Work Order No.23210491 dtd. 27/08/2010 whose total value is Rs-4,27,500/-(Four Lakhs twenty seven thousand five hundred only) and Tender No.CC10YP 130/675, Work Order No.23197703 dated 05/08/2010 whose total value is Rs-

1,58,815.49/-(One Lakh fifty eight thousand eight hundred fifteen and forty nine Paisa) respectively.

4. After getting the above mentioned two contracts works the accused has sub-contracted the above works to the complainant and in respect of that on last 11/10/2010 a Deed of contract has been executed between the complainant and the accused and on 17/10/2010 the accused has given Power of Attorney to the complainant. Copy of the Deed of contract, dtd 11.10.2010 and Power of Attorney dtd 17.10.2010 is annexed with the complaint.

5. Though the complainant executed the aforesaid two works by spending money from his own pocket, the accused did not open a joint account as per terms of the contact and instead received running bill and the accused tried to misappropriate the same behind the back of the complainant. After much persuasion regarding payment out of running bill the accused

approximately paid an amount of Rs. 1,50,000/- and refused to open the joint account.

6. The accused tried to misappropriate the entire amount of the contract behind the back of the complainant by not opening the joint account as per the clause of the contract.

7. On last 17/09/2011 when the complainant told about this to the accused in front of BGR Refinery No.1 Gate, the accused refused to perform the contract.

8. The witnesses knows the case and will prove the same.

Therefore, I humbly prays before your honour to forward the copy of the complaint to the Dhaligaon Police Station to investigate the case.

Date- 02/09/11

AFFIDAVIT

I, Md Safiur Rahman, I am the complainant of the complaint and as such I am well aware of the facts and circumstances of the case and verily believe those to be true and today on 02/09/11 I have swear this affidavit.

Received and registered vide Dhaligaon PS Case No.123/2011 u/s 420 IPC. SI Suren Das will take investigate of the case.

Sd- illegible Officer-in-charge Dhaligaon Police Station Dist- Chirang, BTAD 30/09/2011"

9. It is apparent on reading of the FIR that due to breach of the terms of the contract, the said complaint has been filed. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or

dishonest intention is shown right at the beginning of the transaction. In other words, to hold a person guilty of cheating, it is necessary to show that he has fraudulent or dishonest intention at the time of making promise.

10. It further appears that the Magistrates' Court on the basis of the material collected by the Investigating Officer took cognizance under Section 417/420 of IPC against the petitioner. In order to constitute an offence under Section 417/420, the complaint must contain averments showing the act of deception and fraudulent inducement. In the present case, there is no allegation of deception and fraudulent inducement. Therefore, the essential ingredients of Section 417/420 of IPC being absent on the face of the allegation made out in the complaint, the order of the Chief Judicial Magistrate, Bongaigaon taking cognizance against the petitioner under Section 417/420 of IPC appears to be palpably and manifestly erroneous in law.

10. Accordingly, the complaint case being C.R. Case No. 213/2011 filed by the respondent No.2 before the learned Chief Judicial Magistrate, Bongaigaon corresponding to Dhaligaon P.S. Case No. 123/2011 under Section 420 of IPC, the subsequent Charge-sheet No. 69/2012 dated 27/06/2012, under Section 417/420 of IPC, the order dated 11/10/2012 passed by the learned Chief Judicial Magistrate, Bongaigaon in G.R. Case No. 641/2011 taking cognizance of the offence under Section 417/420 of

IPC, and all other subsequent orders passed thereafter are set aside and quashed.

11. The criminal petition accordingly, stands allowed and is disposed of.

12. Accordingly, interim order is hereby made absolute.

JUDGE

Comparing Assistant