IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36393 of 2009 1. VIJAY SHANKAR, S/o Late Shiv Shankar Prasad, Project Director, National Highway Authority of India, PIU Araria, P.S. and District- Araria. 2. Sant Kumar Jha, S/o Late Maya Kant Jha, Manager Technical), National Highway Authority of India, PIU Araria, P.S. and District- Araria. 3. Manoj Kumar, S/o Maujihal, Technical Assistant, National Highway Authority of India, PIU Araria, P.S. and District- Araria. …… Petitioners Versus 1. STATE OF BIHAR 2. Navin Kumar, S/o Shivanand Singh, R/o Netajee market, Subhas Chowk, Forbisganj, P.S.-Forbisganj, District-Araria …………Opposite Parties. For the petitioners. : Mr. N.K.Ajarwal, Sr. Advocate Mr. Bidhu Ranjan, Advocate. Mr. Sunil Kumar, Advocate. For the State : Mr. Nawal Kishor Prasad, A.P.P. For the O.P. : Mr. Amar Nath Singh, Advocate Mr. K.K.Singh, Advocate. ----------- 6 01-07-2010 Heard learned counsel for the petitioners and learned counsel for the complainant (Opposite Party No. 2 herein). Petitioners are the officers of the National Highway Authority Of India (NHAI), (hereinafter referred to as “The Authority”). Petitioner No. 1 during the relevant time was functioning as the Project Director, NHAI, PIU, Araria. Likewise, Petitioner Nos. 2 and 3 were functioning as Manager (Technical) and Technical Assistant in the said office of the Authority. They are aggrieved by the order dated 21.07.2009 passed in Criminal Revision No. 66 Of 2009 by the District & Sessions Judge, Purnea. The aforesaid revision application was filed by the petitioners challenging the order taking cognizance dated 27-03- 2009 passed by the learned Judicial Magistrate, Ist Class, Araria in 2 Complaint Case NO. 3386(C) Of 2008. By the said order learned Magistrate, on a consideration of the materials adduced on behalf of the complainant in course of enquiry conducted under Section 202 Cr.P.C., has found that there is sufficient ground for proceeding against the accused persons for the offences punishable under Sections 420 and 418 of the penal code. A brief background of the case may first be stated: Complainant (O.P. No. 2) is owner of piece of land which is said to have contained residential premises. The land is located at Khata No. 137 Plot No. 51 measuring a total area of three and half decimals. According to the complainant, the aforesaid land together with other tract(s) of land standing in the name of his wife, were acquired by the Authority for widening of national highway. Such acquisitions are to be made in terms of the provisions contained under the National Highway Act, 1946, (for short „the Act‟). The allegation further is/was that the District Land Acquisition Officer, who initiated the acquisition proceeding on the requisition of the Authority, determined compensation on 13.09.2007 in terms of Section 3G of the Act. Petitioner No. 1 herein also made recommendation. Accordingly, a cheque for a sum of Rs. 2,58,366/- bearing Cheque No. 168983 dated 16-09-2008 was prepared, in relation to the land standing in the name of the complainant. Similarly a cheque for a sum of Rs. 3,47,677/- was prepared in the name of his wife. Complainant was called in to receive the compensation amount. He was made to sign documents relating to receipt of the cheque prepared in his name, but the cheque was not 3 handed over to him. In such circumstances, he put the petitioners herein on legal notice which was duly responded by the petitioners wherein a stand was taken that under the oral orders of the Petitioner No. 1(Project Director), the cheque was withheld and not made over to the complainant. On these facts, it was suspected that the accused petitioners had cheated the complainant and misappropriated the amount of the cheque(compensation amount awarded in favour of the complainant and his wife). During enquiry, four enquiry witnesses were examined. On a consideration of the materials placed before the court, it was found that there is sufficient ground for proceeding against the accused persons. Learned counsel for the petitioners while assailing the impugned orders, has taken a stand that the continuance of the present criminal proceeding, in the facts of the case, shall be sheer abuse of the process of the court. Referring to different provisions of the Act and the judicial orders passed on the proceeding instituted by the parties, it is contended that under the orders of the court, the payment now has already been made and the matter has been adjudicated upon by the learned arbitrator and the stand that the house located on the lands wherein it has been found that building/structure located on the land(s) acquired for widening of national highway was not capable of commercial use. It is stated that learned Arbitrator dealt with the matters in terms of Section 3-G(5) of the Act. Learned counsel for the complainant, on the other hand, states that at the stage of taking cognizance, learned Magistrate is only 4 required to look to the materials that have come on record in course of enquiry made under section 202 Cr.P.C. and on being satisfied that there is sufficient and/or prima facie materials available on record, the order taking cognizance has been passed which has been affirmed by the learned Revisional Court. It is next contended that the defence of the accused petitioners cannot be looked into at this stage. In his submission, the