Jharkhand High Court
Arbind Kumar Singh @ Arvind Singh vs The State Of Jharkhand And Another .... ... on 15 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. 3695 of 2019
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Arbind Kumar Singh @ Arvind Singh .... Petitioner
-- 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 Petitioner :- Mr. Shailesh Kumar Singh, Advocate
For the State :- Mr. Rajesh Kumar, Advocate
For the O.P.No.2 :- Mr. Lukesh Kumar, Advocate
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07/15.01.2024 Heard Mr. Shailesh Kumar Singh, the learned counsel appearing
for the petitioner, Mr. Rajesh Kumar the learned counsel appearing on
behalf of the respondent State and Mr. Lukesh Kumar, the learned counsel
appearing for the O.P.No.2.
2. This petition is filed for quashing of the entire criminal
proceeding including the order dated 01.02.2019 whereby the discharge
petition of the petitioner has been rejected in connection with C.P.Case
No.98 of 2011. A prayer is also made for quashing of the order dated
03.08.2019 passed in Criminal Revision No.63 of 2019 whereby the
learned court's order has been affirmed by the learned revisional court.
3. The complaint case was filed alleging therein that the petitioner
is a transporter and got contract in Pakur District for transporting coal
from Amla Para Colliery to Pakur railway siding and was using his vehicles
for aforesaid work and some of which he had purchased and some had
financed. The petitioner gave the work of transporting of coal in his
aforesaid contract to the complainant and also gave his 3 vehicles on
22.06.2006 with condition that he would have to pay rest 35 monthly
installments of these vehicles to the finance company and also promised
that after full and final payment of installments, he would get the vehicle
registered in the name of the complainant. The petitioner took total
Rs.1,00,000/- as advance for each vehicle to the petitioner and thereby
took total Rs.3,00,000/- from the complainant and handed over the
vehicles in question to the complainant who started doing his work. The
complainant plied the vehicles for 31 months and petitioner used to pay
him after deducting the installments of vehicles and on the month of
January 2010 the petitioner suddenly asked to deposit rest 4 installments
and when complainant expressed his inability to deposit the same he took
the possessions of the vehicles.
4. Mr. Shailesh Kumar Singh, the learned counsel appearing for
the petitioner submits that the petitioner has preferred the discharge
petition which was rejected by the learned court and the same was also
affirmed by the learned revisional court. He submits that the petitioner is
the owner of the vehicles in question and the O.P.No.2 was authorizedly
operating the said vehicle being employee of the company. He submits
that there is no agreement or any memorandum of understanding for
running of the said vehicles. He submits that the complainant many times
received payment from the petitioner for the work done. He further
submits that the trucks in question are registered in the name of the
petitioner. He submits that when the earning of the vehicles was not being
handed over to the petitioner, the petitioner taken back of the said vehicle
as the petitioner is the owner of the vehicles in question. He submits that
from the very beginning the intention of cheating is not there and in view
of that no case of cheating is made out. He referred to the solemn
affirmation as well as the before-charge evidence brought by way of
supplementary affidavit and referring these two, that is, the solemn
affirmation and the before-charge evidence, he submits that admissions
are there that there is no agreement and there is no payment receipt and
at the time of said arrangement, there is no intention of cheating. He
submits that in view of that, no case of cheating is made out and in spite
of that, the learned court has been pleased to dismiss the discharge
petition which has been affirmed by the learned revisional court. He
further submits that the charge is framed by the learned court, but if the
High Court finds that case is not made out, for the end of justice, the High
Court can interfere.
5. Mr. Lukesh Kumar, the learned counsel appearing on behalf of
the O.P.No.2 submits that the complainant has paid 31 EMIs and only 4
EMIs were not paid, however, the said arrangement was terminated by the
petitioner on the ground that the rest of the entire amount is required to
be paid, he submits that there is no agreement between the parties.
6. Mr. Rajesh Kumar, the learned counsel for the respondent State
submits that the case is arising out of complaint case and pursuant to
that, the learned court has been pleased to take cognizance.
7. It is an admitted position that there is no agreement between
the parties. The ownership of the vehicles in question was not denied by
the O.P.No.2 and the vehicles are still in the name of the petitioner. In the
solemn affirmation the complainant has admitted in paragraph no.9 that at
the time of said arrangement there was no intention of cheating and
further in before-charge evidence, it has been disclosed that the vehicles
in question are in the name of the petitioner and by way of profit earnings
the amount was paid to the petitioner of Rs.47,000/- for each of the
vehicle. The Form -B is another document also admitted in favour of the
petitioner in the before-charge evidence. Thus, it is crystal clear that from
the very beginning the intention of cheating is not there. If the intention
from the very beginning of cheating is not there, in light of section 415 of
the IPC, no case of cheating is made out. Further, every contract cannot
be the subject matter of criminal proceeding as has been held by the
Hon'ble Supreme Court in the case of "Vijay Kumar Ghai v. State
of W.B., (2022) 7 SCC 124. Paragraph no.12 of the said judgment
is quoted below:
"12. The legality of the second FIR was extensively
discussed by this Court in T.T. Antony Vs. State of Kerala & Ors.
(2001) 6 SCC 181. It was held that there can be no second FIR
where the information concerns the same cognisable offence
alleged in the first FIR or the same occurrence or incident which
gives rise to one or more cognizable offences. It was further
held that once an FIR postulated by the provisions of Section
154 of Cr.P.C has been recorded, any information received after
the commencement of investigation cannot form the basis of a
second FIR as doing so would fail to comport with the scheme of
the Cr.P.C. The Court further held that barring situations in
which a counter case is filed, a fresh investigation or a second
FIR on the basis of the same or connected cognizable offence
would constitute an "abuse of the statutory power of
investigation" and may be a fit case for the exercise of power
either under Section 482 of Cr.P.C or Articles 226/227 of the
Constitution of India"
8. It appears that dispute if any is there, that is of civil in nature
and for that, criminal colour has been given and further to allow the
present proceeding to continue will amount to abuse of the process of law.
9. In view of the above facts, reasons and analysis, the order
dated 01.02.2019 whereby the discharge petition of the petitioner has
been rejected in connection with C.P.Case No.98 of 2011 as well as
revisional order dated 03.08.2019 passed in Cr.Rev.No.63 of 2019 are
quashed. The petitioner is discharged from the case.
10. This petition is allowed and disposed of.
11. It is made clear that if any civil proceeding is there, that will be
decided in accordance with law without prejudice of this order as this
order has been passed only to deal with the criminal case.
12. The impugned order is set aside and the petitioner is
discharged from the case.
13. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
