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Judgment
Radha Mohan Prasad, J.—Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel appearing for the complainant-opposite party No. 2. In this miscellaneous application, prayer is for quashing the entire criminal prosecution, vide Complaint Case No. 287 of 2001, including the order dated 5.9.2001, whereby and whereunder the learned Magistrate has taken cognizance against the petitioners under sections 420, 465, 467, 468, 406, 409 and 417 I.P.C., and also u/s 138 of the Negotiable Instruments Act (hereinafter referred to as ''the Act'').
The complainant is the Secretary of the Voluntary Organisation registered under the Bihar Societies Registration Act and licensed by the Government of India which accepts any contribution from abroad.
According to the complainant, he sent proposal to the accused persons for the project of rehabilitation of carpet child labourers in Madhubani. After fulfilling all the required formalities, the Project was sanctioned and an agreement was signed on 3rd March, 2000 for a period of three years'' duration. The budget was also approved and accorded by the Reha Secretariat. According to the complainant, as per the agreement Rs. 3,13,400/- was released in his favour and accordingly the Project started its functioning from 16th March, 2000. It is alleged that later although a sum of Rs. 3,90,000/- was sanctioned, but as against the same only a sum of Rs. 39,000/- was released which was pointed out to the Programme Co-ordinator-accused No. 2, but she kept on giving false assurance that the same shall be corrected and under the goodwill and gesture and reposing full faith in good conscience in the accused persons, the programme went ahead as usual incurring heavy loss entailing enormous financial pressure on the institution, which is a voluntary organisation.
It is alleged that vide letter dated 22.12.2000 a demand draft of Rs. 2,82,454/- was sent to the complainant alongwith the acknowledgement receipt by way of second instalment without meeting the loss sustained earlier. The said demand draft was also faulty one as it was issued in the name of ''Rashtriya Gram Vidhyapith'' instead of ''Gramin Vidhyapith'' which made it non-negotiable. On detection of the said defect, the same was sent back to them for necessary correction of 29.12.2000, which was never returned after necessary correction. Complainant was later served with letter dated 22.1.2001 informing him that not only the Project has been cancelled rather the payment of second instalment has also been withdrawn, whereupon the complainant on 13th February, 2001 wrote a letter to accused No. 1, being the Head of the Organisation, apprising them the circumstances leading to the entire episode and the accused persons were reminded also through telephone many time, but there was no response. It is alleged that the complainant met accused No. 1 at his Delhi address, but nothing plausible came out. Thus, according to the complainant, such action is contrary to the good behaviour, quite unbecoming, absolutely illegal and criminal in nature such as criminal breach of trust, forgery for the purpose of cheating and forgery of valuable security as in the agreement itself Rs. 3,90,000/- has been knowingly slashed down to Rs. 39,000/-. It is, thus, alleged that it is a case of cheating and thereby dishonestly inducing delivery of property or making alteration or destruction of a valuable security.
As regards unilateral cancellation, it is alleged that the same is highly illegal and gross violation of natural justice, principle of equity, fair play and good behaviour. As regards invoking of section 138 of N.I. Act, it is alleged that the letter requesting the accused persons to make necessary correction on the demand draft has to be taken as a mandatory notice required for the said purpose and since the demand draft was issued in lieu of work done as per the scheme, withholding of the same by giving effect to cancellation from the retrospective effect is a glaring example of committing fraud, cheating, putting under the duress for wrongful gain with all criminal intention.
