- (1.) THE application under Section 482 of the Code of Criminal Procedure has been filed for quashing entire criminal prosecution including the order dated 29.11.2002 passed in C.P. Case No. 230/2002, whereby and whereunder the learned Judicial Magistrate; Ist Class, Bokaro has taken cognizance against the petitioner under Sections 409, 422 and 323, IPC.
(2.) THE facts giving rise to the filing of this application are that complainant -opposite party No. 2 filed a complaint case being C.P. Case No. 230/2002 in the Court of learned Chief Judicial Magistrate, Bokaro stating therein that complainant is running a courier service in the name and style of "United Air Express" duly registered in Income Tax Department having ITCC No. 557/2001 -2002 and 606/2002, though the complainant is paying the income tax for the said firm from the year 1997 till now. Further case of the complaint -opposite party No. 2 is that the authority of B.S.L. entered into a written agreement with the complainant for courier service (Domestic and international). vide letter No. BSL/L and A/CR/2000 -151 dated 17.6.2000 in which the terms and conditions for courier service were arrived at in between the proper authority of BSL and the complainant and the complainant received 470 letters of Bokaro Steel plant for delivery to its addressee from the authority of Bokaro Steel Plant, which the complainant as per norms delivered the same and the proof of delivery was given to the proper authority, who directed the accused - petitioner to give payment to the complainant, but the accused -petitioner, for some ulterior motive even after proper perusal of delivery made by the complainant earlier, did not make payment to the complainant -opposite party for one reason or other and the accused -petitioner has intentionally and deliberately committed criminal breach of trust being a Government on the pretext that no proof of delivery has been given by the complainant and the signatures of the addressee or the persons who received the letters do not tally and such a plea is false plea, which is apparently and clearly a criminal breach of trust by a Govt. servant and on the basis of documents, the petitioner - accused has committed a criminal breach of trust. It is further alleged that the accused -petitioner in fraudulent way has removed or concealed the proof of delivery for preventing the complainant from taking payment of the bill amount which the complainant is demanding. Hence the accused - petitioner has also committed offence under Sections 421, 422 and 424, IPC. It is further alleged that complaint made several correspondence to the accused and also other authorities of BSL but no payment has been made to the complainant due to fraudulent and criminal act of the accused - petitioner and when he made personal approach to the accused, he demanded illegal gratification from the complainant and this is an abuse of the official power. It is further stated that in presence of witnesses he demanded Rs. 2000 as illegal gratification from the complainant and when he went to the quarter of the accused -petitioner as per advice and direction of the accused along with his witnesses, then petitioner -accused abused and assaulted him with fists in his cheek and tore his wearing clothes on 28.7.2002 at about 6.30 p.m., in quarter No. 537,I/C B.S. City. On this piece of allegation, the aforesaid complaint case was lodged and the learned Court below after holding enquiry under Section 202, Cr PC, has taken cognizance against the petitioner. Learned counsel appearing for the petitioner submitted that due to break down of the Franking Machine a decision was taken by the management to appoint an agency for distribution of domestic and international daks till the franking machine is put in order and M/s. United Air Express addressed a letter dated 30:5.2000 to Sri K. Singh, Deputy Chief (L and A), Bokakro Steel Plant. Bokaro offering to provide domestic and international courier services (Annexure 2) and thereafter, vide letter dated 17.6.2000, the management issued a work order in favour of United Air Express, which was received on the same day and in the said letter terms and conditions were also enclosed with the rates (Annexure 3) and as per terms of agreement the courier company has to submit 100% proof of delivery (POD) of documents/packets handed over to them for transmission. It is submitted that this complaint petition has been lodged against the petitioner for the sole reason that a courier company namely, United Air Express claims to have certain dues to the tune of Rs. 77,003/ -with an intention to recover the aforesaid amount but the proper remedy lies by filing a money suit in a civil Court of competent jurisdiction but instead of filing the same the complainant has filed a criminal case for recovery of the aforesaid dues. It is submitted that courier company has violated the terms and conditions as accepted by them, The courier company was entrusted with several documents packets, letters and parcels for delivery to their destination according to addresses written on the same but the courier company has not been able to submit 100% proof of delivery of all articles/assignments. It is further stated that the complainant was to submit 100% proof of 470 letters but he has submitted the proof of 460 letters and about remaining in 10 letters of parcels, he has not been able to submit the 100% proof of delivery. Besides the courier company has misplaced one packet containing the personal file of one CISF constable, which was addressed to the Deputy Commandant, PPT, Paradip (Orissa). The complainant has also given proof of delivery of said document which is a forged one, which would be evident from a message that was sent by the Deputy Commandant, CISF Unit, PPT, Paradip dated 10.1.2001. When all the mal practices were committed by the courier company then a legal notice was sent to the courier company by the Steel authority of India Ltd. by their letter dated 27.8.2001 and courier company sent reply through their advocate dated 11.9.2001. It is further submitted that the damage for misplacement of packet would come to Rs. 77,338.40, which would be evident from letter dated 12.3.2002. Thereafter correspondence was continued for payment and non -payment and this culminated into filing of a complaint case by the complaint and after enquiry cognizance in the case was taken against the petitioner.
(3.) LEARNED counsel for the petitioner, in course of his submission, placed reliance upon Keshav Kumar Roy. V/s. State of Jharkhand and others, 2003 (3) JCR 78 (Jhr): 2003 (2) JCJR 1 (Jhr): 2003 (2) JLJR 772, wherein it has been held that dispute emanating from breach of contract which was purely of civil nature and whole allegation based on agreement entered into between the parties, there cannot be any criminal liability and only civil liability may be there. Reliance was further placed upon Ajay Mitra V/s. State of M.P., 2003 (2) East Cr C 255 (SC) : 2003 (2) JCR 42 (SC) : 2003 (3) SCC 11, wherein it has been held that where complaint or FIR prima facie does not disclose commission of any cognizable offence against accused, the same is liable to be quashed. Reliance was also placed upon 2004 (2) SCC 731, wherein it has been held that existence of fraudulent intention at the time of making promise or misappropriation is a necessary ingredient of cheating but mere failure of the accused to keep up the promise was held not sufficient to prove the existence of such intention right from the beginning..;