Ravindra Singh vs State of Jharkhand And Ors

Hearing of this Anticipatory Bail Application has been convened and conducted through Video-Conferencing.

The petitioner who is the Proprietor of M/s Om Gayatri Engineering is apprehending his arrest in connection with Mandu (Kujju) P.S. Case No. 154 of 2019 which has been instituted at the instance of O.P. No. 2 on an allegation that he has dishonestly misappropriated Rs. 57,68,439/- which was given to him through cheque and cash for various purposes in connection to execution of a work awarded to M/s Om Gayatri Engineering by M/s Tata Projects Ltd.

The anticipatory bail petition filed by the petitioner vide A.B.P. No. 597 of 2019 has been dismissed by the Additional Sessions Judge-IV, Ramgarh vide order dated 22.11.2019 observing thus:

"On perusal of the case record as well as case diary, I find that there is serious allegation against the petitioner of cheating the informant and also committing criminal breach of trust. The police has also found a prima-facie case u/s 341/323/419/420/406 true against the petitioner on the basis of investigation, though the investigation is still going on. Having considered upon the nature of offence as well as initial stage of the case, I do not find just and proper to grant anticipatory bail to the petitioner. Therefore, prayer for anticipatory bail of petitioner Ravindra Singh is rejected."

By an order dated 29.01.2020, a coordinate Bench of this Court has granted an interim order of anticipatory bail to the petitioner.

On 19.05.2020 this matter was listed before me for hearing by the order of Hon'ble the Chief Justice and on that day at the request of Mr. M.S. Mittal, the learned Senior counsel for O.P. No. 2 the matter was adjourned for today for enabling O.P. No. 2 to file counter-affidavit in the matter.

Md. Jalisur Rahman, the learned counsel for the petitioner submits that: (i) a simple loan transaction has been given colour of a criminal case, (ii) the various developments and transactions between the parties would reveal that the dispute between the parties is of a civil nature, and (iii) the post-bail conduct of the petitioner strengthens his claim for grant of anticipatory bail.

In the written report which was given to the police on 09.08.2019 on the basis of which a First Information Report was lodged on 10.08.2019, O.P. No. 2 has stated that the petitioner was previously known to him. In the year 2018 he approached him for money for completing the project, namely, C.B.M. Project of Tata Projects Ltd. whereupon he has given him Rs. 11,82,725/-; the money was transferred to the petitioner's firm M/s Om Gayatri Engineering in its bank account with IDBI bank. Subsequently, he has given Rs. 40,11,578/- to the petitioner on account of various expenses for completion of C.B.M. Project and in addition to that he has also given Rs. 5,74,136/- in cash, totaling Rs. 57,68,439/-. O.P. No. 2 has alleged that when he demanded return of his money the petitioner became evasive, however, subsequently he agreed to return Rs. 47,37,000/-for which he had issued four cheques, one each for Rs. 12,00,000/-and Rs. 15,00,000/- and two cheques for Rs. 10,00,000/- each. But, thereafter the petitioner started making allegation against O.P. No. 2 that he has stolen those cheques and intends to misuse those cheques. In these circumstances, O.P. No. 2 was compelled to make a complaint to the police and finally the petitioner agreed to pay Rs. 48,50,000/-for which he has again issued four cheques in favour of M/s Durga Shakti Construction Pvt. Ltd. of which O.P. No. 2 is the Director. The petitioner has also written letter dated 10.06.2019 to the Project Manager of Tata Projects Ltd. requesting him to transfer the amount payable to M/s Om Gayatri Engineering in the account of M/s Durga Shakti Construction Pvt. Ltd. and an agreement on non-judicial stamp paper of Rs. 500/- was executed in presence of Notary Public, however, the petitioner again backed out and started making various allegations against O.P. No. 2.

Mr. M. S. Mittal, the learned Senior counsel for O.P. No. 2 has referred to various paragraphs of the counter-affidavit filed on behalf of O.P. No. 2, which in substance is reiteration of the written report given to the police. The learned Senior counsel has also referred to letter dated 10.06.2019 written by the petitioner to the Project Manager, Tata Projects Ltd. which is at page-64 of the counter-affidavit. And finally, referring to various transactions by O.P. No. 2 copies of which are annexed with the counter-affidavit, the learned Senior counsel contends that payment of Rs. 57,68,439/- by O.P. No. 2 to the petitioner is a matter of record for which the petitioner cannot deny his liability but he has failed to honour his commitment and committed breach of the agreement by not returning the money due to O.P. No. 2 and hence committed the offence of cheating and criminal breach of trust.

Having considered the rival arguments and examining the materials on record, I am of the opinion that the petitioner has made out a case for making the interim order dated 29.01.2020 absolute. But before I proceed to deal with the rival contentions, it may not be out of the context to say that the cases like the present one in which voluminous records - mostly bank transactions - are brought on record create a peculiar situation for the courts. The dilemma is; what to write about those documents or to write nothing at all. Or, a prima-facie view? Either way it is a highly unsatisfactory choice for a Judge. Still, I shall endeavor to deal with this situation in the best light possible.

In the first place, there is no allegation of the petitioner misusing the interim order dated 29.01.2020. O.P. No. 2 has not complained that the petitioner has threatened him or any witness or tried to tamper with the evidence. Therefore, the post-bail conduct of the petitioner is a relevant fact in this case.

