Bhartendu Worah Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.835 of 2020

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Bhartendu Worah @ Bhartu Ora, son of Late Umed Worah, aged about 61 years, resident of Sneh Milan, Telephone Exchange Road, P.O. & P.S. Dhanbad, District Dhanbad, PIN826001

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Shiv Dutt Mishra @ Shivdat Mishra, son of Late Hirdya Narayan Mishra aged about 56 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No.3B/3P, Phase-3, Industrial Area, Balidih, P.O. & P.S. Balidih, District Bokaro.

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Dhirendra Kumar Shani @ Dhiren Sah, son of Late Shashi Bhusan Singh, aged about 42 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No.3B/3P, Phase-3, Industrial Area, Balidih, P.O. & P.S. Balidih, District Bokaro.

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Shalini Worah @ Shalini Ora, daughter of Late Himanshu Worah, aged about 45 years, resident of Sneh Milan, Telephone Exchange Road, P.O. & P.S. Dhanbad, District Dhanbad, PIN – 826001

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… Petitioners

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Versus

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The State of Jharkhand

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Md. Alimuddin, son of Marhoom Abdul Razak, aged about 40 years, resident of BIADA Housing Colony, Block No.5, Quarter No. 60, P.O. & P.S. Balidih, and District Bokaro.

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District Provident Fund Officer, Bokaro Employees Provident Fund Organization, District Office, near Dy. S.P. Office, Sector-1, Ram Mandir, P.O. & P.S.- Sector-1, Bokaro Steel City

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… Opposite Parties

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With

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Cr.M.P. No.734 of 2018

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Bhartendu Worah @ Bhartu Aura, son of Late Umed Worah,

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aged about 59 years, resident of Sneh Milan, Telephone Exchange Road, P.O. & P.S. Dhanbad, District Dhanbad, PIN826001.

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Shiv Dutt Mishra, son of Late Hirdya Narayan Mishra aged about 54 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No.3B/3P, Phase-3, Industrial Area, Balidih, P.O. & P.S. Balidih, district Bokaro

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Dhirendra Kumar Shani @ Dhiren Sah, son of Late Shashi Bhusan Singh, aged about 40 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No.3B/3P, Phase-3, Industrial Area, Balidih, P.O. &P.S. Balidih, district Bokaro.

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… Petitioners

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Versus

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The State of Jharkhand

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Md. Alimuddin, son of Marhoom Abdul Razak, aged about 40 years, resident of BIADA Housing Colony, Block No.5, Quarter No. 60, P.O. & P.S. Balidih, District Bokaro.

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District Provident Fund Officer, Bokaro Employees Provident Fund Organization, District Office, near Dy. S.P. Office, Sector-1, Ram Mandir, P.O. & P.S.- Sector-1, Bokaro Steel City

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… Opposite Parties

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With

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Cr.M.P. No.944 of 2020

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Bhartendu Worah @ Bhartu Ora @ Bharatu Ora, son of Late Umed Worah, aged about 61 years, resident of Sneh Milan, Telephone Exchange Road, P.O. & P.S. Dhanbad, District Dhanbad, PIN – 826001.

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Shiv Dutt Mishra, son of Late Hirdya Narayan Mishra aged about 56 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No. 3B/3P, Phase-3, Industrial Area, Balidih, P.O. & P.S. Balidih, District Bokaro.

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other allied cases

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Dhiren Sah @ Dhirendra Kumar Shani, son of Late Shashi Bhusan Singh, aged about 42 years, resident of M/s Eastern Neptha Chem Private Limited, Plot No.3B/3P, Phase-3, Industrial Area, Balidih, P.O. & P.S. Balidih, District Bokaro.

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Shalani Ora @ Shalini Worah, daughter of Late Himanshu Worah, aged about 45 years, resident of Sneh Milan, Telephone Exchange Road, P.O. & P.S. Dhanbad, District Dhanbad, PIN- 826001

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… Petitioners

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Versus

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The State of Jharkhand

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Ravindra Singh son of Late Jalo Singh aged about 69 years, resident of BIADA Housing Colony, Block No.06, Qtr. No.72, P.O. & P.S. Balidih, and District Bokaro.

