Jharkhand High Court
Pramod Kumar Singh vs The State Of Jharkhand on 1 December, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 2256 of 2015
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2256 of 2015
1. Pramod Kumar Singh
2. Pravin Kumar Kalra
3. Harjinder Pal Singh @ Lal Singh ... Petitioners
-Versus-
1. The State of Jharkhand
2. Kamal Sharma Bhola ... Opposite Parties
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioners : Mr. Jitendra Shankar Singh, Advocate
Mr. Mukesh Kumar Sinha, Advocate
Mr. Debarsi Mondal, Advocate
For the State : None
For O.P. No.2 : Mr. Sanjay Kumar Pandey, Advocate
-----
03/01.12.2023 Heard learned counsel for the petitioners and learned counsel for
opposite party no.2. Nobody has appeared on behalf of the State.
2. This petition has been filed for quashing of the entire criminal
proceeding including the order taking cognizance dated 06.08.2015 arising
out of Complaint Case No.616/2014, pending in the Court of the learned
S.D.J.M., Koderma.
3. The complaint case was filed alleging therein the complainant is a
small contractor and runs a firm in the name of Ma-Shakti Enterprises with a
partner namely Vikas Burnwal. On 24.10.2013, the accused persons visited
the complainant at Jhumri Tilaiya and talks about carrying out of
outsourcing work through him at CCL, Bokaro. It was further alleged that
the accused Pramod Kumar Singh runs a firm in the name of M/s Dhillon
Transport Company and takes the contract works with the help of small
contractors, executes the work, this is what they told to the complainant
and his partner. It was also alleged that an agreement was executed on
25.10.2013 between the complainant, his partner and the accused persons,
wherein, it was stated that they have secured a contract work of
outsourcing of OBR of 9.78 Lac cum re-handling of OB 2.85 Lac tone in two
years and for which the complainant shall work as sub-contractor and shall
deploy heavy and light equipment as per requirement from their end. In the
agreement it was stipulated that as per agreement between the accused
persons and CCL, the complainant shall deploy all manpower and machines
and the accused shall be entitled for 10% commission from the bills of CCL.
It was alleged that with the intention to cheat, the accused had said that
Rs.54.77 paise shall be charged for diesel, whereas, the rate of Rs.53.73
paise was finalized between CCL and the accused. As per the agreement,
the complainant on 11.12.2013 had commenced the work and at the time
of commencement of work had asked the accused about the work order
given by CCL, but was told that the same has not been issued and the
agreement executed between them shall be submitted before the CCL, but
in conspiracy the same was not submitted to CCL at the time of allotment of
work order. The complainant came to know about this fact later on and
when he asked the accused on 19.03.2014, then they threatened not to
work and took away all papers. It was also alleged that the complainant has
invested around Rs.42 Lacs, whereas, as advance the accused had paid
Rs.8,50,000/- only and also not paid for machines and men deployed and a
dozer is still under their custody and thus the accused have cheated,
defrauded and committed criminal breach of trust. On 25.06.2014, all the
three accused persons came to Jhumri Telaiya and said that if he asked for
money for the work done and for returning the dozer then he has to face
dire consequences. The complainant and his partner on 17.06.2014 sent a
legal notice for payment of Rs.33,50,000/- and for returning the dozer, but
the accused have refused to give and return the same.
4. Mr. Jitendra Shankar Singh, learned counsel appearing for the
petitioners submits that petitioner no.1 is one of the Director of M/s Aditya
Dhanraj Enterprises Pvt. Ltd., a private Ltd. Company, petitioner no.2 is a
businessman and petitioner no.3 is one of the partner in M/s Dhillon
Transport and Company, a registered partnership firm. He submits that for
the purpose of participating in NIT offered by CCL, M/s Aditya Dhanraj
Enterprises Pvt. Ltd., M/s Manikraj Pvt. Ltd. And M/s Dhillon Transport and
Company had formed a joint venture in the name of M/s Dhillon Transport
and Company. He further submits that the CCL had invited bid documents
for the contract under the work outsourcing of OBR of 9.78 Lac cum Re-
handling of OB 2.95 Lac cum and extraction of Coal 1.720 LTC in two years.
He submits that after award of contract, an agreement on 25.10.2013 was
executed between M/s Dhillon Transport and Company and M/s Shakti
Enterprises whereunder the work was subject to M/s Shakti Enterprises for
performance and execution of work with other terms and conditions therein.
He submits that in view of that, opposite party no.2 is sub-contractor of M/s
Dhillon Transport and Company. He submits that opposite party no.2 has
not completed the work and in view of that, the said agreement was
cancelled by way of Annexure-3, which is dated 29.04.2014. He further
submits that in view of Clause-2 of cancellation of agreement, it was agreed
to cancel the aforesaid agreement on terms and conditions and as per
clause-3, there is clearance of financial statement by both the parties and, if
any dues remain then second party shall pay to the first party and as per
clause-6, the second party will be liable for any criminal and civil liabilities
with respect to the aforesaid work. He submits that one of the partner of
M/s Shakti Enterprises has stated on stamp, contained in Annexure-6 that
nothing due is there. He submits that even in the complaint petition itself, it
is admitted that sum of Rs.8,50,000/- was paid and the case is made that
Rs.33 Lacks and odd has not been paid by M/s Dhillon Transport and
Company.
5. Mr. Sanjay Kumar Pandey, learned counsel for opposite party no.2
submits that the cancellation agreement was not signed by both the
partners. He submits that of the case is arising out of an agreement that
does not mean that criminality is not made out. He submits that the entire
amount is not paid and rightly the case has been filed.
6. In the complaint petition itself, it is admitted that the agreement was
there between the parties. It is admitted that sum of Rs.8,50,000/- was
paid and the allegations are made that rest of the amount out of Rs.42 Lacs
has not been paid. Thus from the averment made in the complaint petition
itself, essential ingredient of cheating from very inception is absent.
7. Further, the agreement contained in Annexure-2 suggests that the
terms and conditions was between M/s Dhillon Transport and Co. and M/s
Shakti Enterprises. The complainant is one of the partner of M/s Shakti
Enterprises. The said agreement has already been cancelled and in view of
Clauses-2 and 3, the obligations are made upon opposite party no.2.
Annexure-6 is the document on stamp paper issued by one of the partner of
M/s Shakti Enterprises saying therein that nothing dues remain with M/s
Dhillon Transport and Company.
8. It appears that for breach of contract, if any, the present complaint
case has been filed. If such a situation is there, the case of the petitioners is
covered in view of the judgment passed by the Hon'ble Supreme Court in
the case of Sarabjit Kaur v. State of Punjab and another , reported in
[(2023) 5 SCC 360], wherein, it has been held that breach of contract
does not give rise to criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of transaction. Merely on
the allegation of failure to keep up promise, it will not been enough to
initiate criminal proceedings.
9. The facts which have been discussed hereinabove clearly suggest that
entire idea seems to convert a civil dispute into criminal and put pressure on
the petitioners for return of the alleged amount.
10. In view of the above facts, reasons and analysis, the entire criminal
proceeding including the order taking cognizance dated 06.08.2015 arising
out of Complaint Case No.616/2014, pending in the Court of the learned
S.D.J.M., Koderma are quashed.
11. It is made clear that if any civil proceeding is pending, that will be
decided in accordance with law without prejudiced to this order.
12. Accordingly, this petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
