IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41852 of 2006 MR.S.MOHAN & ANR Versus STATE OF BIHAR & ANR ----------- 11 9.5.2008 This application under section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 18.5.2002 passed by Shri S.C. Pradhan, Judicial Magistrate, 1st Class, Begusarai in Complaint Case no. 262C of 2002 (T.R.no. 1043 of 2002), whereby and whereunder he has taken cognizance of the offences punishable under sections 406, 467, 420 and 120B of the Indian Penal Code against the petitioners and other accused persons. The case of the complainant Bhola Singh/opposite party no.2, in short, is that accused nos. 1 to 4 had set up M/s Dhinu Engineering Firm in the year 1976 of which accused no.1 Gopal Singh became proprietor. Accused no.2 Geeta Devi wife of Gopal Singh became a nominee of accused no.1 in the bank and the firm was constituted in the name of accused no.3 Dhananjay Singh. It is said that whatever money was earned from the firm used to be - 2 - deposited by accused no.1 with his father Shiv Shankar Singh (accused no.4). The work of M/s Dhinu Engineering commenced with Bokaro Steel City and later on continued at Orissa and work of contractor started in Barauni IOC with L & T Co. from 2000.The complainant/opposite party no. 2 began to work as partner of accused no.1 Gopal Singh and accused no.1 Gopal Singh on 2.8.2000 executed a certificate in writing to the effect that whatever income would be earned from the work of contractor, accused no.1 shall take 10% and the complainant shall keep 90% of the said earning. Later on a partnership deed was executed on 5.4.2001 between the accused no.1, complainant/opposite party no.2 and Rajiv Kumar Singh whereby the share of accused no.1 was reduced to 5% of the total income. Accused no.1 being the proprietor of M/s Dhinu Engineering informed the Project Manager of M/s Larsen & Toubro Co., Barauni on 27.12.2001 that opposite party no.2/complainant has been authorized by him to take all goods from the store and receive the entire payment. On 28.12.2001 the accused no.1 again wrote a letter to Project Manager, L & T. Co. asking for - 3 - final payment on completion of work. On 24.12.2000 accused no.1 had given an authority letter to the Project Manager, L.& T. Co. informing that it was complainant who was authorized to accept all cheques, drafts etc. on behalf of M/s Dhinu Engineering. Now the complainant says that on 9.12.2001 he received a cheque of Rs. 65,000/- from Larsen & Toubro Co. and deposited the same in the account of M/s Dhinu Engineering at Central Bank, Begusarai but the accused with the help of his men silently, fraudulently and dishonestly withdrew the said amount though he was entitled for 10% only. He further says that on 20.2.2002 accused no.1 Gopal Singh with mala fide intention silently took cheque of Rs. 2,66,000/-from Larsen & Toubro Co. and deposited the same in the account of M/s Dhinu Engineering at Kapasia State Bank and fraudulently and dishonestly withdrew all the money whereas he had a share of only 10%. Final balance of Rs. 2 lacs of M/s Dhinu Engineering is still lying with Larsen & Toubro Co. and accused no.1 is contemplating to withdraw the said amount also and he has already filed an application to the head office of - 4 - Larsen & Toubro co. for keeping the said sum of money. It is alleged that the petitioners were employees of Larsen & Toubro Co. and are involved in the fraudulent act of fraud and cheating. It appears that the complainant was examined on solemn affirmation and during inquiry under section 202 of the Code four witnesses were examined and the learned Magistrate after being satisfied that the prima facie case under sections 406, 467, 420 and 120B IPC has been made out, ordered to issue summons against the petitioners and other accused persons. The two petitioners are the employees of Larsen & Toubro co. Learned counsel appearing on behalf of the petitioners argued that from the petition of complaint it is clear that the work order had been given by Larsen & Toubro co. in favour of M/s Dhiru Engineering works of which accused no.1 Gopal Singh was the proprietor. He further argued that it is also not denied by opposite party no.2 that the payments were made by Larsen & Toubro Co.in favour of M/s Dhiru Engineering Co. through - 5 - account payee cheques. The private financial agreement between the complainant/opposite party no.2 and accused no. 1 is within the knowledge of the said two persons and Larsen & Toubro co. or its employees cannot be held liable for any violation of such financial agreement. He pointed out that the cheques issued by Larsen & Toubro co. were duly encashed by M/s Dhiru Engineering Works and subsequent alleged fraudulent withdrawal by accused no.1, if any, cannot make the employees of Larsen & Toubro liable for commission of any offence. He also argued that on the basis of allegations no case under sections 406, 420, 467 and 120B IPC is made out against the petitioners. It is the case of the complainant that the firm M/s Dhiru Engineering was set up in the year 1976 of which accused no.1 Gopal singh became the proprietor. The fraudulent representation, if any, was made by accused no.1 Gopal Singh to the complainant. There is no allegation which would show that the petitioners had any hand in the agreement which was reached between the complainant and accused no.1 relating to the sharing of the income. Then as - 6 - per the allegation made in the complaint petition, the complainant himself had received the cheque on 9.12.2001. The cheque issued by Larsen & Toubro co. was not a bearer cheque rather the same was an account payee cheque and could be encashed only through the bank account of M/s Dhiru Engineering Co. Thus the handing over of the cheque to accused no.1 did not in any way profit him with any extra benefit and the complainant/opposite party no.2 cannot say that he has suffered any prejudice due to handing over of cheque. Even if the entire complainant’s case is accepted in its entirety even then so far petitioners are concerned, mere handing over of account payee cheque to accused no.1 cannot amount to any offence nor does it show any criminal conspiracy to cheat the complainant. The private financial agreement between the complainant and accused no.1 is binding between the two only and the employees of Larsen & Toubro cannot be held liable for any violation of such financial agreement. Thus on the basis of allegations no offence under sections 406, 420, 468 and 120B IPC is made out against the petitioners. Such being the position - 7 - the continuance of the present proceeding against the petitioners would amount to abuse of the process of the court. This revision is accordingly, allowed and the impunged order of cognizance against the petitioners is hereby quashed. AI (M.Saran, J)