SATYENDRA KUMAR vs THE STATE OF BIHAR & ANR.

Heard learned counsel for the petitioner and learned counsel for the State.

Petitioner seeks quashing of order dated 25.02.2011 passed by the Judicial Magistrate, 1st Class, Bhagalpur in Kahalgaon P.S.Case No. 388 of

2004 thereby petition filed under Section 239 of Cr.P.C. by the petitioner-accused was rejected.

The brief facts giving rise to the case is that initially acomplaint was filed by the O.P. No. 2/complainant levelling allegation that he entered into an

agreement with the petitioner, a registered contractor with N.T.P.C. in the year 1994, to do works of the N.T.P.S. project. A written agreement was

signed by both on 18.08.1994; moreover, authorities of the N.T.P.C., other accused persons, also allowed in writing to do extra job by the complainant

on behalf of the petitioner. In completing the work assigned to the complainant, he incurred expenses of Rs. 4,04,450/- including making payment to

the labourers engaged in completing the project. However, some additional work was also assigned to him by the officials of the N.T.P.C. and the

same was completed by the complainant and submitted bill of Rs. 2,67,714/- but the payment was not made despite notice sent to the accused

persons. So all accused persons entering into conspiracy defaulcated the money of the complainant.

Learned counsel for the petitioner submits that theentire allegation, as stated in the complaint, even if taken into entirety, it does not constitute prima

facie offence of cheating or breach of trust rather fact of the case discloses at best dispute exclusively of civil nature, the criminal case is filed only in

order to put pressure to the petitioner to yield to the pressure.

Learned counsel for the petitioner also draws attentionto Annexure-5 of the application by which on different occasions payment was made to the

complainant. It is contended that in order to constitute offence of cheating, the element of inducement and deception by practicing dishonest and

fraudulent method, at the inception of the agreement, is lacking in the present case. In support of his submission, he places reliance on two decisions of

the Apex Court, (1) Indian Oil Corpn. v. NEPC India Ltd. And Ors. reported in (2006) 6 SCC 736 and (2) Y.V.Jose and Anr. v. State of Gujarat &

Anr. reported in (2009) 3 SCC 78. However, it is pointed out that as per allegation the agreement was done in the year 1994 and complaint is filed

after a decade in the year 2004.

Learned counsel for the State submits that prima facie offence is made out against the petitioner and earlier cognizance too has been taken against

him.

Having considered the rival submissions and onperusal of record, the Court finds that there was a contractual agreement between the petitioner and

the complainant; as per the agreement, the complainant was to do work assigned to him by the petitioner. It appears that petitioner was given contract

by the N.T.P.C. for fabrication, erection and alignment of structural work and the complainant was engaged by the petitioner, as subcontractor, to

perform some works. Annexure-6 series show payments made by the petitioner from time to time to the complainant.

In order to constitute offence of cheating, the first andforemost ingredients to be shown by the complainant is that the petitioner has had any

fraudulent or dishonest intention at the time of inception of agreement making fake promise or representation. In the case of Y.V.Jose (surpa), the

Apex Court held that in absence of a culpable intention at the time of making initial promise, being absent, no offence under Section 420 of the Penal

Code is made out. However, in the said case, the Apex Court also elaborates that there are two types of cases of cheating, first, complainant is

induced fraudulently or dishonestly and second, by reason of such deception, the complainant has not done or omitted to do anything which he would

not do or omit to do if he was not deceived or induced to do and there is distinction between mere breach of contract and the offence of cheating.

Mere breach of trust is defined in Section 405 of I.P.C., which reads as follows:

“405.- Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly

misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing

the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust,

or willfully suffers any other person so to do, commits “criminal breach of trustâ€​.

From reading of the aforesaid section, it isexplicit that in order to constitute offence of breach of trust, following ingredients are to be found; first, a

person should have been entrusted with property or entrusted with dominion over the property, second, that person dishonestly misappropriated or

converted to his own use that property or dishonestly used or dispossessed of that property, third, such misappropriation , conversion, used or

dispossessed should be in violation of any direction of law prescribing mode in which such trust is to be discharged or of any legal contract under

which the work was done.

In the present case, there is no entrustment ofany property to the petitioner by the complainant, so question of any misappropriation without

entrustment of property does not arise. The agreement between two is also not on record and no condition is mentioned in the complaint regarding

mode and manner of time by the petitioner. So in view of the backdrop of the aforesaid fact, the Court finds that the allegation in the complaint is

devoid of any ingredients of cheating and breach of trust though may be a case of breach of agreement, exclusively a dispute of civil nature.

Moreover, a civil remedy also exists to the complainant as the dispute may be resolved in the civil side. So having reached to the conclusion that prima

facie no ingredients of offence of cheating and breach of trust is made out against the petitioner even after taking all facts stated in the complaint in

entirety, hence, continuation of criminal proceeding in the matter would be abuse of the process of the court.

So, the impugned order dated 25.02.2011 as well as criminal proceedings in respect of the petitioner only is hereby set aside.

The application stands allowed.