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Dr. Binod Kumar & Ors vs State Of Bihar & Anr on 25 August, 2018

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,
Patna High Court Cr.M isc. No.17600 of 2018 dt.25-08-2018

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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.

Patna High Court Cr.M isc. No.17600 of 2018 dt.25-08-2018

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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

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