Tripura High Court
M/S Orion Security Solution Pvt. ... vs The State Of Tripura & Another on 25 July, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 11
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
Crl Petn. No.51 of 2022
M/S Orion Security Solution Pvt. Limited
.....Petitioner
_V_E_R_S_U_S_
The State of Tripura & Another
.....Respondents
For Petitioner(s) : Mr. P. K. Biswas, Sr. Advocate.
Mr. P. Majumder, Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Mr. S. Lodh, Advocate.
Mr. S. Majumder, Advocate.
Whether fit for reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
_J_U_D_G_M_E_N_T_
25.07.2024
Heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. P.
Majumder, learned counsel appearing for the petitioner also heard Mr. S. Ghosh,
learned Addl. P.P. Mr. S. Lodh, learned counsel assisted by Mr. S. Majumder,
learned counsel appearing for the respondents.
[2] The present petition has been filed under Section-482 of the Code of
Criminal Procedure, 1973 for quashing the FIR dated 25.08.2021 registered vide
Amtali P.S. Case No.2021 AMT 113 under Sections-120(B)/420 of the Indian
Penal Code and the proceeding carried out by the investigating officer.
[3] The facts in brief are that the petitioner company had preferred the
present petition under Section-482 of Cr. P.C. for quashing the FIR dated
25.08.2021 registered vide Amtali P.S. Case No.2021 AMT 113 under Sections-
120(B)/420 of the IPC and the proceeding carried out by the investigating officer
since no commission of offence has been established against the petitioners. The
petitioner company after being a successful bidder had been awarded with the
contract of supplying of manpower under the respondent No.2 and in continuation
of the contract; the same had been terminated on the issue of collection of money
from the recruitees during the recruitment process and also on the issue of non-
payment of wages.
[4] The respondent No.2 in violation of clause-3.9 of the Contract had
terminated the contract on giving undue indulgence to SOFED which is not
registered under partnership Act or Companies Act. The respondent No.2 also did
not refund the bank guarantee amount to the petitioner No.2 and when so
requested, the respondent No.2 had filed a false, concocted FIR basis on false and
fabricated allegations which has got no basis at all. The entire case falls within the
ambit of civil procedure since the same relates to documentary evidence.
[5] Being aggrieved, the present petition is filed before this Court by the
petitioner-company for quashing the FIR and the proceeding thereunder.
[6] Mr. P. K. Biswas, learned senior counsel assisted by Mr. P.
Majumder, learned counsel appearing for the petitioner has submitted that the
impugned FIR fails to make any specific allegation against the petitioner-company
in relation to the offences alleged therein and in absence of any allegation of
criminal conspiracy under Section-120(B) of IPC or in absence of any allegation
of dishonestly inducing anyone under Section-420 of IPC.
[7] The impugned FIR fails to allege any intention to cheat or commit
criminal conspiracy against anyone with regard to the petitioner-company. Since
the petitioner-company has never collected money from any sources and since
there is no specific allegation from any recruitees regarding collection of money in
the name of recruitment, there cannot arise any defaults committed by the
petitioner-company. Since the un-controverted allegations contained in the
impugned FIR fails to demonstrate the allegation of collection of money from the
recruitees in the recruitment process or non-payment of wages. He stated that there
was no delay in making any wages paid and even during COVID in the absence of
any attendance, full payments were made.
[8] It has been further contended that due to the delay on the part of
JICA project, the salary was disbursed lately for which the petitioner-company
cannot be held liable. The petitioner-company had timely paid the salary to the
employees and there is no due of any wages. Petitioner-company provided
professional training and also insured the employees and drawn attention of this
Court to insurance premium paid and policy documents and therefore some
deductions were made.
[9] The CEO and Project Director of Tripura JICA Project by its letter
dated 29th June, 2021 with a deliberate intention had informed the petitioner-
company for amendment of the terms and conditions of contract for supply of
manpower by dropping the Clause No.3.9 of the Contract and since the petitioner-
company had not agreed to amend the said clause, the termination of the Contract
came into force following the impugned FIR.
