Jharkhand High Court
Prakash Chandra Mohanti @ Prakash ... vs The State Of Jharkhand on 17 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.917 of 2022
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Prakash Chandra Mohanti @ Prakash Chandra Mohanty
.... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Gaurav Kumar Singh .... .... .... Opp. Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. L.C.N. Shahdeo, Advocate
For the State : Mr. Abhay Kumar Tiwari, A.P.P.
For the O.P. No.2 : Mr. Ajay Kumar, Advocate
Mr. Ashish Kumar, Advocate
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C.A.V. ON : 27.02.2023 PRONOUNCED ON 17 . 03.2023
Instant petition has been filed for quashing the entire criminal
proceeding along with order taking cognizance dated 27.03.2021 whereby
cognizance has been taken for the offence under Sections 406, 420, 506, 504
of the Indian Penal Code in connection with Jamtara P.S. Case No.173 of 2019
corresponding to G.R. No.201 of 2021.
2. The prosecution case, in brief, is that informant was the Director of
R.S.S.G. Consortium Pvt. Ltd. which had entered into an agreement with
Bajrangbali Transport Agency and jointly awarded contract on 23.12.2015 for
loading of coal from Mahanadi Coal Fields Ltd to the tipper. The work place
was situated under District Sundergarh, Orissa and in order to facilitate the
execution of work, the informant entered with Prakash Chandra Mohanty
(petitioner) in memorandum of understanding to monitor and supervise the
work. He was also authorized to operate BBTA/RCPL(JV) current account in
SBI Jamtara by agreement dated 16.03.2016. Thereafter he started supervising
the work of informant.
3. It is alleged that the petitioner/accused on different dates, withdrew
Rs.10,85,592/- during the period 22.03.2018 to 11.09.2018. As a result, the
work was adversely affected. Later, Rs.2,30,000/- was paid to him but neither
the work was completed nor amount was refunded. It is also alleged that the
work was left midway half finished.
4. It is submitted by the learned counsel on behalf of petitioner that even
assuming the allegations as made in the FIR is accepted to be true, the offence
of cheating or criminal breach of trust will not be made out. Once it is
admitted that work had been partly completed, it cannot be said that there was
an intention of deception from the inception. It is further argued that the
present case has been filed to wreak vengeance and is counter to Sundargarh
P.S. Case No.61 of 2019 registered on the basis of Complaint Case No.07 of
2019 filed by the petitioner. According to the case of the petitioner, it was the
informant (O.P. No.2) who had withdrawn Rs.24,00,000/- without the consent
and signature of this petitioner. After the petitioner instituted police case, the
present case has been filed after a long delay in counter to the case filed by the
petitioner. The payment that has been received by the petitioner, has been
utilised for payment to its employee's salary and the employer's share in the
provident fund account. The petitioner has already filed Civil Suit No.
270/2017 before the Civil Judge (Sr. Div.), Sundargarh against the informant.
5. Dispute is commercial in nature between private individuals for
which the arbitral proceeding is pending before the sole Arbitrator-Mainak
Bose.
6. It is further argued that the Annexure-7 which is letter issued by
Mahanadi Coal Limited to this petitioner, obtained under RTI Act, knocks
down the foundation of the prosecution case that the work was not completed
by the petitioner. As per this letter of Project Officer, MCL, the work was
commenced on 01.01.2016 and has been completed on 03.07.2019 as per the
letter. The informant (O.P. No.2) had moved the High Court of Orissa in
W.P.(C) No.21989 of 2020 which had been filed against the order of MCL
dated 14.07.2020 by which payment of the petitioner was blocked. On the
basis of instruction received from the I.O. in Town Police Case No.61 of
2019, the payment was later released in favour of the petitioner /present
informant of that case. No further direction was issued since the amount was
already paid to the informant. Lastly, it is submitted that as per Clause 4 of the
agreement which was signed by both sides that any dispute between the
parties was to be resolved by arbitration. It is submitted that the dispute is
commercial in nature with an arbitration Clause and the matter is pending
before the sole Arbitrator. The continuation of the present criminal proceeding
is an abuse of process of Court in view of ratio decided in the case of Mitesh
Kumar J. Sha Versus State of Karnataka & Others; 2021 SCC OnLine SC
976 . It is submitted that in this case also the matter was pending before the
Arbitrator and the Hon'ble Supreme Court was pleased to quash the criminal
proceeding in view of civil nature of matter.
