Jharkhand High Court
Alak Sundar Basu vs The State Of Jharkhand And Another .... ... on 12 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2576 of 2018
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1.Alak Sundar Basu
2.Arjun Dey @ Arjun Das .... Petitioners
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Rohitashya Roy, Advocate
For the State :- Mr. Fahad Allam, Advocate
For the O.P.No.2 :- Mr. Rishav Kumar, Advocate
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6/12.01.2024 Heard Mr. Rohitashya Roy, the learned counsel appearing for
the petitioners, Mr. Fahad Allam, the learned counsel for the respondent
State and Mr. Rishav Kumar, the learned counsel appearing on behalf of
the O.P.no.2.
2. This petition has been filed for quashing of the order taking
cognizance dated 23.9.2017 arising out of Adityapur P.S. Case No.141 of
2014, corresponding to G.R. No.428 of 2014,pending in the court of
learned Chief Judicial Magistrate, Seraikella.
3. The complaint case is filed alleging therein that the
complainant is the partnership firm having constructions site popularly
known as Mangalam City in front of Sudha Dairy Dhirajganj, Adityapur.
The complainant placed a purchase order dated 18.06.2013 for supply and
installation of elevator equipment for three numbers of Adams make
passenger elevator at the work site and all the accused persons are
responsible for business and supply of three numbers of elevators
equipment on behalf of the company to which the purchase order was
issued. On 27.07.2013 the complainant entered into a contract with the
accused company which was signed by accused nos.2 and 3 for supply
and installation of elevator equipment to the complainant's various
construction site. In terms of the aforesaid contract, payment of
Rs.16,19,250/- by several cheques against the above purchase order for
supply and delivery of elevator were made. There were nine cheques
which have been issued by the complainant in favor of the accused
persons for the aforesaid amount. According to terms the accused persons
were bound to deliver three elevator equipment and install the same
within ten weeks from the date of receipt of the order but despite all
efforts by complainant the accused persons failed to supply the material
and installation of the lifts and also accused persons not refunded the
advance paid to them by the complainant.
4. The learned counsel for the petitioners submits that the
complaint case is filed praying therein that the matter may be send to
police under section 156(3) Cr.P.C. He further submits that this complaint
was not on affidavit and in spite of that the learned court without applying
its judicial mind by way of endorsing upon the same transferred the
matter to police under section 156(3) Cr.P.C which is not in accordance
with law and to buttress his argument, he relied in the case of "Priyanka
Shrivastava and Another v. State of Uttar Pradesh and Others",
reported in (2015) 6 SCC 287. He further submits that the entire case is
made out on the basis of commercial transaction. He submits that
agreement has been entered between the parties for erecting four
elevators, and out of four, two elevators have already been installed and
so far as other two elevators are concerned, the materials were also
supplied. However, Rs.1,95,000/- was not paid by O.P.No.2 and in view of
that, installation was not made. He further submits that by way of two
letters, contained at Annexures- 11, 12 and 12/1, the O.P.No.2 was called
upon to pay the said amount, however, the O.P.No.2 has kept mum and
O.P.no.2 thereafter has filed the case. He submits that case is arising out
of contract and every contract cannot be the subject matter of criminality
and to buttress his such argument he relied in the case of Vijay Kumar
Ghai v. State of W.B., (2022) 7 SCC 124 and relied in the
paragraph no.12 of the said judgment. Relying on the said judgment he
submits that if such a situation is there, this Court may not interfere and
to allow the proceeding will amount to abuse of process of law. He
submits that the petitioner no.1 is the C.E.O of the said company and the
petitioner no.2 was Director of the said company.
5. The said argument is resisted by Mr. Rishav Kumar, the
learned counsel appearing on behalf of the O.P.No.2 and he submits that
the petitioners have not approached this Court with clean hands and the
material facts have been suppressed and he submits that the elevators
were not erected and in view of that the case is made out. He submits
that there is no order annexed by the petitioners on the point of section
156(3) Cr.P.C passed by the learned court.
6. Mr. Allam, the learned State counsel submits that the learned
court has rightly taken cognizance pursuant to the complaint case.
7. The Court has gone through the materials on record and
finds that admittedly the complaint case was filed by the petitioners
arraying the accused persons who are the officers of the said company.
The separate prayer was made to send the matter under section 156(3) of
the Cr.P.C. and in spite of any averment when the complainant has
approached, the police has not registered the FIR and the learned court
by way of endorsement only sent the matter under section 156(3) Cr.P.C
for registration of the FIR. This is not a separate order and it is merely
endorsement on the said petition by way of referring the same. The
Hon'ble Supreme Court in the case of "Priyanka Shrivastava"(supra)
has held that there should be application of judicial mind while passing an
order under section 156(3) Cr.P.C. In that case, the Hon'ble Supreme
Court has dealt with several judgments and law has been laid down in
paragraph nos.27,29,30 and 31. In paragraph no.27 of the said judgment,
the Hon'ble Supreme Court has held that the learned magistrate has to
remain vigilant with regard to allegations made and the nature of
allegations and not to issue directions without proper application of mind.
It has further been held that the said application which was been filed
under section 156(3) Cr.P.C. should be supported by an affidavit and the
purpose of filing such affidavit is to prevent abuse of process, which has
become common in these days. The manner of affidavit has also been
prescribed in section 297 Cr.P.C. There was no prior invocation of section
154(3) of the Cr.P.C., while filing the petition before the Court under
section 156(3) Cr.P.C. In the complaint case itself, it has been prayed to
sent the complaint to the police for registration of the FIR. Thus, this
order and action of the learned court sending the complaint to the police
for registration and investigation under section 156(3) Cr.P.C is not in
consonance with law. Further, in that complaint, the complain is made that
two elevators are not erected by the petitioners, however, two elevators
have already been erected and the materials for other two elevators have
been sent. The document suggest that demand was made to pay
Rs.1,95,000/- and the O.P.No.2 kept mum. Thus, it appears that only to
settle a civil dispute, the O.P.No.2 has filed the complaint case and chosen
to short cut so that the matter may be settled by way of criminal case. It
is further well settled that every contract cannot be subject matter of
criminality as held in the case of 'Vijay Kumar Ghai"(supra).
8. In view of above finding, the Court is not accepting the
argument of the learned counsel for the O.P.No.2 as from the very
beginning the ingredient of cheating is not there in the modus operandi of
execution of the said contract. The dispute has arisen and demand has
been made to the tune of Rs.1,95,000/- and thereafter the present case
has been lodged.
9. In view of the above reasons and analysis, the entire criminal
proceeding as well as order taking cognizance dated 23.9.2017 arising out
of Adityapur P.S. Case No.141 of 2014, corresponding to G.R. No.428 of
2014,pending in the court of learned Chief Judicial Magistrate, Seraikella
are quashed. This petition is allowed and disposed of.
10. It is made clear that if any civil proceeding is there that will
be decided in accordance with law without being prejudiced by this order
as this order is passed only to deal with the present case.
11. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/, A.F.R.