[10] By letter dated 01.04.2022 the petitioner-company had requested the
respondent No.2 to release the bank guarantee amount in connection with the
contracts after submission of no-dues certificate from all outsourcing staffs. In-
spite of the above, the respondent No.2 has not released the bank guarantee
amount. The respondent No.2 is liable to pay salary of six months to the personnel
due to breach of this clause on grudge, the impugned FIR had been filed with mala
fide intention and to delay the payments to the petitioner-company.
[11] The present FIR is bad in law and the continuation of criminal
proceeding arising out of or in connection with the present FIR against the
petitioner-company would amount to abuse of process as the petitioner-company
would be gravely prejudiced on account of baseless and frivolous and scandalous
allegations made by the respondent No.2. The complaint do not attracts an offence
under Section-120B and he contended that the Section-415 of IPC in-order to
punish under Section-420 of IPC and therefore prayed to quash the FIR.
[12] Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent-State
has contended that the ingredients of the complaint made are suitable to register a
case by taking cognizance under Sections-420 and120 (B) of IPC. He also drawn
attention of this Court to the relevant provisions of the agreement and also
recorded the statement under Section-161 of Cr. P.C. of the employees during the
course of investigation wherein it is stated that same amounts were collected from
them. He also placed reliance on the judgment of Hon‟ble Apex Court in A.M.
Mohan v. The State represented by SHO and Another reported in (2024) 3 SCR
722 and submitted charge-sheet which is also filed recently and prayed to dismiss
the present petition.
[13] Mr. S. Lodh, learned counsel appearing for the respondent No.2
adopted the arguments of the learned Addl. P.P.
[14] Heard both sides.
[15] As per the argument of Mr. P. K. Biswas learned senior counsel the
ingredients required under Section-415 of the IPC have not been made out and a
fair reading of the complaint do not indicate that the respondent police authority to
initiate an FIR and to take steps for punishing the petitioner under Section-420 of
IPC. In support of his contention he placed reliance upon the agreement entered
between both i.e. the petitioner and the respondent No.2. The role of the petitioner
is that he is a service provider and has to provide trained manual assistance by
recruiting the people and provide their services in terms of the contract. That being
so, the petitioner performed his obligatory duties and accordingly recruited people
and provide them training by engaging the services of expert from various parts of
the country and thus, men were recruited accordingly.
[16] As per the agreement periodically as and when bills were paid and
accordingly, without any delay, payments were disbursed with the respective
employees. He also submitted even as per the statement of the payments made its
clearly evident that even without obtaining statements of attendance registers and
also during the COVID period even though the employees did not serve he has
disbursed full salaries.
[17] A medical insurance was also provided to the entire employees
under the Group Medical Insurance Scheme which was valid from May 2021 to
May 2022 and payment of Rs. 2,81,097/- paid for sum insured Rs.3,00,00,000.00
(Rupees Three crore) and the names of the employees were also enclosed
accordingly. Reliance has also been placed upon the final settlement of each
employee and payments were also made in April 2022. That apart, learned senior
counsel appearing for the petitioner has relied upon 2024 3 SCR 722 A. M.
Mohan v. The State represented by SHO and Another and prayed before this
Court to set aside the FIR and also the consequential charge sheet which is said to
have been filed recently as stated by the learned Addl. P.P.
[18] At the threshold to take the cognizance of the complaint and register
an FIR under Section-120(B) and 420 of IPC the copy of the complaint is
accordingly extracted hereunder:
"......
To
The Officer-in-Charge,
Amtali Police Station, West Tripura.
Sub:- Complaint in respect of allegation of collection of money by M/S Orion
Security Solutions Pvt. Ltd. in the name of recruitment of personnel and also
allegation of non-payment of due wages.
Ref.No.F.2-2(5)/JICA/SCATFORM/Estt/Group-X/Part-III/2021/6918-919
dt.21/08/2021
Sir,
This is to inform you that the complaint in respect of allegation of collection
of money by M/S Orion Security Solutions Pvt. Ltd. in the name of
recruitment of personnel and also allegation of non-payment of due wages was
sent to the officer in charge, Airport Police Station, Narshinghar, West Tripura
since the office of Project Management Unit, Tripura JICA Project is located
in its jurisdiction. However, the Officer in charge personally visited this office
on 23.08.2021 and advised to file the complaint is Amtali Police Station since
the office of M/S Orion Security Solution Pvt. Ltd. is located in the
jurisdiction of Amtali Police Station.
