Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.34486 of 2011 ====================================================== 1. Swapan Ganguli Son of Late Sushil Ganguli, Managing Director Swanina International Private Limited, Registered Office- 77/12, Lenin Sarani, District- Calcutta 2. A. Das Gupta @ Alok Das Gupta Son of Late Nani Gopal Das Gupta, Authorised Representative Swanina International Private Limited, Registered Office- 77/3, Lenin Sarani, District- Calcutta. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Mukesh Kumar Son Of Late Suresh Prasad Singh, Resident of Keshwe, P.S.- Barauni(O.P. Refinary), District- Begusarai. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. D. Choudhary & Mr. P.K.Sinha, Advs. For the Opposite Party/s : Mr. Arun Kr. Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 05-10-2012 Heard learned counsel for the petitioners and learned counsel for the State. 2. In this case, petitioners are challenging the order dated 26th April 2011 passed by learned Judicial Magistrate 1st class, Begusarai in Complaint Case No. 3173(C) of 2010 whereby the court below has taken cognizance for offences under [STATUTE] . 3. The written complaint dated 28.12.2010 was filed by the complainant, namely, Mukesh Kumar alleging therein that the petitioner Nos. 1 and 2 approached and requested him for support in completion of contract has been given by M/s Indian Patna High Court Cr.Misc. No.34486 of 2011 (4) dt.05-10-2012 2 / 5 2 Oil Corporation Limited, Barauni Refinery vide work order No. 23070230/13 dated 4/5-1-2010 and also asked the opposite party to work as sub-contractor under them in execution of work contract. It has been averred that an agreement was executed on 22.4.2010 in between the complainant and representative of ‘SIPL’ and the payments were made to the complainant. It has been alleged in the complaint petition that he had performed the substantial work and there is outstanding dues about 17 lacs against the establishment of petitioners. It has been alleged, the complainant continued to work upto September 2010, payment of Rs. 20,32,597/- were made to the complainant but there was/is outstanding dues for the work, he had performed during the period 22nd April to 30th September. It has been alleged that always the assurance was given by the accused petitioners for the payment but when the complainant did not receive the aforesaid amount, he was compelled to give notice dated 15.10.2010 to the Managing Director whereupon these petitioners came to his residence and assured payment of outstanding dues. It has been claimed that the petitioners have played a fraud as did not pay outstanding dues of Rs.17,07,430/- and thereby the petitioners have misappropriated the aforesaid amount. It has also been alleged that accused petitioners have not only misappropriated the money but also Patna High Court Cr.Misc. No.34486 of 2011 (4) dt.05-10-2012 3 / 5 3 changed the sub-contractor to execute the work which has been allotted by the Indian Oil Company. On the basis of statement made by the complainant in S.A. and the statement of witnesses, the court below took cognizance for offence under [STATUTE] . 4. The counsel for the petitioners submits that the present case is out and out a civil dispute as continuation of proceeding will be an abuse of process of the Court. 5. On perusal of the agreement (Annexure-2) attached with this petition it appears that an agreement was executed in between Shamim Iqwal, representative of SIPL and opposite party No. 2 stipulating the terms of contract in between the Company and the complainant. In the present complaint petition, the Managing Director of the Company as well as authorized Representative has been made accused. It is well known principle of law that the Company is a statutory body having its own separate and distinct jurisdical status and is distinct and different person to its employees. It is well known principle of law, the Company may sue or may be sued by others, so much so that the nature of the allegation that has been made in the complaint petition primarily the dispute arose in the course of business transaction between parties. When differences arose, the Company Patna High Court Cr.Misc. No.34486 of 2011 (4) dt.05-10-2012 4 / 5 4 changed its sub-contractor which led to filing of the present complaint case. The counsel for the petitioners submits that as per the accounts of Company, money has already been paid and no further payment is to be made to opposite party No. 2, as they paid the entire amount whereas the opposite party No. 2 has claimed that he has not been paid outstanding dues of rupees 17 lakhs and odd by the petitioners. 6. It is basically a matter of civil nature as per the judgment of Hon’ble Supreme Court, reported in 2006 (6) SCC 736 where the Hon’ble Court had held that if the facts mentioned in the complaint petition taken to its entirety, do not constitute an offence in that circumstance, the continuation of the proceeding will be an abuse of the process of the Court. As stated-herein- above, the present proceeding completely arose due to business transaction between the opposite party No. 2 and the Company. 7. Having considered the rival contention of the party and in view of the aforesaid judgment, this Court finds that the continuation of the proceeding will be an abuse of the process of the Court. 8. Accordingly, the order of cognizance dated 26th April 2011 passed in Complaint Case No. 3173(C)/2010 is quashed and this petition is allowed. However, liberty is given to Patna High Court Cr.Misc. No.34486 of 2011 (4) dt.05-10-2012 5 / 5 5 the opposite party No. 2 if so advised, he can approach the court of competent jurisdiction for realization of the outstanding dues. Mahesh/- (Shivaji Pandey, J)

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. 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.