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District Provident Fund Officer, Bokaro Employees Provident Fund Organization, District Office, near Dy. S.P. Office, Sector-1, Ram Mandir, P.O. & P.S.- Sector-1, Bokaro Steel City

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… Opposite Parties

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------ For the Petitioners : Mr. Jitendra S. Singh, Advocate Mr. Anish Kumar Mishra, Advocate Mr. Salona Mittal, Advocate For the State : Mr. Vineet Kumar Vashistha, Spl.P.P. Md. Fahad Allam, Addl.P.P. Mr. Rajesh Kumar, Addl.P.P. (through VC) For the O.P. No.2. : Mr. Sahil, Advocate Mr. Abhinaw Agarwal, Advocate For the O.P. No.3 : Mr. Rupesh Singh, Advocate Mr. Harshit Sahay, Advocate ------ P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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Since all these three Criminal Miscellaneous Petitions have been filed in respect of similar allegations and two of them being the cases – complaint; out of which, Cr.M.P. No.835 of 2020 has arisen and the complaint; out of which, Cr.M.P. No.734 of 2018 has arisen being filed by the same complainant against the petitioners. Hence, all these three Criminal Miscellaneous Petitions are disposed of by this common judgment.

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The brief facts of the case is that Cr.M.P. No.835 of 2020 has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the entire criminal proceedings and also the order taking cognizance dated 07.01.2020 passed in C.P. Case No.1199 of 2018 by the learned Judicial Magistrate-1^st Class, Bokaro whereby and where under the learned Judicial Magistrate-1^st Class, Bokaro has found prima facie case for the offences punishable under Sections 406, 419 of the Indian Penal Code.

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Cr.M.P. No.734 of 2018 invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been filed with the prayer to quash the entire criminal proceedings and also the order taking cognizance dated 30.11.2017 passed in C.P. No.640 of 2017 by the learned Judicial Magistrate-1^st Class, Bokaro whereby and where under the learned Judicial Magistrate-1^st Class, Bokaro has found prima facie case for the offences punishable under Section 406 of the Indian Penal Code.

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Cr.M.P. No.944 of 2020 invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been filed

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with the prayer to quash the entire criminal proceedings and also the order taking cognizance dated 23.09.2019 passed in C.P. No.1198 of 2018 by the learned Judicial Magistrate-1^st Class, Bokaro whereby and where under the learned Judicial Magistrate-1^st Class, Bokaro has found prima facie case for the offences punishable under Sections 406, 420, 467 and 471 of the Indian Penal Code.

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The allegation in all the three complaints is that the period in respect of which Complaint Case No.1199 of 2018 was filed, relates to about the month of May, 2014 and though the PF, ESI Contribution of the complainant was deducted, the same was not deposited with the concerned authority. There is further allegation against the petitioners that the house, canteen, education, money and other accounts were also deducted but were kept by the petitioners. When the complainants demanded their money, false promise was given to them but money was not paid to them. There was settlement between the parties on several occasions but the same was not honoured. There is also further allegation that the settlement paper was corrected by applying Whitener. The complainant of Complaint Case No.1199 of 2018 and Complaint Case No.640 of 2017 claims to be the permanent employee of the company, while the petitioner No.1 has been described as the Director of M/s Eastern Neptha Chemicals Private Limited. It has not been mentioned as to how the petitioner No.4 of Cr.M.P. No.835 of 2020 is associated with the said company and the petitioners No.2 and 3 are described as the Managers of the said company. In Complaint Case No.640 of 2017, the petitioner No.1

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has been described as the Director and the petitioners No.2 and 3 have been described as the Managers of the said company. The period involving Complaint Case No.640 of 2017 is from 01.12.2016 to the date of recording of the statement on solemn affirmation of the complainant of that case. In Complaint Case No.1199 of 2018, the petitioners No.1 and 4 have been described as the Directors of the M/s Eastern Neptha Chemicals Private Limited while the petitioners No.2 and 3 have been described as the Managers of the said company and the allegation is same. The period of non-payment of wages is from December, 2016 to April, 2017.