Therefore, the said complaint with the enclosures received back from officer
in charge Airport Police Station is enclosed herewith with the request to
kindly register FIR under appropriate section against M/S Orion Security
Solutions Pvt. Ltd. and their officials and take necessary further action in
accordance with law.
..........."
[19] A fair reading of the complaint indicates two grievances pointing out
against the petitioner and the same is extracted hereunder:
"(i) complaint in respect of allegation of collection of money by M/S Orion
Security Solutions Pvt. Ltd. in the name of recruitment of personnel and also
(ii)allegation of non-payment of due wages was sent to the officer in charge,
Airport Police Station, Narshinghar, West Tripura since the office of Project
Management Unit, Tripura JICA Project is located in its jurisdiction."
[20] In the said complaint grievance No.1 is allegation of collection of
money by M/S Orion Security Solutions Pvt. Ltd. in the name of recruitment of
personnel (ii) allegation of non-payment of due wages was sent to the officer in
charge of Airport P.S., Narshinghar. On the strength of the complaint made, the
SHO, Amtali P.S. within whose jurisdiction the matter falls has registered an FIR
being FIR No. 2021 AMT 113 dated 25.08.2021 under Sections-120(B)/420 of the
Indian Penal Code.
[21] In the accused column it is shown as M/S Orion Security Solutions
Pvt. Ltd. Since the copy of the complaint does not indicate any specific overt-act
and specific grievances of the individuals obviously it is understood that at the
stage of investigation some information is sufficient to take cognizance and to
proceed with the matter against the accused person. As many as 19 statements
recorded under Section-161 Cr. P.C. are placed before this Court and almost all
are on the same lines. One of such which has been read-over by the learned Addl.
P.P. before this Court which is extracted hereunder:
"Statement of Sri Suman Shil(36) S/O Sri Ajit Kumar Shil of Madhya
Pratapgarh, Near New Jewels Clubs, PS AD Nagar M-9774134656, recorded
U/S 161 CrPC in connection with Amtali PS Case No 2021 AMT 113 Dated
25/08/2021 U/S-120 B/420 IPC.
Myself Sri Suman Shil, on Dt-20/04/2020 through M/S Orion Security
Solution Pvt. Ltd I have joined as Accountant Salary and Taxes at Project for
Sustainable Catchment Project Management in Tripura (SCATFORM)under
Tripura JICA Project. Actual salary of the said post is Rs-25,000/- but M/S
Orion Security Solution Pvt. Ltd used to pay me Rs-20497/-.I was recruited by
the officer of M/S Orion Security Solution Pvt. Ltd Sri-Niraj Kumar Jha. Our
salary used to be drawn from the account of M/S Orion Security Solution Pvt.
Ltd. From my salary, as a provident fund Rs-3600/- and P.Tax Rs-208 used to
be deducted, even then still I used to get paid Rs-695/- less from Rs-25,000/-.
Regarding this matter whenever I asked to Niraj Kumar Jha he never replied
nor explain me. He also used to say that Rs-700/-has been deducted for the
purpose of health insurance. But he never gave me any document in related to
health insurance. When during Job offer cash Rs-12,000/- was taken from me.
We used to get our salary only after dated-07 of any day. In this way Niraj
Kumar Jha cheated me.
Sd.
Sujit Barman
Inptr. Of Amtali Police Station
C/Tripura JICA Project
Prakriti Bhawan, Hatipara, Gandhi Gram
Date 28/01/2022"
[22] A fair reading of the complaint made by the Project Manager Tripura
JICA Project signed by Shivanand S. Talawar, Director Administration & Finance
PMU, Tripura JICA Project where, it has been alleged in the said complaint about
collection of money by M/S Orion Security Solutions Pvt. Ltd. in the name of
recruitment of personnel.
[23] Now, dealing with the said allegation the 161 statement of Mr.
Suman Shil as stated that during his job offer cash of Rs.12,000/- was taken from
him. Insofar as the second allegation that non-payment of due wages, it is
indicated in the complaint that payment was made only after 7th of any date and in
this way Mr. Niraj Kumar Jha cheated me. It is to be seen that from all the
statements recorded under Section-161 Cr. P.C. invariably the person who gave
their statement before the IO under Section-161 Cr. P.C. everyone has stated "in
this way that Niraj Kumar Jha cheated me".