order taking cognizance duly approved and/or affirmed by the learned Revisional Courts needs no interference. I have heard both sides. It appears from the materials available on record that the land belonging to the complainant was acquired which contained dwelling house/structure. The award in the present case was passed by the District Land Acquisition Officer on 13- 09-2007. Section 3-G (5) & (7) of the Act prescribe fasciculus of provisions with regard to determination of amount payable as compensation. They read as under: Section 3-G(5) : “If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.” Section 3G(7) : “The competent authority or the arbitrator while determining the amount under sub-section(1) or sub-section(5) as the case may be, shall take into consideration- (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; 5 (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any incidental to such change.” It is the petitioners‟ case that the competent authority, was required to exercise the powers in terms of aforesaid two provisions of the Act. For the first time arbitrator was appointed on 6.10.2009. Thereafter matter remained pending before the said arbitrator. In the meanwhile the present proceeding was lodged challenging the continuance of the entire criminal proceeding including the order taking cognizance. The complainant (OP NO. 1) being aggrieved by non- disbursement of the amount of compensation so awarded in his favour approached this court by filing C.W.J.C.No. 1312/10 seeking a direction from this court upon the respondents including the officers of the N.H.A.I. for payment of the compensation amount as determined by the competent authority i.e. District Land Acquisition Officer. The said matter was disposed of by this court on 16-02-2010. Said order is on the record. Paragraph 5 and Paragraph 6 thereof read thus: Para 5:- “Having heard counsel for the petitioners, state and the National Highway Authority of India, I am of the view that the amount determined by the competent authority under section 3G(1) of the Act be paid to the petitioners by the competent authority but such payment shall be subject to the result of the arbitration proceeding invoked by the Project Director. While releasing payment in favour of the petitioners the competent authority shall call upon the petitioners to execute a bond undertaking thereunder to refund the excess amount, if any, in 6 terms of the amount determined by the arbitrator and for such purpose direct the petitioners to offer valuable surety to the satisfaction of the competent authority.” Para 6:- “While parting with this order in appreciation of the submission of the learned counsel for the petitioners that possession of the lands in-question having been taken over by the competent authority it was not open for the Project Director to have invoked the arbitration proceeding under Sub-Section(5) of Section 3G of the Act this writ petition is disposed of granting liberty to the petitioners to challenge the invoking of the arbitration clause by the Project Director as also appointment of the Additional Collector, Purnea as the arbitrator in the case.” Petitioners in terms of the aforesaid direction of this court made payment of the amount so determined by the District Land Acquisition Officer. Such payment was made subject to final determination of the issues by the competent authority in terms of provisions of the Act. It is to be noted here and now that this matter was taken up on 12.01.2010 when after hearing both the sides this court passed the following orders: 12.1.2010: “Counsel appearing on behalf of opposite parties takes a stand that as per Section 3(G) of the National Highways Act, 1956, they have filed an application before the arbitrator to fix the compensation amount. The amount of compensation fixed by the competent authority i.e. the Land Acquisition Officer is an excess of the actual value of the land acquired. This application has been filed at a belated stage after the opposite parties have appeared in this Court to contest this application for quashing the order of cognizance. In case no such application under Section 3(G) has been filed, the Court will think of suitable actions to be taken against the person who has sworn the affidavit in this case. The additional Collector, Purnea on appearance of the petitioner and the opposite parties will ensure that the matter gets settled within a period of one month. 7 Let the opposite parties and all those persons who are aggrieved by the National Highway Authority of India appear before the arbitrator i.e. the Additional Collector, Purnea within a fortnight. List this case after one month at the top of the list. In the mean time, no coercive action shall be taken against the petitioner. Counsel for the petitioner is permitted to deposit the cost of FAX for communicating this order to the Additional Collector, Purnea. The complainant initially did not appear before the learned arbitrator, who was in seisin of the matter. Ultimately, the authority had to resort to paper publication calling upon him to appear in the said proceeding. It is further to be noted here that the complainant filed a civil writ application being CWJC No. 3878 of 2010 challenging the appointment and jurisdiction of the arbitrator. The said matter stood dismissed on merit by a proceeding dated 29-03-2010. Not satisfied with