Jayachandran T., Son of Shri P. Thiruvengadam vs The State of Bihar

Heard learned counsel for the petitioner as well as the

learned counsel for the State-respondents. No one appears on behalf

of respondent No.3.

By this application, under Article 226 of the

Constitution of India, the petitioner has sought for quashing of the

F.I.R. of Murliganj Police Station Case No.57 of 2015, pending in

the Court of Chief Judicial Magistrate, Madhepura, inter alia on the

ground that the F.I.R. discloses no offence; rather the matter is

purely of civil dispute, therefore, criminal prosecution of the

petitioner would be an abuse of the process of the court.

The respondent No.3 had filed Murliganj Police

Station Case No.57 of 2015, under Sections 406 / 419 / 420 of the

Indian Penal Code, against the petitioner and others stating therein

that respondent No.3 is owner of the petrol pump named M/s.

Motilal Ramswarup at Murliganj. Co-accused S.N. Singh,

Managing Director of HACS Security Services and Infra-Tel

Private Limited, introduced to the informant that he is vendor of

M/s. American Town Company and his main business is to provide

diesel in the generator sets installed at mobile towers. On his

persuasion the informant agreed to supply diesel from his petrol

pump and S.N. Singh assured him for payment of the cost of diesel

through petro-card. During business transaction some of the

payments of supplied diesel were received by the informant.

However, after four days, the petro-card was disabled and payment

stopped. Thereafter, the informant repeatedly requested the said

S.N. Singh and American Tower Company, but they evaded the

payment. Even no reply/satisfactory reply was received in

pursuance of legal notice sent to the accused persons.

Submission of the petitioner is that a bare perusal of

the F.I.R. would reveal that there was no negotiation or agreement

directly in between the informant and American Tower Company or

its officials. Therefore, the allegation of dishonest and fraudulent

intention of the party making the promise is not attracted against the

petitioner, who is an office bearer of American Tower Company.

Moreover, the company is not an accused in this case. Hence, the

employee of the company cannot be fastened upon with the criminal

liability vicariously as held by the Hon''ble Apex Court in R.

Kalyani V. Janak C. Mehta, reported in 2009 (1) SCC 516.

Contention is that the main business of American

Tower Company is to enable to operate and leased out the Telecom

Infrastructure to the companies engaged in providing mobile

telephone services. For the purpose, the company has to install

mobile towers all over the country including the different places

into the State of Bihar based on requirement of the customer and

also on the basis of network planning. The Company generally

hires the services of different contractors for maintenance of the

said towers and also for supply of diesel for the generator sets

installed at towers. The American Tower Company entered into an

agreement on 02.12.2013 with M/s. HACS Security Services for

operation and maintenance services including the supply of diesel

for the generator sets vide Annexure-2. A bare perusal of the F.I.R.

would show that the said HACS Company had contacted the

informant. The said company had entered into an agreement for

supply of diesel by the informant and payment to the informant

through petro-card. Thus, the apparent liability of payment was of HACS Company and that too was a civil liability as each and every

non-payment of cost of anything does not come within mischief of

cheating.

Submission of the State-respondent is that the

supervisory authority of the aforesaid case has found the allegation

true against the petitioner also. Hence, the F.I.R. should not be

interfered with. Moreover, during investigation more evidences are

likely to come out.

On careful perusal of the F.I.R. it is evident that there

is no allegation against this petitioner of dishonest or fraudulent

promise to the informant at any point of time. The entire alleged

occurrence took place due to agreement between the HACS

Security Services and Infra-Tel Private Limited and the informant.

Therefore, ingredients of the offences of cheating or criminal

misappropriation or breach of trust is not made out against the

petitioner on bare analysis of the requirement of those offences as

held in the case of Hriday Ranjan Prasad V. State of Bihar,

reported in 2000(4) SCC 168. Secondly the American Tower

Company is not accused in this case. Hence, the petitioner, who is

an employ of the said company, cannot be fastened with vicarious

liability in view of the judgment of the Apex Court in R. Kalyani

V. Janak C. Mehta, reported in 2009(1) SCC 516, paragraphs-29

and 30 are being reproduced below:

"29. The allegations contained in the first information report, therefore, do not disclose an offence against Respondents 1 and 2. They have in their individual capacity been charged for commission of offences of cheating, criminal breach of trust and forgery. As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Penal Code, did not and could not arise.

Similarly, it has not been alleged that they were entrusted with or otherwise had dominion over the property of the appellant or they have committed any criminal breach of trust."

Therefore, in my view, the F.I.R. against the

petitioner is an abuse of the process of the court, which cannot be

allowed to perpetuate. Hence, F.I.R. of Murliganj Police Station

Case No.57 of 2015 against the petitioner stands quashed and,

accordingly, this application is allowed.