[24] Now, it falls for consideration of this Court whether there is any
specific allegation against the accused person/petitioner herein i.e. M/S Orion
Security Solutions Pvt. Ltd. As seen from the complaint made by the
complainant/respondent No.2 and the statement recorded under Section-161, there
is no express and specific overt-act made by the employees against M/S Orion
Security Solutions Pvt. Ltd regarding collection of money before offering the job.
[25] It is also not indicated in the said 161 statement as to what for this
amount i.e. Rs.12,000/- was received at the time of offering job. Making the
payment of wages after 7th is one of the allegation and the same needs to be tested
whether it attracts Section-120(B) and Section-420 of IPC for the said appreciation
of the legal position whether the said facts would fixed into the Section-415 of IPC
and Section-120(B) of IPC in-order to punish under Section-420. For the purpose
of reference, Sections-120(B), 420 and 415 are extracted hereunder:
"120-B : Punishment of criminal conspiracy- (1) Whoever is a party to a
criminal conspiracy to commit an offence punishable with death
[imprisonment for life] or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if he had
abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six month, or
with fine or with both.
Section-415. Cheating-Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived, and which act or omission causes or
is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to cheat.
Section-420. Cheating and dishonestly inducing delivery of property-
Whoever cheats and thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is signed or sealed, and
which is capable of being converted into a valuable security, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine."
[26] Viewed from any angle since the complaint itself is not specific and
the investigation made by the officers by recording statement under Section-161 of
the so called employees who were yet to have been aggrieved, it do not indicate
that M/S Orion Security Solutions Pvt. Ltd. in any way have cheated the
employees to attract Section-415 of IPC as the ingredients are not justified. This
Court also considers the judgment of the Hon‟ble Apex Court in A.M. Mohan v.
The State represented by SHO and Another, reported in (2024) 3 SCR 722
wherein, it has been categorically stated thus:
"9. The law with regard to exercise of jurisdiction under Section 482 of
Cr.P.C. to quash complaints and criminal proceedings has been succinctly
summarized by this Court in the case of Indian Oil Corporation v. NEPC India
Limited and Others1 after considering the earlier precedents. It will be
apposite to refer to the following observations of this Court in the said case,
which read thus:
"12. The principles relating to exercise of jurisdiction under Section 482 of the
Code of Criminal Procedure to quash complaints and criminal proceedings
have been stated and reiterated by this Court in several decisions. To mention
a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre
[(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6
SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans
Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of
Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] ,
Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401]
, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC
269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar
[(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh
[(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] .
The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint,
even if they are taken at their face value and accepted in their entirety, do not
prima facie constitute any offence or make out the case alleged against the
accused.
For this purpose, the complaint has to be examined as a whole, but without
examining the merits of the allegations. Neither a detailed inquiry nor a (2006)
6 SCC 736 : 2006 INSC 452 meticulous analysis of the material nor an
assessment of the reliability or genuineness of the allegations in the complaint,
is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process
of the court, as when the criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to cause harm, or where the
allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a
legitimate prosecution. The power should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients
of the offence alleged. If the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients have not been stated in
detail, the proceedings should not be quashed. Quashing of the complaint is
warranted only where the complaint is so bereft of even the basic facts which
are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a
criminal offence; or (c) a civil wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from furnishing a cause of action for
seeking remedy in civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different from a criminal
proceeding, the mere fact that the complaint relates to a commercial
transaction or breach of contract, for which a civil remedy is available or has
been availed, is not by itself a ground to quash the criminal proceedings. The
test is whether the allegations in the complaint disclose a criminal offence or
not.
