TMI Blog2021 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate or convert any property for his own use. On the facts stated above, Section 406 of the Indian Penal Code is also not applicable in this case. The Hon ble Supreme Court in the case of STATE OF HARYANA VERSUS BHAJAN LAL [ 1990 (11) TMI 386 - SUPREME COURT] of the said judgment has framed various categories of cases by way of illustration for exercise of the extraordinary power under Article 226 of the Constitution of India or the exercise of inherent powers under Section 482 of the Code of Criminal Procedure, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This case is a fit case and falls in Category (1) and (5) of the above guidelines laid down by the Hon ble Supreme Court for exercise of inherent powers under Section 482 of the Code of Criminal Procedure - Petition allowed. - Cr. M.P. No. 3035 of 2018 - - - Dated:- 2-9-2020 - Ananda Sen, J. Shri Ajit Kumar Sinha, Sr. Advocate, R. Sudhinder and Indrajit Sinha, Advocates, for the Petitioner. Shri Abhay Kumar Tiwari, A.P.P., Rajendra Krishna and Faiz-ur-Rahman, Advocates, for the Respondent. ORDER Petitioner, through this criminal miscellaneous petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL, Bhilai Steel Plant Project, where project was of ₹ 700 crore. The accused Company M/s. Thermax Limited made 4th agreement with the complainant for a water treatment project contract for SAIL/Bokaro Steel Plant, CRM Zone under Tender No. T C (M)/B 351/042 A/Skk/231, dated 18-3-2013. It has been alleged that in the year 2013, Income Tax Department conducted a survey on M/s. Thermax Limited at its Head Office at Mumbai Pune Road, Wakdewadi; Pune. All documents relating to the accused and complainant s company were also sent to Commissioner Central Excise, Pune for detail verification. It has been alleged that the petitioner was asked by the Commissioner, Central Excise, Pune-I about Thermax s business relation with the company of the complainant M/s. Kaizen Growth. It has been alleged that to the great surprise and shock of the complainant, the petitioner stated on oath that M/s. Thermax Limited does not hold any business relation with the company of the complainant M/s. Kaizen Growth and has not received any services from M/s. Kaizen Growth. It has been alleged that this false and fraudulent statement made by the petitioner came as a turning point in the long business rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL, Bokaro Steel Plant recently for a contract in RMPH Zone of SAIL, Bokaro Steel Plant, but the complainant s company was refused by M/s. Thermax Limited in spite of their commitments to work together for any SAIL projects in future. It has been alleged that the complainant represented/requested the petitioner through registered letter and reminded their old relation for all SAIL projects, but the petitioner has not responded the same. It has been alleged that the complainant also approached the local officials of M/s. Thermax Limited at Bokaro, Project Manager Mr. Manoj Jha on 3-7-2019, but of no result as he did not want even to talk to the complainant on mobile in spite of their 10 years deep business relation with M/s. Thermax Limited. It has been alleged that due to the above activities of the accused company, the marketing reputation of the complainant and his company suffered a huge loss by losing their best business and reputation in National and International arena since then. It has been alleged that due to false and fraudulent acts of the petitioner, turn-over of the complainant s company came down drastically from ₹ 1 crore to NIL, because he lost all clients and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal intention. He submits that if there was any act (without admitting the same), which attracts an offence, it can at best be of saving of Cenvat by giving false statement, for which the petitioner company has already been penalized by the Revenue Authorities. By no stretch of imagination, the same can attract any offence under the Indian Penal Code. He submits that the claim of the complainant that his company suffered defamation, which ruined his prestige and dignity, cannot be a subject matter of criminal proceeding under Sections 406, 420 of the Indian Penal Code. He submits that even the statement made in paragraph 28 of the complaint petition to the effect that some officers of M/s. Thermax Limited (company of the petitioner) had taken ₹ 10,00,000/- on refundable basis, but, did not refund the same, cannot also be a subject matter of the criminal case. He lastly submits that in utter violation of the provisions of Section 154(1) and Section 154(3) of the Code of Criminal Procedure, the Court, without applying its mind, has exercised jurisdiction under Section 156(3) of the Code of Criminal Procedure and directed the police to register a First Information Report. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of the petitioner s company. 7. The facts, which are narrated above, are derived from the complaint itself. These facts, by no stretch of imagination, attract the offences punishable under Sections 420 or 406 of the Indian Penal Code. 8. Section 420 of the Indian Penal Code is punishment for cheating, which reads as under :- 420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. To attract an offence under Section 420 of the Indian Penal Code, the following requirements must be present :- (i) Cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 wilfully suffers any other person so to do, commits criminal breach of trust . 11. From the facts narrated above, which is there in the complaint petition, I find that the petitioner was not entrusted with any property by the complainant nor did he dishonestly misappropriate or convert any property for his own use. On the facts stated above, Section 406 of the Indian Penal Code is also not applicable in this case. 12. These are the only two sections under which the first information report has been registered. Since there are no ingredients of Sections 406 and 420 of the Indian Penal Code, registering of first information report is absolutely bad. 13. Furthermore, the remedy available under Section 156(3) of the Code of Criminal Procedure is not routine in nature. It requires application of mind and a speaking order to be passed. The Hon ble Supreme Court in the case of Priyanka Srivastava Another v. The State of Uttar Pradesh Others reported in (2015) 6 SCC 287, has dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. 14. This judgment in Priyanka Srivastava (supra) of the Hon ble Supreme Court has been followed subsequently in Vikram Johar v. State of Uttar Pradesh Another reported in (2019) SCC Online SC 609. Thus, I find that the order by which the Court had referred the complaint under Section 156(3) of the Code of Criminal Procedure is a non-speaking one and the complaint itself does not comply with the pre-conditions as set forth in the aforesaid judgment, which is necessary for sending the complaint under Section 156(3) of the Code of Criminal Procedure. 15. Considering the aforesaid fact and position of law, order by which complaint was sent under Section 156(3) of the Code of Criminal Procedure is absolutely bad. 16. The Hon ble Supreme Court in the case of State of Haryana Others v. Bhajan Lal Others reported in (1992) Supp (1) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide 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. 17. Thus, based on the discussions as above, in the light of the guidelines laid down by the Hon ble Supreme Court in the case of Bhajan Lal (supra), I find that this case is a fit case and falls in Category (1) and (5) of the above guidelines laid down by the Hon ble Supreme Court for exercise of inherent powers under Section 482 of the Code of Criminal Procedure. Accordingly, I am inclined to allow this criminal miscellaneous petition. The entire criminal proceeding in Sector 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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