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TMI Blog2021 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ing delivered today. 3. The first information report was registered on the basis of complaint case being Complaint Petition No. 687 of 2018, which was forwarded by the Additional Chief Judicial Magistrate, Bokaro by order dated, 7-7-2018 for registering the FIR and investigating the same in terms of Section 156(3) of the Code of Criminal Procedure. It is alleged by the complainant-opposite party No. 2 that the complainant is the Managing Partner of M/s. Kaizen Growth. It is alleged that he came in contact with Senior Executive of M/s. Thermax Limited for making boiler/turbines and equipments for power and steel plant installation and both companies entered into a contract under specific terms and conditions to execute installation of power plants. It is alleged that firstly an agreement was signed for the first order of M/s. Adhunik Mettalik, Jamshedpur for installation of 30 MW power plant @ Rs. 98 crore and the order was placed on Thermax Limited and Kaizen Growth was the consultant/Liaisoning Agent for this order, which was successfully executed on the agreed terms between the two companies and was fully maintained to the best of satisfaction. It has been alleged that on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business relation with M/s. Thermax Limited, Pune. It has been alleged that the petitioner has made false and fraudulent statement to save Cenvat of Thermax Limited to the tune of Rs. 32,55,78,926/-. It has been averred that it was established by the Commissioner that the petitioner fraudulently gave false statement to the Revenue Department on the business relation with the complainant which was based on written agreement. It has been alleged that all payments from M/s. Thermax to M/s. Kaizen Growth was made properly through account payee cheques after deduction of TDS and all service taxes were paid by the complainant's company M/s. Kaizen Growth as per Rules laid down covering all agreements. It has been averred that having gone through all documents, the Commissioner Central Excise, Pune imposed a heavy fine of Rs. 10 lakh on the petitioner and a penalty was imposed along with interest on M/s. Thermax for Rs. 1,34,60,350/-. It has been alleged that the petitioner paid these fines/penalty charges along with Rs. 10,000/- as fine imposed upon the company of the complainant M/s. Kaizen Growth. It has been alleged that due to the above said activities of the accused company an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at furthermore at the instance of the employees, who were looking for M/s. Thermax Project with the complainant, took nearly Rs. 10 lakh from the complainant including Rs. 4 lakh cash. These payments were made to them through account payee cheques. These payments were made on refundable basis but payment was never refunded to the complainant. It has been alleged that to utmost surprise, being Thermax registered vendor, having Vendor Code No. 133000 with M/s. Thermax Limited, who lied before the Commissioner and gave false and fraudulent on oath that caused the complainant a serious suffering mentally, financially and socially. In the circumstances set forth above, defamation that ruined the prestige, dignity of the complainant as well as his company by the petitioner, complainant sought Rs. 3 crore against defamation plus Rs. 10 lakh paid to them as per bank receipts. 4. Mr. Ajit Kumar Sinha, Learned Senior Counsel appearing for the petitioner, submits that even if the complaint is taken on its face value, no offence under Sections 406/420 of the Indian Penal Code is made out. He submits that the facts stated in the complaint, even if it is true, it suggests that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Department conducted survey upon M/s. Thermax Limited (petitioner's company) it is alleged that statements were given by the petitioners that they had no business relations with the company of the opposite party No. 2. The complainant was called to produce all the related documents, which they had. Thereafter it was concluded by the Revenue Authorities that M/s. Thermax Limited has made false statement to save Cenvat and M/s. Thermax Limited gave a false information that they had no relations with the company of the opposite party No. 2. The Commissioner, Central Excise imposed a fine of Rs. 10,00,000/- upon this petitioner, who is Managing Director of M/s. Thermax Limited along with interest. In paragraph 19 of the complaint petition, the complainant admits that M.S. Unikrishnan paid the fine and also the penal charges, which was imposed upon the complainant. It is the case of the complainant that because of this act, reputation of complainant's company was damaged. It is also the complainant's case that even though there was some arrangement between the complainant and the accused that the accused will work together in future Government projects, but, the accused refused to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redients of the offence of 'cheating' are :- (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 9. From a conjoint reading of aforesaid sections vis-à-vis the present case, I find that there is no allegation of delivering any property to any person, nor there is any allegation of altering or destroying any security. The element of deception vis-à-vis the complainant is missing in this case. The best allegation against the petitioner is that he suppressed the business relations between the petitioner and the complainant company with the Revenue Authorities to save tax. For this the complainant cannot be said to have been cheated. The revenue authorities, which was the onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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