Jharkhand High Court
M/S Bunge India Pvt. Ltd. vs The State Of Jharkhand on 8 July, 2021
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(Cr.) No. 227 of 2018
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1.M/s Bunge India Pvt. Ltd., a company registered under Indian Companies
Act, 1956 having its office at the Capital, 601C & 601d, C-70, G Block, Bandra
Kurla Complex, Bandra East Mumbai-400051 through its Authorised Signatory
Smt. Deepali Heroor, wife of Mr. Mayur Heroor, age 35 years resident of
Mumbai serving for employment at the office of Bunge India Private Limited,
the Capital, 601C and 601d C-71 G.Block Bandra Kurla Complex, PO and PS
Bandra, Bandra East Mumbai-400051 Maharashtra
2.Samir Jain, Managing Director, M/s Bunge India Private Limited, having its
office at the Capital, 601C & 601d, C-70, G Block, Bandra Kurla Complex,
Bandra East Mumbai-400051 son of Mr. Prempal Jain, age 46 years resident
of Mumbai serving for employment at the office of Bunge India Private
Limited, the Capital, 601C and 601d C-70 G.Block Bandra Kurla Complex, PO
and PS Bandra, Bandra East Mumbai-400051 Maharashtra
3.Sanjay Kumar Singh, Sales Manager, M/s Bunge India Pvt. Ltd., having
office at 1925, HEC Colony, PO Dhurwa, PS Jagarnathpur, Town and District
Ranchi-834004, son of late Kamal Deo Prasad Singh, age 45 years resident of
Qtr. No.DT 1925, HEC Colony, Post-Dhurwa, PS Jagarnathpur, District Ranchi,
pin -834004 ..... Petitioners
-- Versus --
1.The State of Jharkhand
2.Ramu Debuka, s/o late Ratan Lal Agarwal, partner of M/s Bhawani Shakar
Store, a partnership firm having its office at 7 Mill Area, Sakchi, PO and PS
Sakchi, Town Jamshedpur, District Singhbhum (East.)
...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. N.K. Pasari, Advocate
For the State :- Mr. Manoj Kumar No.3, Advocate
For the O.P.No.2 :- Mr. Shankar Lal Agarwal, Advocate
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7/08.07.2021 Heard Mr. N.K. Pasari, the learned counsel for the petitioners,
Mr. Manoj Kumar No.3, the learned State counsel and Mr. Shankar Lal
Agarwal, the learned counsel for the O.P.No.2.
2. This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this matter
has been heard.
3. The petitioners have filed this petition for quashing the entire
criminal proceeding in connection with Sakchi P.S.Case No.110/2018,
corresponding to G.R. No.1617/2018, registered under sections 406, 420 and
34 of the IPC.
4. The complaint case was filed stating therein that in order to
facilitate its trade, the petitioner no.1 is required to appoint various
distributors on a 'non-exclusive basis' with a consideration and policies which
are mutually agreed between the parties, that respondent no.2 was
appointed as one of the distributor for the sale and operations for markets in
Jamshedpur and surrounding markets, that it is an industry wide practice to
accept security deposit from the distributor for the due performance of the
business relationship, accordingly, petitioner no.1 accepted security deposit
of Rs.1,25,000/-, that during the business arrangement between the
petitioner and the respondent no.2, the petitioner has observed several
discrepancies in the operations and trading manner of the respondent, which
was duly pointed out to the respondent no.2, however, respondent no.2
miserably failed to perform, that knowing the business performance of the
respondent no.2, petitioner still provided ample opportunities for respondent
no.2 to better its operations, but all efforts went in vain, that respondent
no.2 issued the resignation letter dated 31.08.2016 to terminate the business
relation and also raised claim and request to refund the security deposit, for
sake of brevity, let this letter be referred to as 'the said resignation letter',
that the said resignation letter was duly accepted by petitioner no.3 and it
was verbally informed to the respondent no.2 that all claims would need
supporting documents, that the petitioner no.1 refunded the security deposit
amount of Rs.1,25,000/- to the respondent no.1 along with interest on the
same of Rs.93,606.58, that for the balance amount of the claim, for sake of
brevity be referred to as 'part claim' the respondent was communicated to
share valid supporting document which are yet to be received inasmuch as
till date the respondent no.2 has not provided any valid supporting for the
such claims; instead, respondent no.2 issued legal notice through one
advocate Kailash Kumar Agarwal dated 14.4.2017, that the petitioner no.1's
sales personnel met with the respondent no.2 and reiterated to share the
claim supporting documents, which respondent no.2 miserably failed again.
