Jharkhand High Court
V.L. Narayan (Vishwanathan Laxmi ... vs The State Of Jharkhand on 1 December, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 896 of 2013
1. V.L. Narayan (Vishwanathan Laxmi Narayan) @ V.L. Narain
2. Anand Shrivastava ...... Petitioners
Versus
1.The State of Jharkhand
2. Dinesh Prasad Singh ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Pandey Neerai Rai, Advocate
Mr. Suraj Verma, Advocate
For the State : Mr. Jitendra Pandey, A.P.P.
For the O.P. No.2 : Mr. Ravi, Advocate
7/Dated: 01/12/2023
Heard Mr. Pandey Neeraj Rai, assisted by Mr. Suraj Verma, learned
counsel for the petitioner, Mr. Jitendra Pandey, learned counsel for the State
and Mr. Ravi, learned counsel for the O.P. No.2.
2. This petition has been filed for quashing the entire criminal
proceeding including order taking cognizance dated 15.09.2012 in connection
with Garhwa P.S. Case No. 191 of 2008, corresponding to G.R. No. 857 of 2008,
pending in the Court of learned Judicial Magistrate, Garhwa.
3. The F.I.R. has been lodged alleging therein that the informant
happens to be the chairman of one Vananchal Dental College and Hospital,
Garhwa and he has lodged the present first information report alleging therein
that accused persons agreed for supply of 30 numbers Phantom Head, one
OPG model Rotograph Plus Panoramic Dental X-Ray machine and 2 nos, wax
Curing Units Model Electro waxer, at the total cost of Rs. 15,16,050.00 and
have also agreed, to install the same within next six to eight weeks from the
date of final order.
It is further alleged that the accused persons took payment of Rs.
11,14,286.00 through Bank Draft on false assurances and never supplied the
instruments and only incomplete OPG Rotograph plus has been supplied and
the accused persons tried to get rest of amount by illegal means by sending
wrong and incomplete instruments of any other company and till date inspite of
repeated requests, the accused persons took payment of the alleged amount in
lieu of wrong and incomplete supply of instrument and thus have cheated the
informant as well as the students of the college.
4. Mr. Pandey Neeraj Rai, learned counsel for the petitioners submits
that the petitioner no. 1 was holding the post of Managing Director, VILLA
INDIA and the said company is an established company, distributing and
servicing the dental/medical equipment and petitioner no.2 is the Marketing
Manager of the said company. He submits that maliciously the case has been
lodged for a civil dispute. He further submits that in view of letter dated
24.01.2008 the supply of 30 numbers Phantom Head, one OPG model
Rotograph Plus Panoramic Dental X-ray machine and 2 nos., Wax Curing Units
Model electro waxer, at the total cost of Rs. 21,61,051/- and not at the total
cost of Rs. 15,16,050/- as alleged in the F.I.R. He submits that the entire case
is false as there is admission of payment of Rs. 11,14,286.00/- and O.P. No.2
has stopped payment of Rs. 10,35,715.00. He submits that the purchase order
is dated 24.01.2008, the supply was made and the remaining amount was not
paid and on 19.05.2008 and 04.06.2008 respectively the demand was made.
He submits that the legal notice to that effect was issued on 15.07.2008 and
thereafter the present case has been filed on 21.07.2008. He submits for the
said grievance the O.P. No.2 has filed title suit being Title Suit No. 64/2008. He
submits that the case is arising out of contract and there is no case of cheating
from the very inception. He submits that the case of the petitioner is covered in
the light of judgment in " Sharon Michael and Others Vs. State of Tamil
Nadu and Another" (2009) 3 SCC 375 wherein para 12, 16 and 18 it has
been held as under:-
" 12. Indisputably Respondent 2 is the producer of the
garments. The buyer is a German company. Rightly or wrongly, the buyer
refused to accept the goods, inter alia, on the premise that the same
were defective and sub-standard. We will assume that the appellant
Company was assured payment for such supplies. Even if that be so, it
would be a del credere agent. Its liability is, therefore, a civil liability. The
allegations contained in the first information report did not reveal that
any misrepresentation was made at the time of formation of the
contract. The goods were to be supplied by Respondent 2. They were
presumably required to meet the requirements of the buyer. Even if the
certificate granted by the appellant Company was incorrect, an
appropriate action against them could have been taken for breach of
contract.
16. The first information report contains details of the terms of contract
entered into by and between the parties as also the mode and manner
in which they were implemented. Allegations have been made against
the appellants in relation to execution of the contract. No case of
criminal misconduct on their part has been made out before the
formation of the contract. There is nothing to show that the appellants
herein who hold different positions in the appellant Company made any
representation in their personal capacities and, thus, they cannot be
made vicariously liable only because they are employees of the
Company.
18. The liability of the Company is, therefore, a civil liability. It is also not
a case where although a prima facie case had been made out disclosing
commission of an offence, the court is called upon to consider the
defence of the accused. The first information report itself refers to the
documents. They can, therefore, be taken into consideration for the
purpose of ascertaining as to whether the allegations made in the
complaint petition read as a whole, even if taken to be correct in its
entirety, discloses commission of any cognizable offence or not. As
admittedly Respondent 2 was the supplier of garments which were
found out to be defective in nature, we are of the opinion that the
dispute between the parties is civil in nature."
5. He submits that if any case is made out that is civil in nature for that
Title Suit No. 64/2008 has already been filed.
6. The said prayer is resisted by Mr. Ravi, learned counsel for the O.P.
No.2 on the ground that supply was not made however lateron certain supply
was made. He submits that Title Suit No. 64/2008 has been decreed in faovour
of the O.P. No.2. He submits that the intention of cheating of the petitioner was
there from the very inception and in that view of the matter the petitioner may
agitate all the grounds before the learned court.
7. Mr. Jitendra Pandey, learned counsel for the State submits that the
learned court has rightly taken cognizance.
8. The Court has perused the documents brought on record and
contents of F.I.R.. It is an admitted fact that certain articles have been supplied
by the petitioners and he has been paid a sum of Rs. 11,14,286.00 and a sum
of Rs. 10,35,715.00 was to be paid by the O.P. No.2. Annexure-2 is the
purchase order dated 24.01.2008. The demand dated 19.05.2008 and
04.06.2008 made by the petitioners are on record. The legal notice was issued
on 15.07.2008 and thereafter the present F.I.R. has been lodged on 21.07.2008
and the Title Suit No. 64/2008 has been filed on 24.07.2008. The plaint of the
said title suit is annexed with the Cr.M.P. in which para 13 it has been stated
that the defendant managed to supply Phantom head from Lucknow to Dental
College, Farathiya. Therefore, it cannot be said that the said company has not
supplied the articles. 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 at the very inception there was any intention on behalf of the petitioners
to cheat which is a condition precedent for an offence under Section 420 of
I.P.C. What has been discussed here-in-above clearly suggest that criminality is
not made out and in view of that criminal proceeding should not encouraged
when it is found to be malafide otherwise the an abuse of process of the court.
For the same grievance Title Suit No. 64/2008 has been filed by the O.P. No.2
which was decreed in faovur of O.P. No.2. No case of criminality is made out.
9. In view of above facts, reasons and analysis the entire criminal
proceeding including order taking cognizance dated 15.09.2012 in connection
with Garhwa P.S. Case No. 191 of 2008, corresponding to G.R. No. 857 of 2008,
pending in the Court of learned Judicial Magistrate, Garhwa, are quashed.
10. This petition stands allowed and disposed of. Pending I.A, if any,
stands disposed of. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