Learned counsel for the petitioners contended that bare perusal of the complaint (Annexure 1) and the agreement (Annexure 2) would show that no offence at all is made out against these petitioners as, in fact, the agreement was between Terre des Hommes (Germany) India Programme through its representative Shri C.J. George designated as Programme Coordinator (hereinafter referred to as "Tdh (G) I.P.") and Rashtriya Gramin Vidyapeeth through its representative Shri/Smt Anita designated as Secretary (hereinafter referred to as "Project Partner"). None of the petitioners is party to the said agreement (Annexure 2). According to the petitioners, they are the officials of Reha Secretariat, which is an organization only engaged for a programme co-ordination which primarily deals with the programme monitoring mainly inside India on the instructions of Foreign Funding Agencies, such, as Tdh (G) LP.'' as well as Christian U.K. and Bread for the world. Learned counsel for the petitioners, thus, contended that no doubt petitioner No. 1 is the President of Reha Secretariat and petitioner No. 2 is the Programme Coordinator of Reha Programme, but bare perusal of the entire complaint would show that there is no specific allegation as against the petitioners with regard to any transaction whatsoever and as such no offence as alleged against them is made out. It is contended that there was no entrustment of anything to them by the complainant nor they were merchant and as such there is no question of cheating or dishonestly inducing nor there was any alteration or destruction of any valuable security. It is contended that from perusal of the entire complaint petition it would appear that even if they are taken at their face value and accepted in their entirety, no prima facie case making out any offence is made out against these petitioners. It is also contended that no offence u/s 138 of the N.I. Act is made out against the petitioners as no cheque was ever issued by them in the name of the complainant rather the demand draft, which was a prepared instrument, was issued by the Tdh (G) I.P. and as such there is no question of their committing any offence under the said provision. Learned counsel contended that, in fact, there is no document or delivery of any property to the petitioners by the complainant rather, on the other hand, it is the complainant, who has cheated the Funders Tdh (G) LP. as well as to the I.R.S. He, thus, contended that it will be a gross miscarriage of justice to allow criminal prosecution as against these petitioners and quashing of the same would secure the ends of justice.
Learned counsel for the complainant-opposite party No. 2 has failed to show from the complaint petition that as to what offence is made out against these petitioners. It is not even alleged that a demand draft was ever issued by these petitioners. The only allegation is that the petitioners were the Co-ordinator and assured the complainant to get it corrected. From the agreement also it would appear that the Project Partner agreed to spend the grant accordingly to the budget sanctioned jointly by Donor Agencies and agreed to use the grant as economically as possible. Apart from this, as per clause 10, the Donor Agencies entrusted the Indian Reha Secretariat (IRS) to monitor programme of the Project on behalf of the Indian Reha Committee (IRS) and the Project Partner was to submit six monthly annual reports to the IRS. The Funding Company was to remit the project funds regularly on a six monthly basis without undue delay but remittances of subsequent instalments was subject to the following conditions:-
"a. Proper receipts for earlier disbursements being received by TdH (G) I.P.
b. 6 Monthly un-audited statements of accounts being received
c. Yearly audited statement of accounts being received
d. copy of the FC-3 form filed with the Ministry of Home Affairs alongwith the enclosures being received by TdH (G) i.P.
e. Six monthly and annual report being received by IRS and recommendation of IRS to TdH (G) I.P. to disburse the subsequent instalment
f. In case of cancellation or termination of the project by the project partner, the remaining funds with the project partner will have to be returned to TdH (G) I.P. The other materials/assets with the project partner shall under the supervision of TdH (G) I.P. be transferred to a project with similar objectives.
g. In case of violation of this agreement TdH (G) I.P. has the right to stop payments in consultation with the Donor Agencies."
Smt. Anita was designated as Secretary. There is nowhere in the agreement that the Rashtriya Gramin Vidhyapith will continue with the Project in anticipation of the receipt of the fund. Moreover, as already mentioned above, the fund was to be released on observance of certain requirements and thus if there is violation of any part of the agreement, the dispute is of civil nature and, in my opinion, no criminal prosecution can continue for such breach and that too against the petitioners, who are not party to the said agreement.
Moreover, in the facts and circumstances aforementioned, this Court finds that no offence is made out in the entire complaint against these petitioners and if the criminal prosecution is allowed to continue with them it will not only be an abuse of the process of the Court but also it will be a gross miscarriage of justice against them. In the result, this miscellaneous application is allowed. The impugned order taking cognizance against these petitioners and the entire prosecution against them are quashed.