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On the basis of the respective complaints, the statement on solemn affirmation of the complainants and the statement of the inquiry witnesses, the learned Judicial Magistrate-1^st Class, Bokaro has passed the summoning order as already indicated above. 8. Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Manish vs. State of Maharashtra & Another reported in 2025 SCC OnLine SC 707 , para19 of which reads as under:-

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“19. On the contrary, appellant had clarified he had suffered continuous business setbacks. Due to losses, he was unable to pay the 2nd non-applicant. He had sold the coal to a brick manufacturer and suffered losses thereto. Vicissitudes in the commercial market are well known. Failure to pay due to unfortunate business losses cannot be clothed with culpability and the process of criminal law utilized to recover outstanding dues.” (Emphasis supplied)

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and submits that therein the Hon’ble Supreme Court of India

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has reiterated the settled principle of law that failure to pay due to unfortunate business losses cannot be clothed with culpability and the

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process of criminal law cannot be utilized to recover outstanding dues.

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Learned counsel for the petitioners next submits that in this case, the company namely M/s Eastern Neptha Chemicals Private Limited has not been arrayed as an accused nor any specific role has been attributed to any of the petitioners, for they being directly responsible for the acts of the company. It is then submitted that there were some outstanding dues in payment of wages to the employees because of financial losses sustained by the company but drawing the attention of this Court to the order dated 13.09.2017 passed by the learned Sessions Judge, Bokaro in Anticipatory Bail Petition No.241 of 2017, the learned counsel for the petitioners submits that in para-8 and 9 thereof, it has been mentioned that on 29.07.2017, the Enforcement Officer, District Office, EPFO, Bokaro was physically present before the learned Sessions Judge and the informant along with his learned counsel received all the demand drafts of the outstanding amount of Rs.30,85,513/-. Hence, it is submitted that both the dues of the EPFO and the outstanding salary of the complainants and other employees of the concerned company have already been paid. So, this is the case where no culpability or mens rea can be attributed to the petitioners in order to constitute any criminal offence.

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Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Limited & Others vs. State of Uttar Pradesh &

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Another reported in (2024) 10 SCC 690 , para-37 of which reads as under:-

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“37. Further, in both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception.” (Emphasis supplied)

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and submits that in that case, the Hon’ble Supreme Court of India has reiterated the settled principle of law that mens rea i.e. intention to defraud or the dishonest intention must be present and in the case of cheating, it must be there from the very beginning or inception. It is next submitted that there is no allegation against the petitioners of having played deception since the beginning of the transaction between the parties as admittedly the private opposite parties and their co-employees were getting salaries for a considerable period of time. Hence, it is submitted that neither the offence of cheating is not made out against the petitioner nor the offence punishable under Section 406 of the Indian Penal Code is made out against them.

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Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Susela Padmavathy Amma vs. Bharti Airtel Limited reported in (2024) 12 SCC 131, para-29 of which reads as under:-

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“29. It can thus be clearly seen that there is no averment to the effect that the present appellant is in charge of and responsible for the day-to-day affairs of the Company. It is also not the case of the respondent that the appellant is either the Managing Director or the Joint Managing Director of the Company.”

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and submits that in the absence of any allegation that the petitioners are in-charge of and responsible for day-to-day affairs of the company and the admitted fact that the petitioners are not the Managing Directors of the company, they cannot be held liable for the acts of omission or commission committed by the company concerned.

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Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Tarak Dash Mukharjee & Others vs. State of Uttar Pradesh & Others reported in 2022 SCC OnLine SC 2121, and submits that in para-12 of that case, the Hon’ble Supreme Court of India deprecated the registration of multiple FIRs in respect of the same occurrence as the abuse of process of law and such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India.

