HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.10429 of 2013 Date: 15-7-2014 Between Krishnakumar Sennar and another … Petitioners/ Accused 1 and 2 and Andam Bapu Reddy … Respondent/
De facto Complainant
State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad, Through SHO, Utnoor PS, Adilabad District … Respondent HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.10429 of 2013 Order:
The two petitioners seek for the quashment of First Information Report (FIR) in Crime No.94 of 2013 on the file of Utnoor Police Station, Adilabad District, which was registered for the offences under Sections 420, 468 and 471 IPC upon a complaint filed by the 1st respondent with the Court of the Judicial Magistrate of First Class, Utnoor when the same was made over to Police by the learned Judicial Magistrate of First Class, Utnoor under Section 156(3) Cr.P.C.
2. The 1st respondent is the de facto complainant. The petitioners are the Managing Director and the Project Manager of M/s. R.K. Electric Automation Limited, Hyderabad. The case of the 1st respondent is that the petitioners induced him to enter into a sub-contract with the Company of the petitioners and then failed to pay the amounts due to him when the amounts fell due.
It is contended that the Company of the petitioners cancelled the work order dated 16-02-2013 although the petitioners were at fault in the non-execution of the works.
3. The petitioners, on the other hand, contended that when the petitioners engaged the 1st respondent as a sub-contractor for making constructions with a time schedule, the 1st respondent broke the same without any reason leading to the petitioners to cancel the sub-contract. Sri T.Niranran Reddy, learned Senior Counsel for the petitioners, submitted that the litigation is a civil litigation and that the FIR deserves to be quashed to discourage conversion of civil litigation into criminal complaint.
4. Sri V.Ravi Kiran Rao, learned counsel for the 1st respondent, on the other hand, claims that a clear case for the offences under Sections 420, 468 and 471 IPC is made out and that it is extraordinary to ask for the quashment of the FIR. He suggested that the investigation may be permitted to go ahead claiming that in the event the petitioners are not guilty, it would come out during the course of the investigation.
5. The learned counsel for the 1st respondent placed reliance upon State of Orissa v. Ujjal Kumar
[1]
Burdhan . It was noted by the Supreme Court that either a complaint or an FIR can be quashed if the allegations do not constitute any offence even if the allegations are taken at their face value. The learned counsel for the 1st respondent submitted that the complaint and the FIR prima facie revealed the offences, so much so, the petitioners cannot seek for the quashment of the FIR.
6. The learned counsel for the 1st respondent has also placed reliance upon LAKHWANT SINGH v.
[2]
JASBIR SINGH . It was held by the Supreme Court that the quashment of the FIR by the High Court through a non-reasoned order cannot be sustained. However, this decision merely implies that a reasoned order should be passed in this petition. This decision does not help in deciding the case one way or the other.
[3]
7. In STATE OF M.P. v. SURENDRA KORI upon by the learned counsel for the 1st respondent, relied it was observed that the High Court should normally refrain from making observations when the facts are incomplete and hazy. He claimed that the case is still at the embiyo stage where the investigation is in progress and that scuttling investigation is not justified.
8. The learned Senior Counsel for the petitioners placed reliance upon INDER MOHAN GOSWAMI v.
[4]
STATE OF UTTARANCHAL . In that case, it was noticed that where the dispute is purely a civil dispute, no offence under Section 420 or 467 IPC could be culled out. He submitted that the controversy between the petitioners on the one side and the 1st respondent on the other side is a pure civil dispute and that the criminal law has nothing to do with the same.
9. In DALIP KAUR v. JAGNAR SINGH reference to the offences under Sections 406 and
[5]
, with 420 IPC, it was observed by the Court that if the dispute between the parties was essentially a civil dispute, the same would not constitute the offence of cheating.
The Court explained the ingredients of Section 420 IPC as (a) deception of any person, (b) fraudulently or dishonestly inducing any person to deliver any property and (c) to consent that any person shall retain any property and finally (d) intentionally inducing such person to do or omit to do anything which he would not do or omit. The learned Senior Counsel for the petitioners submitted that the ingredients of cheating have not been established in this case.
10. The learned Senior Counsel for the petitioners also placed reliance upon THERMAX LTD. v. K.M.
[6]
JOHNY . In that case, there was delay. The Court found that there was inherent improbability and the complaint therefore was quashed.
11. In the present case, the basic claim is that the petitioners cancelled the work order without according any opportunity to the 1st respondent. I am afraid that such a conduct on the part of the petitioners would create a civil liability but not criminal action.
The learned counsel for the 1st respondent referred to Contract Award Letter dated 23-01-2012 by the Chief Engineer/Construction-I on behalf of Transmission Corporation of Andhra Pradesh Ltd., in favour of M/s. R.K. Electric Automation Ltd. Clause 43 of the Contract prohibits sub-contracting or sub-ordering.
It is the contention of the learned counsel for the 1st respondent that the petitioners deliberately failed to bring Clause 43 to the notice of the 1st respondent and thus cheated him. The prohibition is between the petitioners on the one side and their principal on the other side. The 1st respondent has nothing to do with such a prohibition. If the petitioners are liable to the 1st respondent, that liability continues irrespective of the contract between the petitioners on the one side and the Chief Engineer of A.P. TRANSCO on the other side.
I do not consider that not bringing Clause 43 to the notice of the 1st respondent is tantamount to cheating punishable under Section 420 IPC. Other offences alleged against the petitioners also have not been made out prima facie.
12. As rightly submitted by the learned Senior Counsel for the petitioners, the controversy is essentially a civil dispute. I therefore agree with the contention of the petitioners that the FIR is liable to be quashed. Needless to state that the 1st respondent is entitled to proceed against the petitioners for civil liability. So far as the criminal liability is concerned, the same does not exist since the dispute between the petitioners and the 1st respondent is purely a civil dispute.
13. This criminal petition, consequently, is allowed.
The FIR in Crime No.94 of 2013 on the file of Utnoor Police Station, Adilabad District is quashed so far as the petitioners 1 and 2 are concerned. The miscellaneous petitions, if any, pending in this petition shall stand closed.
Dr. K.G.SHANKAR, J.
15th July, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.10429 of 2013 15th July, 2014. (Ak)
[1] 2012 (2) ALD (Crl.) 365 (SC)
[2] (2008) 14 SCC 661
[3] (2012) 10 SCC 155
[4] (2007) 12 SCC 1
[5] (2009) 14 SCC 696
[6] (2011) 11 SCC 412