& Anr Vs. The State of Jharkhand
& Anr  Insc 15 (20 January 2003)
Shah & Arun Kumar
ARUN KUMAR, J.
APPEAL NO. 71 OF 2003 (Arising out of SLP (CRL) No. 2698 of 2002 (Arising out
of SLP (CRL.) NO.2654 OF 2002 February 17, 2003.
# N Santosh Hegde & B P Singh.
70 of 2003 @ SLP(Crl)No.2654 of 2002 :
Appeal is filed by U. Dhar, Managing Director and Mr. Asis Ray, Vice President
(Operation), both of Tata Construction & Project Ltd. against an order
dated 3rd May, 2002 passed by the High Court of Jharkhand in Crl.M.P.
No.4780/2001 whereby the High Court dismissed the petition filed by the
appellant herein for quashing an order dated 19th June, 2001 whereby cognizance
was taken of offence against the appellants under Sections 403, 406, 420 and
120B of Indian Penal Code by the learned Chief Judicial Magistrate, Bokaro.
the facts are that Bokaro Steel Plant, a unit of Steel Authority of India
Limited (for short, SAIL) awarded a contract to M/s. Tata Iron & Steel Co.
Ltd. (for short, TISCO), Growth Shop for certain works. TISCO growth shop
completed supply part of the work and erection part of the work was entrusted
by it to M/s. Tata Construction & Projects Ltd. (for short TCPL). TCPL in
turn issued Tender Enquiry and awarded the work to M/s. Singh Construction Co.,
the complainant. According to the complainant after completing the work it
demanded payment of the balance amount under the contract from TCPL. The
appellants herein are the Managing Director and President (Operations) of TCPL.
When the complainant failed to receive the payment for the work done, they
filed a complaint on 11th
January, 2001 under
Sections 403, 406, 420 and 120B IPC at Bokaro. The concerned Magistrate took
cognizance of the alleged offences and issued summons vide order dated
19.6.2001 to the appellants. The appellants challenged the said order by filing
a Crl.M.P.4780/2001 in the High Court of Jharkhand at Ranchi. The impugned order was passed by
the High Court dismissing the said petition on 3rd May, 2002.
present appeal has been filed against the said order of the High Court whereby
the High court refused to quash the order of the learned Chief Judicial
Magistrate taking cognizance of the alleged offences against the appellants.
The learned counsel for the appellants argued that a perusal of the complaint
would show that no case is made out against the appellants for the alleged
offences, and, therefore, the order passed by the learned Chief Judicial Magistrate
is wholly without jurisdiction. According to the learned counsel for the
appellants, the controversy relates to purely a civil dispute regarding payment
of money and no case for criminal complaint for the alleged offences is made
out. We have been taken through the complaint as well as our attention has been
drawn to the impugned order passed by the Chief Judicial Magistrate and the
confirming order of the High Court. After careful consideration of the facts
placed on record, it appears to us that the dispute between the parties is of a
purely civil nature. The grievance of the complainant is about the failure of
TCPL to pay the balance amount under the contract even though according to it
the work stands completed. The appellants have disputed this.
view, what is relevant is that the contract between TCPL and the complainant is
an independent contract regarding execution of certain works and even assuming
the case of the complainant to be correct, at best it is a matter of recovery
of money on account of failure of TCPL to pay the amount said to be due under
complainant has alleged that TCPL has already received the money from SAIL for
the work in question and it has misappropriated the same for its own use
instead of paying it to the complainant and it is for this reason that the
offences are alleged under Sections 403, 406 and 420 etc.
courts below have overlooked the fact that the contract between Bokaro Steel (a
unit of SAIL) and TCPL is a separate and independent contract. The contract
between complainant and TCPL is altogether a different contract.
contractual obligations under both the contracts are separate and independent
of each other. The rights and obligations of the parties i.e. the complainant
and TCPL are to be governed by the contract between them for which the contract
between TCPL and Bokaro Steel (SAIL) has no relevance. Therefore, even if Bokaro
Steel has made the payment to TCPL under its contract with the latter, it will
not give rise to plea of misappropriation of money because that money is not
money or movable property of the complainant.
Section 403 uses the words 'dishonestly' and 'misappropriate'. These are
necessary ingredients of an offence under Section 403, IPC. Neither of these
ingredients are satisfied in the facts and circumstance of the case. In para 14
of the complaint, the complainant has stated as under:
of payments to complainant was never depended on the payment released by Bokaro
Steel Plant a Unit of SAIL to TISCO growth shop and TCPL".
admittedly, the two contracts are independent of each other and payment under
one has no relevance qua the other. It cannot be said that there is any
dishonest intention on the part of appellants nor it can be said that TCPL or
the appellants have misappropriated or converted the movable property of the
complainant to their own use.
the basic ingredients of the relevant Section in the Indian Penal Code are not
satisfied, the order taking cognizance of the offence as well as the issue of
summons to the appellants is wholly uncalled for. Such an order brings about
serious repercussions. So far as the appellants are concerned when no case is
made out for the alleged offences even as per the complaint filed by the complainant,
there is no reason to permit the appellants to be subjected to trial for the
alleged offences. Hence, the appeal is allowed.
impugned orders of the High Court as well as of Chief Judicial Magistrate are
hereby ordered to be quashed.
APPEAL NO. 71 OF 2003 @ SLP(CRL)NO.2698/2002:
view of the above judgment, this appeal is also allowed.