IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.17600 of 2018
Arising Out of PS.Case No. -849 Year- 2017 Thana -M ADHEPURA District- MADHEPURA
1. Dr. Binod Kumar, Son of Late Jugeshwar Sharma, Resident of Flate No. 12,
Himadri Apartment, West Boring Canal Road, Patna, P.S.-Krishnapuri, Dist.-
Patna.
2. Kumaresh Prasad Singh, Son of Late Sripali Sharan Prasad Singh, Resident o f
at P.O.-Morabadi, behind R.K. Mission, P.S.- Bariatu, District- Ranchi.
3. Harkesh Narayan Singh @ Harendra Prasad Singh, Son of Late Mandeep Singh,
Resident of Village- Balua, P.O.- Balua, P.S.- Brahmpur, District- Buxar.
…. …. Petitioners
Versus
1. The State of Bihar.
2. Alok Kumar, Son of Late Yadunandan Singh, Resident of Ward No. 14,
Madhepura, P.S.- Madhepura, District- Madhepura (Bihar).
…. …. Opposite Parties
Appearance :
For the Petitioner/s : Mr. Raju Giri, Advocate
Mr. Santosh Kumar Giri, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 25-08-2018
This application under Section 482 of the Code of
Criminal Procedure (for short „CrPC‟) has been filed by the
petitioners for quashing the First Information Report (for short
„FIR‟) of Madhepura P.S. Case No.849 of 2017 instituted on
08.12.2017 for the offences punishable under Sections 119, 166,
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379, 403, 409, 420, 477, 504 and 506 of the Indian Penal Code (for
short „IPC‟).
2. Mr. Raju Giri, learned advocate appearing for the
petitioners submitted that petitioner no. 1, Dr. Binod Kumar, was
appointed Vice Chancellor of B.N. Mandal University (for short
„the University‟) on 22.05.2014. He joined the University on
29.05.2014 and has already retired on 28.05.2017. The petitioner
no.2 was Registrar of the University. His first tenure as Registrar
was from 23.11.2007 to 31.08.2011 and again for the second time
he became Registrar on 29.12.2013 and continued till 30.11.2017.
He too has superannuated on 30.11.2017. The petitioner no.3 is the
Finance Officer of the University. He joined the University as
Finance Officer on 15.06.2015 and is still continuing. He contended
that on perusal of the FIR, it would transpire that no criminal
offence is attracted. The dispute, if any, is purely civil in nature. He
pleaded that the dispute is of the year 2000 and the complaint was
filed after substantial delay of about seventeen years, which also
makes the entire complaint illegal. He argued that the allegations
made in the FIR are absurd and inherently improbable. According to
him, the criminal proceeding is manifestly attended with malafide
and has been instituted with an ulterior motive for wreaking
vengeance with a view to spite the accused persons due to private
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and personal grudge.
3. Per contra, Mr. Jharkhandi Upadhyay, learned
Additional Public Prosecutor for the State submitted that the
criminal case is under investigation and it would not be proper for
this Court at the stage of investigation to embark upon an inquiry as
to the probability, reliability or genuineness of the allegations made
in the FIR. He pleaded that the courts role would begin only after
the investigation is completed and police report under Section
173(2) of the CrPC is submitted in the court. He argued that since
the allegations made in the FIR clearly constitute the offences of
criminal breach of trust and cheating, there is no illegality in the
action of the police either in institution of FIR or investigation of
the same. He submitted that even though offences under some of the
sections mentioned in the FIR may not be attracted, the same would
be of no consequence, if any cognizable offence is made out. Under
such circumstance, the police have a statutory duty to investigate
the same.
4. I have heard learned counsel for the parties and
carefully perused the record.
5. The FIR has been instituted on 08.12.2017 on the
basis of an order dated 28.08.2017 passed by the learned Chief
Judicial Magistrate, Madhepura in exercise of his powers conferred
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under Section 156(3) of the CrPC.
6. The prosecution case, in brief, according to the
informant Alok Kumar is that he is a Government Contractor and
carry out contract work in the University also. He was issued work
order on 14.01.2000 by the then Vice Chancellor, Registrar and
Finance Officer for construction of laboratory building of Botany
and Zoology Department. The estimated cost of construction was
Rs.3.60 lacs. He was paid 1.60 lacs as advance and had to complete
the work within nine months. Another work order was also issued to
him on 05.04.2000 for construction of visitors shade in the Ladies
Hostel premises of which construction cost was Rs.36,360/- for
which he was paid Rs.24,000/- in advance and had to complete the
work within three months from the date of issuance of work order.
It was agreed in between the parties that the work would be
executed as per the specification and work quality would be
maintained. The rest of the amount was to be paid on completion of
work. He completed the work on time and the measurement of the
work was also done by the then Junior Engineer. The said engineer
after passing his bill and had sent the same to the concerned
authority of the University. When rest of the payments were not
made, he sent legal notice on 21.01.2002 to the accused persons on
which the then Registrar replied that since matter has been sent to
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the Vigilance Department, Government of Bihar for enquiry, the
payments cannot be made. He received a notice dated 21.01.2008
through which he was directed to remain present as the work
executed by him was to be looked into by the inquiry team. Even
though the inquiry team found the work executed by him to be
proper, payment of the rest amount was not remitted to him.