7. It is argued on behalf of the opposite party that the defence of the
accused cannot be considered at the cognizance stage. After investigation,
charge-sheet has been submitted against the petitioner on finding sufficient
materials on record.
8. Dispute in brief is between principal and agent. Informant is the
principal who had entrusted certain work to be monitored and executed by the
agent (petitioner), who allegedly despite receiving payment of more than
Rs.12 lakhs failed to complete the work. Matter for consideration is whether
these allegations are sufficient to make out a prima facie case against the
accused.
9. This case is yet another example of a purely civil dispute being
converted into a criminal case. It is trite law that at the stage of taking
cognizance, the adjudication is confined to the nature of allegation and the
materials on which the prosecution is proposed. The defence of the accused is
not normally to be considered. However, while considering a quashing petition
under section 482 of the Cr.P.C., if certain documents of sterling quality are
brought on record, the Courts cannot turn blind eye to it. Law on this point has
been reiterated in B. Jagdish v. State of A.P., (2009) 1 SCC 681
27. We may, however, refer to a decision of this Court in State of
Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 : 2005 SCC (Cri)
415. Ed.: See also the recent judgment in Rukmini Narvekar v. Vijaya
Satardekar, (2008) 14 SCC 1.] wherein this Court upon considering a
large number of decisions opined: (SCC p. 578, para 21)
"21. It is evident from the above that this Court was considering the
rare and exceptional cases where the High Court may consider
unimpeachable evidence while exercising jurisdiction for quashing
under Section 482 of the Code. In the present case, however, the
question involved is not about the exercise of jurisdiction under Section
482 of the Code where along with the petition the accused may file
unimpeachable evidence of sterling quality and on that basis seek
quashing, but is about the right claimed by the accused to produce
material at the stage of framing of charge."
10. Here in the present case, document has been produced on behalf of
the petitioner to show that work had been completed, but even if it is assumed
as per the assertion made in FIR that work had been completed only in part, it
will be an admission on the part of the informant that there was no intention to
deceive from the very inception. It will be a case of breach of contract giving
rise to civil and not criminal liability.
11. Present case is clearly a sequel to the civil and criminal cases filed by
the petitioner in order to wreak vengeance against the petitioner. It has been
held in Vijay Kumar Ghai & Ors. v. State of W.B. & Ors. {(2022) 7 SCC
124}:
25. This Court has time and again cautioned about converting purely
civil disputes into criminal cases. This Court in Indian Oil
Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 :
(2006) 3 SCC (Cri) 188] noticed the prevalent impression that civil law
remedies are time consuming and do not adequately protect the
interests of lenders/creditors. The Court further observed that : (Indian
Oil Corpn. case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC
736 : (2006) 3 SCC (Cri) 188] , SCC p. 749, para 13)
"13. ... Any effort to settle civil disputes and claims, which do not
involve any criminal offence, by applying pressure through criminal
prosecution should be deprecated and discouraged."
In Surendra Nath Pandey & Anr. v. State of Bihar & Anr. {(2020)
18 SCC 730} it has been held that criminal prosecution cannot be allowed to
proceed on the basis of bald and omnibus allegations in the FIR, as the same
will constitute an abuse of the process of the Court and such prosecution may
in all likelihood be abortive and futile.
Under the above stated facts and circumstances of the case, it will be
an abuse of process of Court to permit the continuation of the criminal
prosecution in the instant case. The entire criminal proceeding along with
order taking cognizance dated 27.03.2021 in connection with Jamtara P.S.
Case No.173 of 2019 corresponding to G.R. No.201 of 2021, is quashed.
Criminal miscellaneous petition is allowed.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 17th March, 2023
AFR / Anit
