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S. Mohan vs State Of Jharkhand on 10 February, 2020

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2936 of 2013
1. S. Mohan
2. Soumen Paul
3. Suresh Kumar Jayswal @ Jaiswal
4. Srinath Mista @ Srinath Mesta
5. Tanmoy Boxi…………… Petitioner(s)
Versus
1. State of Jharkhand
2. Dinanath Rai………… Opp. Party(s)
……

Coram: Hon’ble Mr. Justice Ananda Sen
……

For the Petitioner : Mr. Nitin Kr. Pasari, Advocate
Ms. Vishakha Gupta, Advocate
For O.P. No. 2 : Mr. Indrajit Sinha, Advocate
Mr. Ankit Vishal, Advocate
For the State : Mr. Birendra Burman, A.P.P.
……

3/10.02.2020 Heard learned counsel for the petitioner, learned counsel for O.P.
No. 2 and the learned A.P.P. for the State.

2. In this application, the petitioners, who are the Officers of Ms.
Larsen Tubro Limited (L T Limited), have challenged the F.I.R., so far
as it relates to them.

3. Petitioner no. 1 is the Administrative Head, petitioner no. 2 is the
Ex-Account Officer, petitioner no. 3 is the Project Manager, petitioner no. 4
is the Civil Engineer and petitioner no. 5 is the Project Accountant of M/s.
L T Limited.

4. The FIR was lodged as B.S. City P.S. Case No. 405 of 2013 and
was registered for the offence punishable under Sections 406, 420/34 of
the Indian Penal Code. The allegation in the FIR is that for some
construction work of Bokaro Steel Plant a contract was awarded to M/s L
T Limited. The said Company appointed sub-contractors namely, Costal
Infra, Bokaro and Chitra Builders Pvt. Limited for the said work. It is
alleged that Costal Infra, Bokaro and Chitra Builders further placed order
with O.P. No. 2 for supplying stone chips and sand. In the FIR, it has
further been alleged that O.P. No. 2 supplied the stone cheap and sand
but M/s. L T Limited has not made their due payments and thus an
amount of Rs. 45,57,032/- remained due which is alleged to have been
misappropriated by the Company. On the aforesaid background, FIR has
been lodged.

5. Learned counsel appearing for the petitioners submits that from
perusal of the entire FIR, no criminal offence is made out. A money claim
has been given the colour of a criminal offence, which is absolutely but an
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abuse of the process of law. He submits that in the entire FIR there was
nothing to suggest that there was any intention to cheat O.P. No. 2. He
submits that M/s. L T Limited has no privity of contract with O.P. No.2,
rather it is with Costal Infra, Bokaro and Chitra Builders, who had issued
supply order of stone chips and sand to O.P. No. 2.

6. Learned counsel appearing for O.P. No. 2 and the State submits
that the sand and stone cheap was supplied and the principal contractor
was M/s L T Limited and, thus, it was the prime responsibility of M/s L
T Limited to see that the amount be paid to the contractor but the
Company has not paid the amount rather has misappropriated the same.

7. After going through the FIR, I find that the FIR was registered for
the offence punishable under Section 406, 420/34 of the Indian Penal
Code and it is admitted case of the parties that Bokaro Steel Plant has
awarded the contract to M/s L T Limited and M/s. L T Limited
appointed sub-contractors namely, Costal Infra, Bokaro and Chitra
Builders Pvt. Ltd. The supply order of sand and stone chip to O.P. No. 2
was issued by Costal Infra, Bokaro and Chitra Builders and admittedly not
by M/s. L T Limited. Thus, the privity of contract was between Costal
Infra Bokaro and the informant-O.P. No. 2 and not with M/s. L T
Limited.

8. Section 420 of the Indian Penal Code provides punishment of
cheating and dishonestly inducing delivery of property. Section provides
that 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.

9. Further, cheating is described under Section 415 of the Indian
Penal Code. Section states that 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 deceive, 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”.

10. Further, Section 406 of the Indian Penal Code is the punishment
for criminal breach of trust. Criminal breach of trust has been defined in
Section 405 IPC. From the aforesaid provision of law to bring home the
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charge under Section 420 IPC, I find that there should be an inducement
and deceitful means to deliver a property.

11. The Hon’ble Supreme Court in the case of “S.W.Palanitkar Others-
versus- State of Bihar Another, reported in (2002) 1 SCC 241” in Para-10 has held
as follows:-

“10. The ingredients of an offence of cheating are: (i) there should be
fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the
person so deceived should be induced to deliver any property to any person,
or to consent that any person shall retain any property; or (b) the person so
deceived should be intentionally induced to do or omit to do anything which
he would not do or omit if he were not so deceived; and (iii) in cases covered
by (ii)(b), the act of omission should be one which causes or is likely to cause
damage or harm to the person induced in body, mind, reputation or
property.”

12. Thus, from the facts of this case and applying the law, I find that
the ingredients are not made out to attract offence under Section 420 IPC.
So far as Section 406 IPC is concerned, I find that M/s. L T Limited was
not entrusted with any property by the informant. If anything was
entrusted it was entrusted to Costal Infra Bokaro and Chitra Builders Pvt.
Ltd. Thus, in absence of any entrustment as defined under Section 405
IPC, Section 406 IPC is also not attracted in this case, so far as petitioners
are concerned.

13. I find from the FIR that the business transaction has been given a
colour of a criminal case. Mere non-payment of business dues for any
reason cannot be a criminal offence. Further, I find that the Company, i.e.
M/s. L T Limited has not been made party in this case, rather its
Officials have been made party without assigning any overt act against
them. Thus, I find that lodging of this FIR against these petitioners is
nothing but is an abuse of the process of law. Thus, FIR being B.S.City
P.S. Case No,. 405 of 2013, corresponding to G.R. No. 1627 of 2013, so far
as these petitioners are concerned, is hereby quashed and set aside.

14. This criminal miscellaneous petition stands allowed.

(Ananda Sen, J)
Mukund/-cp.3

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