As held in "Gurbaksh Singh Sibbia vs. State of Punjab" reported in (1980) 2 SCC 565, the provisions under section 438 Cr.P.C has to be read in the context of Article 21 of the Constitution of India and by now it is well-settled that section 438 Cr.P.C which was introduced for the first time in the Code of Criminal Proceeding, 1973 is intended to save an accused from unnecessary harassment and humiliation, but at the same time the Court is required to examine the materials on record to find out whether the criminal proceeding has been launched with an oblique motive or it has a valid ground in law.

In "Siddharam Satlingappa Mhetre vs. State of Maharashtra" reported in (2011) 1 SCC 694, the Hon'ble Supreme Court has observed thus:

"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour."

In the counter-affidavit, O.P. No. 2 has averred as under:

"7. That the answering Opposite Party No. 2/Grish Chandra Pandey is the Director of M/s Durga Shakti Construction Pvt. Ltd. whereas the Petitioner/Ravindra Singh is Proprietor of M/s Om Gayatri Engineering. Both of them known to each other since 2012. The accused Ravindra Singh told him that his firm Om Gayatri Engineering got the tender of Tata Company under CBM Project but he did not not sufficient amount to complete the work and as such the accused requested the Opposite Party No. 2 to complete the work through the informant's firm, namely, Durga Shakti Construction Pvt. Ltd. The accused and informant agreed to divide the profit in equal shares. The informant provided a total sum of Rs. 57,68,439/-out of which a sum of Rs. 5,74,136/- was provided by way of cash for various miscellaneous expenses for execution of the contract and a sum of Rs. 51,94,303/- was spent on behalf of the petitioner's company for execution of the contract through bank transactions. Out of Rs. 51,94,303/- a sum of Rs. 11,82,725/- was transferred through RTGS to the petitioner's bank account in IDBI Bank (A/c No. 23102000016506).

A glance at the stand taken by O.P. No. 2 in paragraph no. 7 of the counter-affidavit would reveal that both parties were known to each other. The case set-up by O.P. No. 2 is that the petitioner approached him and requested him to complete the work through his firm, namely, M/s Durga Shakti Construction Pvt. Ltd. This fact is amply corroborated from the documents produced in the present proceeding by O.P. No. 2 himself. The various transactions records of which have been produced by O.P. No. 2 would disclose that he has paid travelling expenses of Rail and Air, cash to several persons, salary to the employees and borne various other expenses which were related to completion of the work which was awarded to the petitioner. Now a pertinent question which arises is, if O.P. No. 2 is not directly involved in completion of C.B.M. Project how he could know the name of so many persons engaged in the project and has paid various expenses including salary to the employees employed in the project. One may say that at the instance of the petitioner payments were made by O.P. No. 2, but the long period over which O.P. No. 2 has continued to bear the expenses stares at his face. At this stage it is also not known who has employed those persons - the petitioner or O.P. No. 2 or both - and true facts can be gathered only after the investigation. On his own account which is also reflected in his counter-affidavit, a complaint with the police was lodged after the negotiations did not succeed. Prima-facie, the allegations against the petitioner do not fall under any category of cases described under section 415 of the Indian Penal Code and at this stage it is best to avoid commenting on the allegations pertaining to other offences as the investigation is still continuing. In "Hridaya Ranjan Prasad Verma vs. State of Bihar" reported in (2000) 4 SCC 168", the Hon'ble Supreme Court has observed as under:

"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

In my opinion, the subsequent developments, such as, the petitioner tendering cheques, executing an agreement or writing letter to the Project Manager of M/s Tata Projects Ltd. are all in the chain of events which have taken place after differences arose between both the parties over sharing of profit and accounts. From the written report given by O.P. No. 2 also it transpires that it was an agreement between both the parties that they would share the profits earned from the project. The subsequent developments; talk of compromise, notice by the petitioner and cheque bouncing cases filed by O.P. No. 2 at Nainital, give an impression that both the parties have indulged in making allegations against each other. In so far as the agreement dated 07.06.2019 executed by the petitioner and the breach thereof are concerned, it needs to be recorded that every breach of an agreement would not entail criminal consequences and it is not that every breach of an agreement would amount to cheating or criminal misappropriation; refer, "Hridaya Ranjan Prasad Verma (supra). The petitioner has alleged that under pressure of the police he was compelled to execute the agreement dated 07.06.2019 and he has produced photographs of both the parties sitting with the Officer-in-Charge of Mandu (Kujju) P.S., but these photographs are not denied by O.P. No. 2. Before registration of the First Information Report, intervention of the Officer-in-Charge in the dispute between the parties is another important aspect of the matter which cannot be lost sight of. The materials brought on record give an impression that the dispute between the parties is primarily of a civil nature and unless the investigation is complete and all the materials are collected it is difficult to form a contrary opinion, if at all.

In the above facts, without expressing any opinion on the merits of the case, I find sufficient reasons to confirm the interim order dated 29.01.2020.

Ordered accordingly.

The interim order dated 29.01.2020 is confirmed with the following conditions:

(i) the petitioner shall disclose his present place of residence, provide proof of his present residence and mobile number to the investigating officer and he shall not change his place of present residence without prior intimation to the investigation officer,

(ii) he shall appear before the investigating officer for his examination as and when required by him, and

(iii) he shall abide by all the directives of the Government of India as well as the Government of Jharkhand for containing spread of COVID-19, till in force.

In the event of breach of any of the conditions committed by the petitioner the trial court shall initiate appropriate proceeding against him and may cancel the anticipatory bail granted by this Court [ refer, "P.K.Shaji vs. State of Kerala" reported in (2005) 13 SCC 283].

A.B.A. No. 8813 of 2019 is allowed, in the above terms, but with a foot-note: the observations in this order are tentative and made only for the purpose of the present application.