D.K.SINHA, J. - (1.) THE petitioner has invoked the extraordinary writ jurisdiction of this Court for quashment of the entire criminal proceeding including the order dated 7.7.2006 whereby the Chief Judicial Magistrate, Ranchi took cognizance of the offence under Sections 406/420 of the Indian Penal Code against the petitioner, the record now pending in the court of Sri. R.N. Rai Judicial Magistrate, Ist Class, Ranchi arising out of Kotwali P.S. Case No. 592 of 2005 corresponding to G.R. No. 2911 of 2005.
(2.) THE prosecution story in short was that the complainant -respondent No. 2 Mahabir Bhagat presented a complaint case No. 871 of 2005 before the C.J.M. Ranchi against the petitioner stating interalia that he was a truck driver having valid license of driving the truck. He was appointed by the petitioner on monthly salary of Rs. 2000/ - for driving his truck No. CG -04/T -7437 with other incentives and he used to get salary regularly for three months but thereafter it was alleged that the petitioner retained his salary on the pretext that it would be paid to him in future. Whenever complainant -respondent No. 2 demanded his salary it was assured that the same was being deposited and that the entire due amount would be paid to him at the time of his need in lump sum. In the meantime the petitioner purchased a new truck and it was made over to the complainant -respondent No. 2 under his control for driving. The complainant upon the assurance had made up his mind that on accumulation of his entire salary he would purchase a tractor and start cultivation work in his own village. On 10.7.2005 when the complainant -respondent No. 2 demanded his entire dues in one lump sum, the petitioner fired and removed him from the job and in that manner his deposited amount to the tune of Rs. 75,000/ - was usurped. The complainant -respondent No. 2 a poor tribal who used to work as driver under the employment of the petitioner was deceived and the petitioner thereby committed breach of trust and offence under Sections 406/417/419/420 of the Indian Penal Code. The matter was referred to the police under Section 156(3) of the Code of Criminal Procedure and after institution and investigation of the case, the police submitted charge sheet against the petitioner under Sections 406/420 of the Indian Penal Code. Having been satisfied with the prima facie materials on the case record, the C.J.M. Ranchi took cognizance of the offence as stated above. Mr. Ananda Sen, the learned Counsel submitted that from the plain reading of the complaint it would be crystal clear that the complainant was claiming his arrears of wages from the petitioner alleged to be due to him and even if the prosecution case is admitted to be true for the sake of argument, though denied, the appropriate forum for the complainant would have been the competent court under the Payment of Wages Act and not under any provision of Indian Penal Code and therefore, the cognizance of the offence taken under Sections 406/420 of the Indian Penal Code against the petitioner was miscarriage of justice. As a matter of fact, there was no relation of employer and employee between the contesting parties. Similarly there was no inducement on the part of the petitioner or entrustment of any property by the complainant -respondent No. 2 to him so as to constitute an offence of criminal breach of trust. Mr. Sen asserted that the complainant -respondent No. 2 as a matter of fact used to work in a motor garage in which the truck of the petitioner used to be sent for repairing or servicing. Finally Mr. Sen submitted that according to the prosecution version as contained in the complaint petition, the complainant -respondent No. 2 was engaged by the petitioner on 1.1.2000 to drive his truck bearing registration No. CG -04 ZC 7437 and that the initial letters 'CG' stand for Chhatisgarh. It was the matter of common knowledge that on 1.1.2000 the State of Chhatisgarh was not in existence so as to provide registration with 'CG' and therefore, in this manner the entire allegation as against the petitioner is falsified and that the present case has been brought about only to harass the petitioner by institution of false case under the IPC which is not maintainable in view of the facts and circumstances of the case.
(3.) THE payment of wages Act, 1936 applies in the first instance to the payment of wages to persons employed in any [factory, to persons] employed [otherwise than in a factory] upon any railway by a railway administration or, either directly or through a sub -contractor, by a person fulfilling a contract with a railway administration [and to persons employed in an industrial or other establishment specified in Sub -clause (a) to (g) of Clause (ii) of Section -2]. But covers tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward. The prosecution story is that the complainant -respondent No. 2 was employed by his employer -petitioner in motor transport service which used to carry goods by road for hire or reward and therefore, for any kind of grievance for settlement of wages or realization of the amount due to the employer shall be settled under the Payment of Wages Act 1936.;