5. The learned court referred the case under section 156(3) Cr.PC
for proper investigation by the police. The investigation has not been
completed as yet as on 24.08.2018 interim order has been passed in this
case by this Court.
6. Mr. Pasari, the learned counsel for the petitioners submits that
this is a case arising out of a commercial transaction wherein the criminal
proceeding has been initiated against the petitioners. He submits that no
case under sections 406/420 IPC are made out as the ingredients of these
sections are absent in the complaint. He submits that in the complaint
petition itself the respondent no.2 has admitted that the petitioners have
paid security deposit of Rs.1,25,000/- with interest and Rs.93,606.58p paid
to the complainant and assured to pay rest amount later. The complainant
asked him and demanded to pay the rest amount of Rs.2,09,553/- to the
accused person. Mr. Pasari, the learned counsel submits that a total sum of
Rs.2,18,606/- has been paid. He submits that this carries interest amount on
the security deposit.
7. Mr. Agarwal, the learned counsel appearing for the O.P.No.2
submits that there is ingredient of section 406/420 IPC and that is why the
court has rightly referred the matter under section 156(3) Cr.PC.
8. Mr. Manoj Kumar, the learned counsel appearing for the State
submits that there are ingredients of those sections and that is why the court
has rightly referred the matter under section 156(3) Cr.P.C.
9. Cheating is described under section 415 IPC which suggest
that however, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to delivery any property to any person, or
to consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to 'cheat'.
10. So far as section 406 IPC is concerned, that is the punishment
of criminal breach of trust. Criminal breach of trust is defined under section
405 IPC. Section 415 IPC defines cheating and in order to constitute an
offence of cheating there must be fraudulent or dishonest intention at the
time of making promise. It is well known that for section 420 IPC there
must be inducement from very beginning to cheat which is absent in the
case in hand. In this regard, a reference may be made in the case of "Vesa
Holdings P.Ltd. and Anr. v. State of Kerala and Ors." reported in 2015 (2) East
Cr.C. 226 (SC). Paragraph nos. 8 and 9 of the said judgment are quoted
hereinbelow:
"8. From the decisions cited by the appellant, the
settled proposition of law is that every breach of contract
would not give rise to an offence of cheating and only in those
cases breach of contract would amount to cheating where
there was any deception played at the very inception. If the
intention to cheat has developed later on, the same cannot
amount to cheating. In other words for the purpose of
constituting an offence of cheating, the complainant is
required to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation.
Even in a case where allegations are made in regard to failure
on the part of the accused to keep his promise, in the absence
of a culpable intention at the time of making initial promise
being absent, no offence under Section 420 of the Indian Penal
Code can be said to have been made out.
9. It is true that a given set of facts may make out a
civil wrong as also a criminal offence and only because a civil
remedy may be available to the complainant that itself cannot
be a ground to quash a criminal proceeding. The real test is
whether the allegations in the complaint disclose the criminal
offence of cheating or not. In the present case there is nothing
to show that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC. In our view
the complaint does not disclose any criminal offence at all.
Criminal proceedings should not be encouraged when it is
found to be malafide or otherwise an abuse of the process of
the court. Superior courts while exercising this power should
also strive to serve the ends of justice. In our opinion, in view
of these facts allowing the police investigation to continue
would amount to an abuse of the process of court and the
High Court committed an error in refusing to exercise the
power under Section 482 Criminal Procedure Code to quash
the proceedings."
11. This Court in a proceeding under section 482 Cr.PC is
required to be circumspect in considering such application as this Court
cannot conduct a roving enquiry or sift through the evidences if the same
are not unimpeachable in nature. However, if on considering the
allegations and the documents which are not denied by the opposite
party no.2 this Court can exercise its inherent power under Section 482 of
Cr.P.C to prevent the abuse of the process of the Court and the miscarriage
of justice. Section 482 Cr.PC and Article 226 of the Constitution of India are
on the same footing as has been held by the Hon'ble Supreme Court in the
case of "Pepsi Foods Limited and Anr. v. Special Judicial Magistrate" reported
in (1998) 5 SCC 749. This case is arising out of commercial transaction.
There is no deceiving by the petitioners from initial stage which is mandatory
for proving under section 420 IPC which is absent in the case in hand.
12. Having found merit in this application, the same is allowed.
The entire criminal proceeding in connection with Sakchi P.S.Case
No.110/2018, corresponding to G.R. No.1617/2018 is hereby quashed and
set aside, however, O.P.No.2 is at liberty to approach appropriate forum for
recovery of the amount as alleged in accordance with law.
13. W.P.(Cr.) No. 227 of 2018 is disposed of.
( Sanjay Kumar Dwivedi, J)
SI/,
