- (1.) This Writ Application (Criminal) has been filed for quashing the entire criminal proceedings arising out of C. No. 1061/2007 including the Order dated 29.5.2009, passed by learned Judicial Magistrate, Ranchi in connection with the said case whereby cognizance under Section 420 of the Indian Penal Code has been taken against the petitioner and he has been directed to face trial and in consequent, warrant of arrest also issued on 9.11.2009. The brief facts of the case is that the Complainant/Respondent No. 2 [hereinafter referred to as 'R-2' in short) filed a Complaint Case No. 1061 of 2007 against the petitioner alleging therein that the petitioner, being the Managing Director of M/s. Endo Labs Ltd., a Company manufacturing medical goods, authorised him to obtain supply orders from RCH, Ranchi for supply of medicines for which tenders were invited by Jharkhand State Health and Family Welfare Society, Ranchi. The complainant was authorised for quoting rates, submitting tenders, participating in negotiation and receiving payments against supply made on behalf of Endo Labs Ltd. In this context an agreement and power of attorney were executed by the petitioner. It was agreed that the R-2 would get suitable commission against the supply order, if made in favour of the petitioner. The R-2 being a local businessman, having business connections agreed to the proposal and managed the contract in favour of the petitioner. It was contended in the complaint that investment of a sum of Rs. 5 Lacs. as earnest money deposited with the RCH, Ranchi; a sum of Rs. 5 Lacs, as contributory deposit with M/s. Endo Labs Ltd. and a sum of Rs. 4,67,000/- paid to various key persons of RCH, Ranchi, was made by the complainant. It was assured by the petitioner that said sum of Rs. 15 Lacs, would be reimbursed and Rs. 9 Lacs, as commission would also be paid to him after receiving 90% payment from RCH against supply of medicines. It is further contended that the R-2 managed the contract in favour of M/s. Endo Labs. Ltd. but after getting the supply order and after performing necessary supply and receipt of payment, the petitioner did not honour the terms and assurance and complainant was called at Indore where the petitioner took all original documents from him and tore the same in his presence and further asked him to enter into a fresh agreement and agreed only to pay Rs. 1 Lac as commission to which the complainant refused and having been felt cheated, lodged the instant complaint. After due enquiry, the petitioner has been summoned to face trial vide order dated 29.5.2009 passed in Complaint Case No. 1061 of 2007.
(2.) The petitioner has contended that the complainant in his statement on solemn affirmation (hereinafter referred to as 'S.A.' in short) has clearly admitted that he has lodged this case with a purpose to receive old dues lying against the petitioner. He has not come up with fair hands. The earnest money which he had deposited with RCH, Ranchi, was refunded to him. So far contributory deposit of Rs. 5 Lac is concerned, the petitioner has all along admitted in his reply to the notice and he was always ready to tender that amount but the complainant instead of accepting the same, lodged this case with false and frivolous allegation which do not constitute offence for which the complaint is filed. It is said that Rs. 4,67,000/- was given to various key persons of RCH, Ranchi for managing the contract at the instance of the petitioner, which is nothing but a white lie. The R-2 cannot claim that money which, according to his own admission, was spent on illegal head describing it Miscellaneous Expenses. The petitioner never instructed R-2 to spend any amount for managing the contract in his favour. In other words, it can be said that the complainant has been claiming the illegal gratification which he had given to the various key persons of RCH, Ranchi and if it is correct, the erring person, including the R-2, are liable to be prosecuted. Furthermore, the R-2 has failed to bring on record any agreement in support of his claim and, therefore, the basic ingredients of offence of cheating, as defined in Section 415 of the Indian Penal Code, are lacking.
(3.) The points needs to be addressed are:- i. Whether ab-initio dishonest intention was present? ii. Whether it is a case of breach of promise or violation of contractual obligation? iii. Whether an agreement, if any, for unlawful object or unlawful consideration, is a contract in the eyes of law and breach of such contract would constitute an offence of cheating?;