13. While on this issue, it is necessary to take notice of a growing tendency in
business circles to convert purely civil disputes into criminal cases. This is
obviously on account of a prevalent impression that civil law remedies are
time consuming and do not adequately protect the interests of
lenders/creditors. Such a tendency is seen in several family disputes also,
leading to irretrievable breakdown of marriages/families. There is also an
impression that if a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent settlement. 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 G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC
(Cri) 513] this Court observed: (SCC p. 643, para 8)
"It is to be seen if a matter, which is essentially of a civil nature, has been
given a cloak of criminal offence. Criminal proceedings are not a short cut of
other remedies available in law. Before issuing process a criminal court has to
exercise a great deal of caution. For the accused it is a serious matter. This
Court has laid certain principles on the basis of which the High Court is to
exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this
section has to be exercised to prevent abuse of the process of any court or
otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented
from seeking remedies available in criminal law, a complainant who initiates
or persists with a prosecution, being fully aware that the criminal proceedings
are unwarranted and his remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal proceedings, in
accordance with law. One positive step that can be taken by the courts, to curb
unnecessary prosecutions and harassment of innocent parties, is to exercise
their power under Section 250 CrPC more frequently, where they discern
malice or frivolousness or ulterior motives on the part of the complainant. Be
that as it may."
10. The Court has also noted the concern with regard to a growing tendency in
business circles to convert purely civil disputes into criminal cases. The Court
observed that this is obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately protect the interests
of lenders/creditors. The Court also recorded that there is an impression that if
a person could somehow be entangled in a criminal prosecution, there is a
likelihood of imminent settlement. The Court, relying on the law laid down by
it in the case of G. Sagar Suri and Another v. State of U.P. and Others2 held
that any effort to settle civil disputes and claims, which do not involve any
criminal offence, by applying pressure through criminal prosecution (2000) 2
SCC 636 : 2000 INSC 34 should be deprecated and discouraged. The Court
also observed that though no one with a legitimate cause or grievance should
be prevented from seeking remedies available in criminal law, a complainant
who initiates or persists with a prosecution, being fully aware that the criminal
proceedings are unwarranted and his remedy lies only in civil law, should
himself be made accountable, at the end of such misconceived criminal
proceedings, in accordance with law.
11. This Court, in the case of Prof. R.K. Vijayasarathy and Another v. Sudha
Seetharam and Another3 has culled out the ingredients to constitute the
offence under Sections 415 and 420 of IPC, as under:
"15. Section 415 of the Penal Code reads thus:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived, and which act or omission causes or
is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to "cheat"."
18. Section 420 of the Penal Code reads thus:
"420. Cheating and dishonestly inducing delivery of property.--
Whoever cheats and thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is signed or sealed, and
which is capable of being converted into a valuable security, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine."
20. The dishonest inducement is the sine qua non to attract the provisions of
Sections 415 and 420 of IPC. In our considered view, the same is totally
lacking qua the present appellant. In that view of the matter, we find that
continuation of the criminal proceedings against the present appellant would
be nothing else but amount to abuse of process of law resulting in miscarriage
of justice."
[27] Insofar as making the payment after the due date, it cannot be
considered under the definition of cheating. There is no specific allegation that
M/S Orion Security Solutions Pvt. Ltd. have cheated but it is stated in all 161
statements that „Niraj Kumar Jha cheated‟. There is an inconsistency between the
copy of the complaint and the 161 statements.
[28] It is to be seen that any criminal case specific overt-act against a
specific person needs to be indicated if not in the complaint at least in the process
of investigation the same should be reflected. In the complaint there is no whisper
about Mr. Niraj Kumar Jha and in the 161 Statement there is no specific allegation
against M/S Orion Security Solutions Pvt. Ltd. In the FIR, M/S Orion Security
Solutions Pvt. Ltd. has been shown as the accused person but not Mr. Niraj Kumar
Jha.
[29] Since, the ingredients under Section-415 and 120-B of IPC have not
been made out prima facie, this Court is of the opinion that the FIR fails to stand
to the test of Section-415 and 120-B of IPC and accordingly, they are not
punishable under Section-420 of IPC and the FIR is liable to be quashed.
Accordingly the FIR No. 2021 AMT 113 dated 25.08.2021 registered vide Amtali
P.S. stands quashed.
[30] In view of the above, the present petition stands allowed and thus,
disposed of. As a sequel, miscellaneous application pending, if any, shall stand
closed.
T. Amarnath Goud, J
A. Ghosh
ANJAN Digitally signed by
ANJAN GHOSH
GHOSH Date: 2024.08.07
16:35:51 +05'30'
