Brief facts
2. In both these appeals the appellant challenges the judgement and order dated 05.12.2023 passed by the High Court of Jharkhand allowing the petition filed by the respondents under Section 482 of Code of Criminal Procedure, 1973 and the High Court of Jharkhand by impugned judgment quashed the summoning order dated 31.01.2022 as well criminal proceedings pending in the court of Judicial Magistrate in connection with Case No. 30 of 2019 corresponding to proceedings pending in court of Judicial Magistrate, 1st Class Palamau.
3. The appellant challenging the order impugned is the original complainant to an application under Section 156 (3) of Code of Criminal Procedure, 1973 against M/s SS Infrastructure Co and its Partners (Respondent No.2 – Santosh Kumar Choudha in SLP (Crl.) No. 1500/2024; Respondent No. 2 – Sandhya Choudha and Respondent No. 3 – Rajeev Choudha – in SLP (Crl.) No. 1660/2024). Accordingly, the said FIR No. 38 of 2019 came to be registered on 02.04.2019. In this said FIR it is alleged that all the above mentioned respondents have committed offences under Sections 384, 389, 406 and 420 r/w Section 34 and 120B of Indian Penal Code, 1860. The accusation was two-fold. Firstly: the complainant had worked as a sub-contractor and an amount due to him was not paid by the main contractor i.e. Respondent no.2 – Santosh Kumar Choudha. The second allegation is of more serious nature namely the Respondent No.2 – Santosh Kumar Choudha, was successful in obtaining the contract fraudulently by submitting forged and fabricated documents.
4. The said contract was in respect of a project namely Namna Ankiat Project and the work under this project was of extension, restoration and modernisation under the Jinjoyi Irrigation Scheme in district Palamau, Jharkhand. The estimated cost of the work was of Rs.35,18,11,422/-. In response to the offer, the respondent firm M/s SS Infrastructure Co and its Partners submitted its bid along with the documents. The requisite condition was to have past experience of construction 3 to the tune of Rs.18,40,00,000/-. It was alleged that though the respondent firm had an experience of construction of Anikat (Check Dam) over Mandi River and the work contract was only for a sum of Rs.3,40,00,000/- but by submitting forged and fabricated documents, the respondent firm claimed that the work undertaken by the firm under tender no.1797 was of Rs.18,40,00,000/-.
Final report filed as lack of evidence Magistrate directed further investigation again final report filed for same reason hence magistrate summoned the accused
7. The investigating agency initially submitted its first final report on 31.10.2020. The investigation agency submitted final report on the grounds of lack of evidence. The appellant being aggrieved and not satisfied by this final report filed protest petition. The learned Magistrate in his detailed order dated 12.02.2021 observed that there are serious lapses and defects in the investigation and further investigation is necessary to meet the ends of justice. The investigating agency again citing the same reason that no sufficient evidence is available against the accused, submitted the second final report. The learned Magistrate was pleased to observe that the statements of the witnesses clearly revealed that the documents were fabricated. The Magistrate also observed that the informant himself had fabricated the documents and the Respondent No. 2 -Santosh Kumar Choudha, though was not entitled for grant of the tender on the basis of false and fabricated documents, the tender was still allotted to the respondents. It is also observed by the Magistrate that the respondents were the beneficiaries and the aspect of fabrication of the documents is a matter of trial. Consequently, summoning order dated 31.01.2022 was issued. As stated above, being aggrieved by the summoning order, the respondents filed an application for quashing the summoning order and criminal proceedings pending before the Judicial Magistrate, 1st Class Palamau.
Analysis
11. We have heard the arguments and perused the Judgments passed by the High Court as well as other relevant documents on record.
