Arbind Kumar Singh @ Arvind Singh vs State Of Jharkhand And Another

Sanjay Kumar Dwivedi, J

Heard Mr. Shailesh Kumar Singh, the learned counsel appearing for the petitioner, Mr. Rajesh Kumar the learned counsel appearing on behalf of the respondent State and Mr. Lukesh Kumar, the learned counsel appearing for the O.P.No.2.

This petition is filed for quashing of the entire criminal proceeding including the order dated 01.02.2019 whereby the discharge petition of the petitioner has been rejected in connection with C.P.Case No.98 of 2011. A prayer is also made for quashing of the order dated 03.08.2019 passed in Criminal Revision No.63 of 2019 whereby the learned court’s order has been affirmed by the learned revisional court.

The complaint case was filed alleging therein that the petitioner is a transporter and got contract in Pakur District for transporting coal from Amla Para Colliery to Pakur railway siding and was using his vehicles for aforesaid work and some of which he had purchased and some had financed. The petitioner gave the work of transporting of coal in his aforesaid contract to the complainant and also gave his 3 vehicles on 22.06.2006 with condition that he would have to pay rest 35 monthly installments of these vehicles to the finance company and also promised that after full and final payment of installments, he would get the vehicle registered in the name of the complainant. The petitioner took total Rs.1,00,000/- as advance for each vehicle to the petitioner and thereby took total Rs.3,00,000/- from the complainant and handed over the vehicles in question to the complainant who started doing his work. The complainant plied the vehicles for 31 months and petitioner used to pay him after deducting the installments of vehicles and on the month of January 2010 the petitioner suddenly asked to deposit rest 4 installments and when complainant expressed his inability to deposit the same he took the possessions of the vehicles.

Mr. Shailesh Kumar Singh, the learned counsel appearing for the petitioner submits that the petitioner has preferred the discharge petition which was rejected by the learned court and the same was also affirmed by the learned revisional court. He submits that the petitioner is the owner of the vehicles in question and the O.P.No.2 was authorizedly operating the said vehicle being employee of the company. He submits that there is no agreement or any memorandum of understanding for running of the said vehicles. He submits that the complainant many times received payment from the petitioner for the work done. He further submits that the trucks in question are registered in the name of the petitioner. He submits that when the earning of the vehicles was not being handed over to the petitioner, the petitioner taken back of the said vehicle as the petitioner is the owner of the vehicles in question. He submits that from the very beginning the intention of cheating is not there and in view of that no case of cheating is made out. He referred to the solemn affirmation as well as the before-charge evidence brought by way of supplementary affidavit and referring these two, that is, the solemn affirmation and the before-charge evidence, he submits that admissions are there that there is no agreement and there is no payment receipt and at the time of said arrangement, there is no intention of cheating. He submits that in view of that, no case of cheating is made out and in spite of that, the learned court has been pleased to dismiss the discharge petition which has been affirmed by the learned revisional court. He further submits that the charge is framed by the learned court, but if the High Court finds that case is not made out, for the end of justice, the High Court can interfere.

Mr. Lukesh Kumar, the learned counsel appearing on behalf of the O.P.No.2 submits that the complainant has paid 31 EMIs and only 4 EMIs were not paid, however, the said arrangement was terminated by the petitioner on the ground that the rest of the entire amount is required to be paid, he submits that there is no agreement between the parties.

Mr. Rajesh Kumar, the learned counsel for the respondent State submits that the case is arising out of complaint case and pursuant to that, the learned court has been pleased to take cognizance.

It is an admitted position that there is no agreement between the parties. The ownership of the vehicles in question was not denied by the O.P.No.2 and the vehicles are still in the name of the petitioner. In the solemn affirmation the complainant has admitted in paragraph no.9 that at the time of said arrangement there was no intention of cheating and further in before-charge evidence, it has been disclosed that the vehicles in question are in the name of the petitioner and by way of profit earnings the amount was paid to the petitioner of Rs.47,000/- for each of the vehicle. The Form –B is another document also admitted in favour of the petitioner in the before-charge evidence. Thus, it is crystal clear that from the very beginning the intention of cheating is not there. If the intention from the very beginning of cheating is not there, in light of section 415 of the IPC, no case of cheating is made out. Further, every contract cannot be the subject matter of criminal proceeding as has been held by the Hon’ble Supreme Court in the case of “Vijay Kumar Ghai v. State of W.B., (2022) 7 SCC 124. Paragraph no.12 of the said judgment is quoted below:

“12. The legality of the second FIR was extensively discussed by this Court in T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC 181. It was held that there can be no second FIR where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognizable offences. It was further held that once an FIR postulated by the provisions of Section 154 of Cr.P.C has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the Cr.P.C. The Court further held that barring situations in which a counter case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an "abuse of the statutory power of investigation" and may be a fit case for the exercise of power either under Section 482 of Cr.P.C or Articles 226/227 of the Constitution of India”

It appears that dispute if any is there, that is of civil in nature and for that, criminal colour has been given and further to allow the present proceeding to continue will amount to abuse of the process of law.

In view of the above facts, reasons and analysis, the order dated 01.02.2019 whereby the discharge petition of the petitioner has been rejected in connection with C.P.Case No.98 of 2011 as well as revisional order dated 03.08.2019 passed in Cr.Rev.No.63 of 2019 are quashed. The petitioner is discharged from the case.

This petition is allowed and disposed of.

It is made clear that if any civil proceeding is there, that will be decided in accordance with law without prejudice of this order as this order has been passed only to deal with the criminal case.

The impugned order is set aside and the petitioner is discharged from the case.

Pending petition if any also stands disposed of accordingly.