RABINDRA NATH TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Learned counsel for the petitioners, learned A.P.P. for the State and learned counsel appearing for the opposite party No. 2 are present. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') seeks quashing of order dated 28.6.2012 passed by the Chief Judicial Magistrate, Vaishali at Hajipur in Lalganj P.S. Case No. 154 of 2009 by which cognizance has been taken against the petitioners for offence punishable under Sections 406/420/467/468/34 of the Indian Penal Code.

(2.) The opposite party No. 2 had filed complaint against the petitioners alleging therein that on 10.12.2008 the petitioners had come to the house of the complainant and had showed a contractor agreement paper of B.E.M.L. Ltd.-cum-Industrial Marketing and offered the complainant to work as Contractor and Supervisor in the Industrial Marketing at Allahabad for retrofitting of railway coaches by making the double berths into triple births. It is stated that he was assured that the entire labour cost minus the materials would be paid to the complainant. It is further submitted that the complainant did the work between the period 18.12.2008 to 4.9.2009 under the North Central Railway at Allahabad as Supervisor-cum-Contractor for B.E.M.L. Ltd.-cum-Industrial Marketing and completed the said work in 33 coaches. It is submitted that the labour cost of Rs. 8,79,450/- was payable to the complainant but the petitioners paid only Rs. 1,29,273/- and also created obstacle in the work. It is further submitted that only Rs. 61,573/-, 15,000/-, 5700/-, 12,000/- and Rs. 35,000/- were paid but with regard to the rest, on some pretext or the other, payment was not made and thus it is alleged that the petitioners had cheated the complainant of Rs. 7,50,187/-.

(3.) Learned counsel for the petitioners submits that from the entire reading of the complaint which has been converted into an F.I.R., it is clear that the dispute is purely of a civil nature relating to a commercial contract. It is submitted that as per the complaint, the complainant was given work to be completed at Allahabad for the Railways, by the Company represented by the petitioners. It is further submitted that despite the work having been completed for an amount of Rs. 8,79,450/-, only Rs. 1,29,273/- had been paid. It is further alleged that certain amounts were paid by the petitioners to the complainant but the remaining amount of Rs. 7,50,187/- still remains outstanding and the same has been fraudulently withheld. Learned counsel submits that from the entire reading of the complaint, it would be clear that the complainant has admitted that he was given a sub-contract by the Company represented by the petitioners for completing certain work for the Railways at Allahabad. It is further submitted that the Company itself operates from Kolkata in the State of West Bengal. Learned counsel submits that pursuant to the stand in the complaint that work for more than Rs. Eight Lakhs was done and payment made was only of about Rs. 1.29 Lakhs, the civil nature of the dispute is writ large inasmuch as it is not a case where no payment has been made by the complainant for whatever work he may have done and rather there is an admission that certain payments were made, though it is alleged that full and final payment, has not been made. Learned counsel refers to Annexure-2 of the application which is letter dated 6th March, 2008 which shows that pursuant to the railway authorities having given contract to B.E.M.L. Ltd., for execution of work, B.E.M.L. Ltd. had appointed IMECO Ltd. as Contractor. Thereafter, IMECO Ltd. had entrusted the work for the specific site to Industrial Marketing. Learned counsel has also referred to Annexure-3 which is copy of voucher showing that the complainant was appointed as Supervisor to supervise the work at Allahabad site as a temporary salary based employee. After being paid salary from time to time, he had left work at his own free will and the office of the petitioner No. 1 had paid all arrears of salary and full and final settlement for the work period 17.12.2008 to 31.1.2009 which was accepted by the complainant who also signed on the same on 5.2.2009. This, according to learned counsel for the petitioners, is clearly a civil dispute arising out of contractual matters during the course of business involving financial transactions. It is submitted that in the complaint there is no allegation as to any act of inducement on the part of the accused (petitioners) and intention to cheat the complainant from the very inception since after the work, payments have been made of quite a huge amount to the complainant. In such a case, the Courts have interfered in the matter under Section 482 of the Code. For such proposition, learned counsel for the petitioners has relied upon a decision of the Hon'ble Supreme Court in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal, 2007 7 SCC 373. Learned counsel further submits that merely because the petitioners are alleged to have failed to honour any agreement, it cannot be said that they had cheated the complainant. In the present case, though some amount was paid to the complainant but it is alleged that the balance was not paid. Thus, according to him, no case for prosecution is made out under Sections 406 and 420 of the Indian Penal Code. For such proposition, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case of Murari Lal Gupta vs. Gopi Singh, 2005 13 SCC 699. Learned counsel also submits that the law is settled on the point that a complaint alleging violation or dispute due to breach of contract, is a misuse of the criminal process to put undue pressure in civil disputes and an application under Section 482 of the Code is maintainable for quashing such proceeding. For such proposition, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case of Indian Oil Corporation vs. NEPC India Ltd., 2006 6 SCC 736, the relevant being at paragraph-12.