Full Judgment Text
Crl.A. No. 2121/2010 @ SLP(Crl.) No. 7520 of 2009
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2121 OF 2010
ARISING OUT OF SLP (CRL.) NO. 7520 OF 2009
P. UDAY KUMAR ..... APPELLANT
VERSUS
STATE OF JHARKHAND & ANR. ..... RESPONDENTS
O R D E R
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1. Accused, aggrieved by the order dated 27 March,
2009, passed by the Jharkhand High Court in Criminal
Revision No. 634 of 2008 refusing to set aside the order
th
dated 29 July, 2008, passed by the Judicial Magistrate,
First Class, Bermo at Tenughat in G.R. No. 441 of 2007
whereby the application filed for discharge had been
rejected, has preferred this petition for granting leave..
2. Leave granted.
3. Short facts giving rise to the present appeal are
that the complainant who is respondent No. 2 herein filed
a petition of complaint in the Court of Additional Chief
Judicial Magistrate, Bermo, Tenughat, inter alia,
alleging that the complainant is the Project Director of
Power Mech Project Private Limited and Managing Director
of Manne Project Private Limited. A contract for
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construction of work of second unit of D.V.C. at
Chandrapura was allotted to BHEL Company, which in turn
assigned the work to the aforesaid Power Mech Project
Private Limited as petty contractor. According to the
complainant he had appointed the appellant as its petty
contractor. Appellant commenced his work but disclosed
to the complainant that he is facing problem in executing
the work due to insufficiency of funds and, therefore,
demanded money from him with the promise that the amount
will be adjusted at the time of settlement of the
account. Accordingly, complainant gave a total sum of
Rs. 11,45,714/- on different dates as loan through
cheques so that the work is expeditiously completed. The
appellant after receipt of the amount proceeded to
execute the work and when the required progress was not
made the complainant asked the appellant to return the
amount, in case he is not interested in executing the
work. Despite promise, the appellant did not return the
amount.
4. On the basis of the complaint laid, the learned
Magistrate took cognizance of offence under Section 406
of the Indian Penal Code. The complaint was referred to
the police for investigating under Section 156(3) of the
Code of Criminal Procedure and on that basis FIR No. 26
of 2007 was lodged under Section 420 and 406 of the
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Indian Penal Code. Police after investigation submitted
charge sheet under Sections 406 and 420 of the Indian
Penal Code and the appellant was summoned to face the
trial.
5. During the trial appellant filed an application for
discharge under Section 239 of the Code of Criminal
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Procedure and the learned Magistrate by order dated 29
July, 2008, directed for framing of the charge under
Section 406 of the Indian Penal Code and while doing so,
it was observed that no offence under Section 420 of the
Indian Penal Code is made out. Appellant herein
aggrieved by the same, preferred revision application
before the High Court which has been dismissed by the
impugned order.
6. Mr. Shree Prakash Sinha, learned Counsel appearing
on behalf of the appellant submits that according to the
complainant itself, the amount was given to the appellant
as loan for executing the contract work and, therefore,
the ingredients of Section 405 of the Indian Penal Code
so as to make the offence punishable under Section 406 of
the Indian Penal Code is not made out.
6. Mr. Sanjeev Kumar, learned Counsel appearing on
behalf of the complainant – respondent No. 2, however,
submits that it is a triable issue and the High Court
rightly dismissed the revision application observing so.
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7. We have appreciated the rival submissions and we
find substance in the submission of the learned Counsel
for the appellant. According to the complainant itself
the amount was given as loan and as such the amount given
cannot be said to have been entrusted to the accused and,
therefore, the allegation made does not constitute the
offence punishable under Section 406 of the Indian Penal
Code.
8. We are of the opinion that prosecution of the
appellant is an abuse of the process of the Court.
However, this shall have no bearing on any civil
proceeding pending or to be instituted in future between
the parties.
9. In the result, the appeal is allowed, impugned
orders are set aside and the appellant is discharged from
the case.
...........................
J
[HARJIT SINGH BEDI]
...........................
J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
OCTOBER 25, 2010.
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