7. The informant has further alleged that payment in
case of a similarly placed contractor, namely, Jai Prakash Ojha for
the contract work executed by him has already been made but on
one pretext or the other he is not being paid his due amount.
8. He has also alleged that building materials worth
Rs.44,500/- belonging to him were lying in the University
compound, but he was not allowed to remove the same on the
ground that inquiry was going on. On 19.08.2015, on receipt of
information that his building materials lying in the University
compound were being removed, he rushed at the place and resisted
the removal but no one heard him and materials were removed and
he was also threatened.
9. On the basis of allegations made above, the FIR
in question was registered and investigation was taken up.
10. Apparently, the claim of the informant relate to
non-payment of overdue amount against two work contracts offered
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to him by the University in the year 2000. The works were also
completed in the year 2000 itself. Since then, the informant is
representing to the authorities of the University for the payment of
unpaid amount, but the same has been denied firstly, on the ground
of some ongoing inquiry and subsequently on some other pretext.
11. It is also an admitted fact that for the works in
question, the informant was also paid certain amount in advance.
12. There is no allegation in the FIR that the accused
persons induced the informant fraudulently or dishonestly to deliver
any property to any person.
13. There is also no allegation of culpable intent
against the petitioners or any other accused right at the beginning.
Merely because the University failed to pay the alleged overdue
amount to the informant, it cannot be said that the accused persons
committed the offence of cheating.
14. It is well settled position in law that mere breach
of contract can not give rise to criminal prosecution. In Hriday
Ranjan Prasad Verma and Ors. vs. State of Bihar and Another
[(2000) 4 SCC 168], the Supreme Court held as under:-
“In determining the question it has to be kept in
mind that the distinction between mere breach of
contract and the offence of cheating is a fine one.
It depends upon the intention of the accused at the
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time to inducement which may be judged by his
subsequent conduct but for this subsequent
conduct is not the sole test. Mere breach of
contract cannot give rise to criminal prosecution
for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
transaction, that is, the time when the offence is
said to have been committed. Therefore it is the
intention which is the gist of the offence. To hold
a person guilty of cheating it is necessary to show
that he had fraudulent or dishonest intention at the
time of making the promise. From his mere
failure to keep up promise subsequently such a
culpable intention right at the beginning, that is,
when he made the promise cannot be presumed”.
15. In Murari Lal Gupta v. Gopi Singh [(2006) 2
SCC (Cri) 430], the Supreme Court quashed the complaint of
criminal proceeding instituted under Sections 406 and 420 of the
IPC on the following analysis:-
“The complaint does not make any averment so
as to infer any fraudulent or dishonest
inducement having been made by the petitioner
pursuant to which the respondent parted with the
money. It is not the case of the respondent that
the petitioner does not have the property or that
the petitioner was not competent to enter into an
agreement to sell or could not have transferred
title in the property of the respondent. Merely
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because an agreement to sell was entered into
which agreement the petitioner failed to honour,
it cannot be said that the petitioner has cheated
the respondent. No case for prosecution under
Section 420 or Section 406 IPC is made out even
prima facie. …”
16. In S.W. Palanitkar and Ors. v. State of Bihar
and Anr. [(2012) 1 SCC 241], it has been held that in order to
constitute an offence of cheating, the intention to deceive should be
in existence at the time when the inducement was made. It is
necessary to show that a person had fraudulent or dishonest
intention at the time of making the promise, to say that he
committed an act of cheating. A Mere failure to keep up promise
subsequently cannot be presumed as an act leading to cheating.
17. As far as the offence of criminal breach of trust
is concerned, it is essential that the prosecution must prove first of
all that the accused was entrusted with some property or with any
dominion or power over it. It also to be alleged that in respect of the
property so entrusted, there was dishonest misappropriation or
dishonest conversion or dishonest use or disposal in violation of a
direction of law or legal contract by the accused himself or by
someone else, which he is willingly suffer to do.
18. There is no allegation in the FIR that the
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accused persons were entrusted with any property. The allegation of
removal of building material from the premises of the University
after 15 years of execution of contract work seems to be highly
improbable and unbelievable. Moreover, no specific allegation
against any one has been made in the FIR in this regard.
19. Since the learned Additional Public Prosecutor
for the State has admitted that apart from the offences criminal
breach of trust and cheating, no other offence is made out, I am not
discussing in detail as with regard to other offences for which also
the FIR has been instituted. Suffice to say, looking at the allegations
made in the FIR, none of the ingredients of those offences are
attracted in the case in hand.
