Jharkhand High Court
Manoj Kumar vs The State Of Jharkhand & Anr. ...... Opp. ... on 7 December, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2167 of 2015
Manoj Kumar ...... Petitioner
Versus
The State of Jharkhand & Anr. ...... Opp. Parties
........
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Sameer Saurabh, Advocate
For the State :Mrs. Ruby Pandey, A.P.P.
For the O.P. No.2 : Mr. Sanjeev Thakur, Advocate
..............
05/Dated: 07/12/2023
Heard Mr. Sameer Saurabh, learned counsel for the
petitioner, Mrs. Ruby Pandey, learned counsel for the State and Mr. Sanjeev
Thakur, 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 20.06.2015 in
connection with C-1 C.P. Case No. 523 of 2015, pending in the Court of
learned Chief Judicial Magistrate, Bokaro.
3. The Complaint Case was filed alleging therein that the
complainant is doing the work of catering in the name of Shanti Caterer. It
has further been alleged that on 4.4.2015, the petitioner came his shop and
requested for catering for the purpose of reception of his brother on
30.4.2015. As per the Menu both the parties agreed of Rs. 275/- per plate
for 600 persons and as advance Rs.1000/- was paid to the complainant on
4.4.2015 and cheque of Rs.90,000/- has been given to him on 24.4.2015
and for rest of money, it has been told that same will be paid after the
reception. It has further alleged that on 30.4.2015, 600 persons have taken
meal but the guest of the accused increased then the complainant managed
food for extra 250 persons and to that effect the information was given to
the accused on the very same date i.e. 30.4.2015. It has been alleged by
the complainant that after closure of the party, the complainant made
demand of Rs. 1,42,750/- from the petitioner but the petitioner told that he
will not make payment and he will make demand then he will be assaulted.
It has been further alleged that the complainant several times tried to make
demand of due amount but the petitioner by committing breach of trust and
misappropriated Rs.1,42,750/-. It has further been alleged that on
12.5.2015, the complainant submitted written information to the police but
no action was taken. Hence, this case.
4. Learned counsel for the petitioner submits that the
petitioner sent legal notice to the complainant on 09.05.2015 stating that
the complainant after taking the work of catering of 600 persons have not
provided proper food and 250 guests of the petitioner without taking their
dinner returned as the foods were not available which caused great
humiliation to the petitioner as against the contract and the petitioner has
already paid Rs. 1,56,000/- to the complainant in advance. He submits that
in the said legal notice Rs. 5 lakh was also demanded as compensation. He
submits that the legal notice is dated 09.05.2015 and the present complaint
case has been filed on 22.05.2015. He submits that for recovery of the
amount of Rs. 1,42,000/- money suit bearing Money Suit No. 24/2015 has
been instituted by the O.P. No.2 and also for recovery of the amount
present case has been filed. He submits that no case of cheating is there
from the very beginning so far this petitioner is concerned. He submits that
the case of the petitioner is covered in the light of judgment in the case of
"Vesa Holdings Private Limited and Another Vs. State of Kerala and
Others" reported in (2015) 8 SCC 293.
5. The said argument has been resisted by Mr. Sanjeev Thakur,
learned counsel for the O.P. No.2 on the ground that looking into solemn
affirmation and enquiry witnesses criminality is made out. He submits that if
criminality is made out both criminal and civil proceeding are maintainable.
He submits that the legal notice was replied by the complainant wherein
allegation of consuming more than 250 plates are there that is why money
has to be paid to the complainant.
6. Learned counsel for the State submits that it appears that
the learned court has taken cognizance on the basis of complaint petition,
solemn affirmation and enquiry witnesses.
7. The Court has perused the complaint petition and finds
that allegations are made of not paying a sum of Rs. 1,42,750/- for the
catering services. It is further an admitted fact that legal notice dated
09.05.2015 was sent by the petitioner vide Annexure-2 series thereafter the
present complaint case has been filed on 22.05.2015 which suggests that as
a counter blast the present case has been filed. Further Money Suit No.
24/2015 has been instituted by the complainant for recovery of such
amount.
8. In view of aforesaid facts it is crystal clear that for a civil
wrong, criminal case has been filed. Further in absence of any culpable
intention at the time of making initial promise is absent in the complaint
petition, no case of cheating is made out. The case of the petitioner is
covered in the light of Vesa Holdings Private Limited(supra) .
9. If the criminality is made out both criminal as well as civil
proceeding can go simultaneously but if the case is civil in nature to
continue the proceeding will amount abuse of process of law.
10. In view of above facts, reasons and analysis, the entire criminal
proceeding including order taking cognizance dated 20.06.2015 in
connection with C-1 C.P. Case No. 523 of 2015, pending in the Court of
learned Chief Judicial Magistrate, Bokaro are quashed.
11. This petition is allowed and disposed of. Pending I.A, if any,
stands disposed of. Interim order is vacated.
12. It is made clear that so far money suit is concerned, the same
will be decided in accordance with law without being prejudice by this order.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