the order of the learned Single Judge, the complainant has already preferred an appeal vide LPA No. 898/10, which is said to be pending consideration before this court. As per allegation contained in the complaint, the accuseds were said to have committed offence punishable under sections 409,420,467,468/34 of the penal code. As already noticed above, learned Magistrate on a consideration of the materials on record had decided to proceed only under section 420 and 418 of the penal code. From the facts noticed herein above, it would be apparent that the dispute between the parties relate to the commercial and/or residential nature of the building, which was found constructed on the land of the complainant. According to the complainant, the same was capable of 8 commercial use and as such the initial order determining the compensation passed by the learned District Land Acquisition Officer was not required to be interfered with and the complainant was bound to receive payment as determined by the said officer. On the other hand, the stand of the petitioners, who represent the Authority is that the amount of compensation so fixed by the District Land Acquisition Officer was excessive as the building was only a residential house and was not capable of commercial use. A copy of the final adjudication made by the arbitrator, has been handed in today wherefrom it appears that the learned arbitrator, on a consideration of the materials placed before him including a sale deed executed in the year 2005 by the wife of the complainant in favour of her husband (complainant), has come to the conclusion that the acquired building was capable of a domestic use only. Learned arbitrator has accordingly held that compensation fixed on the strength that the building had commercial use need to be altered and slashed down. Section 415 IPC defines cheating and Section 420 IPC provides punishment. Section 415 IPC reads as under: Sec. 415 IPC:- “Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or it likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Looking to the provisions, it is apparent that intention to 9 deceive any person fraudulently or dishonestly inducing the said person to deliver any property to the person is/are the ingredients of the offence. It is to be further borne in mind that such intention to deceive or to induce the person with dishonest intention must be found present from the very inception. Judgment of the Supreme Court rendered in the case of Vir Prakash Sharma Vs. Anil Kumar Agrawal & Another {2007(7) SCC 373} shall be opposite in the present case wherein it has held that non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating and or criminal breach of trust. On the facts of the case, it was found and held that intention to cheat the complainant from the very inception was altogether absent. In the case at hand it appears the petitioners acted in good faith and did not release the payment and invoked Section 3-G(5) of the Act. This court, at this stage, considers it apposite to deal with the objection of the learned counsel appearing on behalf of the complainant. There is no dispute that at the time of taking cognizance the learned Magistrate has to confine itself to the materials brought on record during the enquiry conducted in terms of the provisions of the Code. Section 482 of the code confers a wide jurisdiction on this court to see that the process of the court is not misutilised by any person or that any person is put to needless harassment. It has been held on numerous occasions by the Apex Court that criminal prosecution should not be an instrument of oppression and needless harassment to the accused who are sought to be tried. At this stage, judgment of the Supreme Court rendered in the 10 case of Bhajan Lal & Ors. Vs. State of Haryana, 1992 Supp.(1), SCC 335 may be noticed wherein the Apex Court has set out different situations/circumstances under which the court exercising power under section 482 must interfere and interdict the criminal prosecution. This court is also conscious of the fact that the complainant filed judicial proceeding seeking a direction for payment of the compensation amount so determined by the District Land Acquisition Officer. As noticed above, this court at the instance of the complainant, passed an order for payment of the said amount(cheque value) subject to the determination of the rival claims to be raised before the competent authority in terms of Section 3-G(5) of the Act. There is no dispute between the parties that subsequent to the aforesaid orders passed on the writ petition, the complainant has been paid the amount as determined by the District Land Acquisition Officer subject to final determination of the computation amount/award by the learned Arbitrator. On a consideration of rival submissions advanced on behalf of the parties in the light of the facts highlighted herein above, this court is satisfied that continuance of the present criminal proceeding shall be sheer abuse of the process of the court. The ends of justice warrant that this court should interfere and interdict such proceeding. Accordingly the application is allowed. Order dated 27-03- 2009 Passed by the Learned Judicial Magistrate, Ist Class, Araria in Complaint Case NO. 3386(C) Of 2008 as also the revisional order dated 21-07-2009 are quashed and set aside. Sujit (Kishore K.Mandal,J)