20. The power to quash a criminal proceeding
where the FIR prima facie makes out no offence has been
considered by the Supreme Court in several cases. The Supreme
Court has observed in number of cases that if the allegations made
in the FIR taken at their face value and accepted in their entirety do
not constitute an offence, the criminal proceedings instituted on the
basis of such an FIR should be quashed.
21. In R.P. Kapur v. State of Punjab [AIR 1960
SC 866], the Supreme Court formulated following categories of
cases where inherent jurisdiction could and should be exercised to
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quash proceeding:-
“(i) Where there was a legal bar against the
institution or continuance of the proceedings.
(ii) Where the allegations in the first information
report or complaint did not make out the offence
alleged; and
(iii) Where either there was no legal evidence
adduced in support of the charge or the evidence
adduced clearly or manifestly failed to prove the
charge”.
22. In R. Kalyani vs. Janak C. Mehta and Ors.
[(2009) 1 SCC 516], the Supreme Court culled out the following
propositions of law for quashing a criminal proceedings:-
“(1) The High Court ordinarily would not
exercise its inherent jurisdiction to quash a
criminal proceeding and, in particular, a First
Information Report unless the allegations
contained therein, even if given face value and
taken to be correct in their entirety, disclosed no
cognizable offence.
(2) For the said purpose, the Court, save and
except in very exceptional circumstances, would
not look to any document relied upon by the
defence.
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(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR
disclose commission of an offence, the court shall
not go beyond the same and pass an order in
favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute, the
same by itself may not be a ground to hold that
the criminal proceedings should not be allowed to
continue”.
23. In State of Haryana vs. Bhajan Lal Ors.
[1992 Supp. (1) SCC 335] having surveyed the principle of law
enunciated by the Supreme Court in large number of decisions
relating to extraordinary jurisdiction under Article 226 of the
Constitution of India and inherent powers under Section 482 of the
Code of Criminal Procedure, the following categories of cases are
given by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any Court or otherwise to
secure the ends of justice:-
“(1) where the allegations made in the First
Information Report or 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 a case against the accused;
(2) where the allegations in the First Information
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Report and other materials, if any, accompanying
the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code;
(3) where the uncontroverted allegations made in
the FIR or ‘complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused;
(4) where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code;
(5) where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
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providing efficacious redress for the grievance of
the aggrieved party;
(7) where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private
and personal grudge”.
24. In view of the ratio laid down by the Supreme
Court in the decisions noted above, it can safely be said that when
FIR contains allegations which make out a cognizable offence, then
quashing of FIR in exercise of its inherent power under Section 482
of the CrPC would not be justified. However, the Court should not
hesitate in quashing a criminal proceeding where the allegations
made in the FIR ex facie makes no offence.
25. Keeping the above proposition of law in mind,
when I look to the allegations made in the FIR, as contained in
Annexure-1 to this petition, I find that the allegations made therein
do not attract any cognizable offence. The allegations made in the
FIR are in the nature of money claim for which cause of action had
arisen in the year 2000 itself. The informant ought to have resorted
to civil remedy for recovery of money by way of filing a suit in the
court of competent jurisdiction. That having not been done, the
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belated institution of the present FIR against the office bearers of
the University, who were not even attached with the affairs of the
University at the relevant time, is certainly an action taken by the
informant in desperation with ulterior motive.
26. In my considered opinion, the criminal case has
been instituted by the informant with a mala fide intention in order
to put pressure upon the authorities of the University for realization
of the claimed amount.
27. The Supreme Court has deprecated the tendency
to convert purely civil dispute into a criminal case and the court
entertaining such matters for adjudication.
28. Expressing serious concern over a practice of
conversion of civil cases into the criminal case, the Supreme Court
in Rajesh Bajaj vs. State NCT of Delhi and Ors. [(1999) 3 SCC
259] observed: “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”. The Bench further
observed: “There is also an impression that if a person could
somehow be entangled in a criminal prosecution, there is a
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likelihood of imminent settlement. Any effort to settle civil disputes
and claims, who do not involve any criminal offence, by applying
pressure through criminal prosecution should be deprecated and
discouraged”.
29. In M/s. Indian Oil Corporation v. NEPC
India Ltd. Ors. [(2006) 6 SCC 736], the Supreme Court has
taken note of a growing tendency in business circles to convert
purely civil disputes into criminal case.
30. In Binod Kumar vs. State of Bihar [(2014) 10
SCC 663], the Supreme Court reiterated the principle of law that
criminal proceedings are not a shortcut for other remedies. After
holding that no case of cheating is made out, the court quashed the
FIRs.
31. In view of my aforesaid analysis, allowing the
investigation to continue any more would only be an exercise in
futility.
32. Resultantly, the FIR of Madhepura P.S. Case
No.849 of 2017 as well as the entire investigation conducted in the
said case is quashed.
33. The application stands allowed.
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34. Let a copy of the order be communicated to the
Chief Judicial Magistrate, Madhepura.
(Ashwani Kumar Singh, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.09.2018
Transmission 01.09.2018
Date