Hon’ble High Court observed that the appellant ha manipulated the documents by altering the experience certificate
12. Admittedly, in the present case the documents which were presented by the appellant were forged and fabricated documents. There are cross allegations by the appellant as well as Respondent No. 2 – Santosh Kumar Choudha, about the complicity of the forged documents. The High Court after perusing Para 140, 141 & 142 of the case diary observed that it was the appellant herein who had manipulated the documents by altering the experience certificate along with the tender and Respondent No. 2 – Santosh Kumar Choudha, was not involved in submitting the forged documents. The High Court laid much emphasis on the statements which are referred in the case diary and observed that it was the appellant before this Court who had manipulated the documents by altering the Experience Certificate along with the tender.
Respondent is the one who was successful in obtaining the tender on the basis of fabricated documents and the ultimate beneficiary
13. In our opinion, the High Court failed to appreciate the aspect that admittedly at the relevant time, the appellant was an employee and working for Respondent No.2 – Santosh Kumar Choudha. The High Court also failed to appreciate the fact that Respondent No.2 – Santosh Kumar Choudha, was successful in obtaining the tender on the basis of fabricated documents. Though Respondent No. 2 – Santosh Kumar Choudha, was not fulfilling the requisite condition of the experience but by using forged and fabricated documents, he has shown himself before the competent authority to be fulfilling the pre-requisite condition of experience. Thus, Respondent No.2 – Santosh Kumar Choudha was the ultimate beneficiary of the allotment of the said tender.
Respondent No.2 completed the work and got paid by the government
14. Learned counsel for Respondent No.2 – Santosh Kumar Choudha also submitted that admittedly the project was complete, the work allotted to him under the said project was complete and there was no objection raised by the Government in respect of the work. Since no objection was recorded against the work, the Government paid the amount to the Respondent No. 2 – Santosh Kumar Choudha, due and payable to him under the contract.
While exercising the power under section 482 Cr.P.C the High Court is not required to conduct the mini trial
15. This Court in a series of judgements has held that while exercising inherent jurisdiction under Section 482 of Criminal Procedure Code, 1973, the High Court is not supposed to hold a mini trial. A profitable reference can be made to the judgment in the case of CBI vs Aryan Singh (2023 SCC Online SC 379). Relevant paragraph from the judgment is extracted here under:
“Para 10…As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini trial.
At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.
A person who was involved in the forgery is a disputed question of fact shall de decided only during trial and not at the threshold
16. In the instant case, the High Court has delved into an aspect which was absolutely not warranted and has exceeded its jurisdiction. The aspect about complicity of a person who was involved in the forgery is a disputed question of fact and the same will have to be addressed after a proper appreciation of evidence which can be done only during trial and not at such a nascent stage when summons is served. The Magistrate while considering the fact that the Respondent No. 2 – Santosh Kumar Choudha, was a beneficiary and after considering the scope of summons order had rightly observed that a prima facie case is made out and the same required an adjudication through a trial.
At the stage of summons the High Court ought not to have recorded the finding on the aspect of forgery
17. The High Court ought to have considered the complicity of the accused in case of forgery, which will have to be addressed after a proper appreciation of evidence and such appreciation of evidence can be done only by undertaking the initial process i.e. by conducting the trial on the aspect of forgery. The summons order was only at an initial stage and at such a nascent stage, the High Court ought not to have recorded the finding on the aspect of forgery.
Since appellant was an equal mischief player cannot absolve respondent from criminal liability
18. At the cost of repetition, we state that admittedly respondents are the beneficiaries and merely because the appellant was an equal mischief player and/or a person having criminal antecedents at his credit by itself will not absolve respondents from the criminal liability as alleged against them. Least to say, “ Two wrongs do not make a right.”
Party
Dharambeer Kumar Singh Appellant(S) versus The State Of Jharkhand & Anr. Respondent(S) – Criminal Appeal No __________ OF 2024 ( @ SLP (CRL.) NO. 1500 OF 2024) – AUGUST 6, 2024 – 2024 INSC 583
Dharambeer Kumar Singh vs. The State of Jharkhand 38092024_2024-08-06
