AKHIL RAJBONGSHI and 3 ORS. vs RISHIKESH ATAL and ANR.

1.Heard Mr. K. K. Deka, learned counsel for the petitioners and Mr. J.C. Gaur, learned counsel for the respondent No.1. Also heard Mr. B. Gogoi,

learned Addl. Public Prosecutor, appearing for the State-respondent No.2.

By this petition under Section 482 Cr.P.C, the petitioners, namely, Sri. Akhil Rajbonshi, Sri. Amit Kumar Seal, Sri. Mehedi Hassan Prodhani and Sri.

Prandeep Deka have prayed for quashing of the criminal proceeding arising out of Complaint Case No. 105 of 2017, under Section 406/420/34 IPC

pending before the Court of Ld. Judicial Magistrate, First Class, Jorhat, Assam.

The accused/petitioners’ case, in a nutshell, is that they are technocrats/students of Jorhat Engineering College, Jorhat, Assam and they have

enrolled themselves in the Industry Institute Interaction cell of Jorhat Engineering College. The petitioners have contended that they entered into an

agreement on 09.12.2015 with Living Technologies, Uttarkal, Anusandhan, Human Technologies/Santiniketan, represented by the respondent No.2,

namely, Rishikesh Atal, being one of the proprietors of M/S Living Technologies to develop a mobile application, web application, web site on online/

Live e commerce/ shopping bazaar etc.

The accused/petitioners have stated that the respondent No.2 filed a complaint case in the Court of Learned Chief Judicial Magistrate, Jorhat, being

C.R. Case No. 105/2017, on 08.08.2017, which was made over to the Court of Learned Judicial Magistrate, First Class, Jorhat for trial, alleging

commission of offences punishable under Sections 420/406/34 IPC against them. Accordingly, the learned Magistrate by Order dated 09.08.2017 took

cognizance of the offences and issued process for their appearance. According to the complainant/respondent No.1, the accused/petitioners produced

fake certificates purportedly issued by Mr. Dignata Baishya and Mr. Rupam Baruah, Co-ordinators/ Assistant Professors of the project and knowingly

made false representations of their expertise and thereby induced the complainant to part with his hard earned money.

Mr. Deka, learned counsel for the petitioners submits that the complaint petition, dated 08.08.2017, does not disclose any offence, under Sections

406/420/34 IPC and as such, the complaint case is liable to be quashed and set aside. Mr. Deka further submits that Clause 29 of the agreement,

dated 09.12.2015, provided that any dispute or difference arising between the parties to the agreement, regarding the meaning or contexts or effect of

any clause or terms of the agreement shall be settled by arbitration.

Per contra, Mr. J. C. Gaur, learned counsel for the respondent No.1/complainant submits that the complaint case does not relate to mere non-

implementation of terms of the agreement requiring those to be referred to arbitration, but of criminal liability satisfying the ingredients of the offences

complained of and as such, the case is not liable to be set aside and quashed.

Mr. Gogoi, learned Additional Public Prosecutor, submits that the contentions made in the complaint do reveal commission of the alleged offences,

by intentionally doing the acts of forgery, misrepresentation of facts and breach of trust by the accused/petitioners exposing them to criminal liability

and therefore, the case cannot be set aside and quashed invoking the inherent jurisdiction of the High Court under Section 482 Cr.P.C.

In the leading case of State V. Bhajan Lal, reported in 1992 Supp (1) 335, the apex Court indicated the illustrative categories, which call for

exercise of inherent power, under Section 482 Cr.P.C. These are:-

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Sec. 156 (1) of the Code except under an order of a Magistrate within the purview of Sec. 155. (2)

of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal Proceeding is

instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the Act concerned, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.“

In the light of the above judgment of the apex Court, it is seen that it is the duty of the Court to see whether there exists any prima facie material to

show that grave injustice will be caused if the allegations made in the form of FIR/complaint petition are not quashed. In the instant case, it is not the

case of the respondent No.1/complainant that the allegations made against the accused/petitioners fall within the terms of the agreement entered into

between the parties, but of prima facie criminal breach of trust and cheating, for which law provides penalty. The allegations made in the complaint

petition, even if they are taken at their face value and accepted in their entirety do prima facie constitute offences committed by the

accused/petitioners.

Resultantly, the petition stands dismissed.

Be that as it may, the learned Court below shall not be influenced by any observation made by this Court in course of this order.