Umesh Modi vs The State Of Jharkhand
2023 Latest Caselaw 1912 Jhar

                                      1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr.M.P. No. 2863 of 2012

1. Umesh Modi
2. Brajeshwar Dayal Garg
3. Bhubanesh Kumar Thakur                         .......   Petitioners
                         Versus

1.The State of Jharkhand
2. Sri Amit Sharma
                                            ......    Opp. Parties
                             With
                           Cr.M.P. No. 2796 of 2012

1. Umesh Modi
2. B.D. Garg
                                                  .......   Petitioners
                            Versus

1.The State of Jharkhand
2. Sri Amit Sharma
                                            ......    Opp. Parties




CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                         ---------

For the Petitioners : Mr. Indrajit Sinha, Advocate Mr. Ajay Kr. Sah, Advocate For the State : Mr. Ravi Prakash, Spl. P.P For the O.P. No. 2. : Mr. Sudhansu Kr. Deo, Advocate

07/Dated: 04/05/2023 Heard Mr. Indrajit Sinha, learned counsel for the petitioners, Mr. Ravi

Prakash, learned counsel for the State and Mr. Sudhansu Kr. Deo, learned counsel

for the O.P. No.2

2. Cr.M.P. No.2863 of 2012 has been filed for quashing the entire

criminal proceeding including order taking cognizance date 05.09.2011 passed in

connection with C/1 Case No. 2495 of 2011, pending in the Court of learned Chief

Judicial Magistrate, Jamshedpur.

3. Cr.M.P. No.2796 of 2012 has been filed for quashing the order dated

27.08.2012 where by petition filed under section 205 of Cr.P.C. has been rejected

in C/1 Case No. 2495 of 2011, pending in the Court of learned Chief Judicial

Magistrate, Jamshedpur

4. The complaint petition has been filed alleging therein that the

complainant is the Proprietor of M/s. Vashisth Roadlines which is subsequently

renamed as M/s. Vashisth Roadways engaged in business of commercial

transportation. It is the case of the complainant that accused no.5 B.K.Thakur and

one Sri S. Sridhar approached the complainant to do work of commercial

transportation of Sponge Iron Lumps. Sponge Iron Fines, Char-coal Fines, Sponge

Iron, Sponge Iron Fines etc. It was assured that complainant would get Rs.

19,500/- as transportation upon receipt of materials and final payment would be

made on the basis of weekly account. The complainant has further alleged that

between 10th July, 2007 to 31st March, 2008, the complainant has carried out

transportation work but out of total bills, Rs. 4,73,317.60 was not paid to the

complainant causing wrongful loss to him. Later on, on verbal assurance, the

complainant continued to work and up to 23.01.2008, the total outstanding

becomes to Rs. 44,21,655.51. The complainant has further alleged that though the

accused persons have deducted Rs. 10,60,195/- towards T.D.S. but nothing was

paid to the complainant. It has been lastly alleged that the total outstanding

against the accused persons comes to Rs. 52,45,000/- which is not yet paid to him

and as such, an offence under Section 406/420/34 I.P.C. is made out against the

accused persons.

5. Mr. Indrajit Sinha, learned counsel for the petitioners submits that the

petitioner no. 1 is Chairman-cum-Managing Director of Bihar Sponge and Iron

Limited and is also Director of about 22 companies situated at different parts of

the country and also outside India. He submits that the petitioner no. 2 is Chief

Executive of Bihar Sponge Iron Limited and the petitioner no. 3 is Chief Finance

Officer of Bihar Sponge Iron Limited. He further draws the attention of the Court

to the complaint petition and submits that the case is arising out of an agreement

of transportation of certain goods. He submits that in the solemn affirmation it

has been admitted by the complainant that upto 2007 payment has been made

and for 2008 part payment has been made and thereafter no payment was made.

He submits that the dispute arose between the parties because one of the truck

article was misappropriated by the driver of the O.P. No.2. He submits that there is

no case of inducement of very beginning and this case is fully covered in the light

of judgment in "Vir Prakash Sharma V. Anil Kumar Agarwal" (2007) 7 SCC

373 wherein para 8 the Hon'ble Supreme Court has held as under;-

"8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus:

"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'."

Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made."

6. On the other hand, Mr. Sudhansu Kr. Deo, learned counsel for the O.P.

No. 2 submits that there is agreement between the parties and payment has not

been made and annexures of the complaint is not annexed with the petition. He

submits that the case is made out that is why the learned court has taken

cognizance. He submits that this court may not interfere at this stage under

section 482 of Cr.P.C.

7. Mr. Ravi Prakash learned counsel for the State submits that looking

into solemn affirmation and enquiry witnesses, the learned court has taken

cognizance.

8. In view of above submissions of the learned counsel for the parties the

court has gone through the contents of complaint and finds that admittedly there

is an agreement between the company and the O.P. No.2 for transportation of

goods of Bihar Sponge Iron Limited. In the complaint petition it has been

admitted by the complainant that upto 2007 payment has been made however

payment was not made after March, 2008. Looking into solemn affirmation it

appears that the complainant has admitted that upto 2007 payment has been

made and for 2008 part payment has been made and thereafter no payment was

made. Thus, it is crystal clear that from the very beginning intention of cheating

was not there and payment was being made. On certain dispute this has

happened and for that criminal case has been filed. If the O.P. No. 2 was

aggrieved with such action, he was required to file proper petition before the

competent court for recovery of the amount which has not been done and the

present complaint petition has been filed. The case of the petitioners is fully

covered in the light of judgment of "Vir Prakash Sharma V. Anil Kumar

Agarwal" (supra).

9. Accordingly, entire criminal proceeding including order taking

cognizance date 05.09.2011 passed in connection with C/1 Case No. 2495 of 2011,

pending in the Court of learned Chief Judicial Magistrate, Jamshedpur, is quashed.

10. Cr.M.P. No.2863 of 2012 stands allowed and disposed of. Pending I.A,

if any, stands disposed of. Interim order is vacated.

11. Since the entire criminal proceeding and cognizance order has been

quashed, Cr.M.P. No. 2796 of 2012 filed for quashing the order dated 27.08.2012

whereby petition filed under section 205 of Cr.P.C. has been rejected, has become

infructuous. Accordingly, Cr.M.P. No. 2796 of 2012 is dismissed as infructuous.

(Sanjay Kumar Dwivedi, J.)

Satyarthi/