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The learned counsel for the petitioners in respect of the settled principle of law that when the allegations are against the company but the company has not been arrayed as an accused its director cannot be held responsible for the acts of the company, in the absence of any specific allegation against such director, relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sharad Kumar Sanghi vs. Sangita Rane reported in (2015) 12 SCC 781, para11 and 13 of which reads as under:-

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“11. In the case at hand as the complainant's initial statement would reflect, the allegations are against the Company, the Company has not been made a party and, therefore, the allegations are restricted to the Managing

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Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the Company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. [Aneeta Hada v. Godfather Travels and Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] in the context of the Negotiable Instruments Act, 1881.

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13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant.”

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In respect of non-maintainability of the two FIRs in respect of

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the same occurrence, the learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Babubhai vs. State of Gujarat reported in (2010) 12 SCC 254 , para21 of which reads as under:-

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“21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted.”

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Learned counsel for the petitioners then relies upon the judgment of the Hon’ble Supreme Court of India in the case of Shiv

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Kumar Jatia vs. State of NCT of Delhi reported in (2019) 17 SCC 193 , para-19 of which reads as under:-

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“19. The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in Sunil Bharti Mittal [Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri) 687] . In the aforesaid case, while considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides for. It is further held by this Court, an individual who has perpetrated the commission of an offence on behalf of the company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Further it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.”

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and submits that the cardinal principle of criminal

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jurisprudence is that there is no vicarious liability unless the statute specifically provides for the same and in this case, there being no vicarious liability for the offence under the penal provisions of the Indian Penal Code, hence, without arraying the company as a party and without any specific overt act or covert act alleged against any of the petitioners, merely because the petitioners are associated with the concerned company in the capacity of Directors and Managers, is insufficient to constitute the offence punishable in respect of which the prima facie case has been found by the learned court concerned. In this respect, the learned counsel for the petitioners also draws the

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attention of this Court towards para-59 of the judgment of the Hon’ble Supreme Court of India in the case of Amitbhai Anilchandra Shah vs. Central Bureau of Investigation reported in (2013) 6 SCC 348, para-59 of which reads as under:-

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“59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to “take over” the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment.”

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The learned counsel for the petitioners further relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.K. Alagh vs. State of Uttar Pradesh & Others reported in (2008) 5 SCC 662 and submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that even any case forming under Section 406 of the Indian Penal Code, vicarious liability has been held to be not extendable to the Directors or the Officers of the company. This observation was made relying upon the judgment the Hon’ble Supreme Court of India in the case of Maksud Saiyed vs. State of Gujarat reported in (2008) 5 SCC 668.

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In support of his contention that only because a person is CMD of the company and in the absence of any allegation against him of doing any particular act of omission or commission, such person

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cannot be arrayed as an accused. It is next submitted that in this case also, the petitioners ought not to have been arrayed as an accused.

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Learned counsel for the petitioners further submits that the allegation against the petitioners is false. No offence as alleged is made out against the petitioners even if the entire allegations against them are considered to be true in their entirety. Hence, it is submitted that the prayer as prayed for in these three Criminal Miscellaneous Petitions be allowed.

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Learned Addl.P.P.s and the learned Spl.P.P. appearing for the State in all these three Criminal Miscellaneous Petitions and the learned counsel for the private opposite parties appearing in all these three Criminal Miscellaneous Petitions on the other hand vehemently oppose the prayer of the petitioners made in these Criminal Miscellaneous Petitions and submit that each of the offences in respect of which the prima face case is made against the petitioners, is in fact, made out on the basis of the materials available in the record. Hence, it is submitted that these Criminal Miscellaneous Petitions, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Uma

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Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph No.6 of which reads as under:-

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“6. Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and

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only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied)

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that in order to constitute the offence of cheating, the accused must have played deception since the beginning of the transaction between the parties.

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Now coming to the facts of the case, there is no allegation against the petitioners of playing deception since the beginning of the transaction between the parties. It is the admitted case of the complainants that the employees were paid salary prior to the date when the cause of action for institution of the complaint arose. So, in the absence of any allegation against the petitioners of playing deception since the beginning of the transaction between the parties, this Court has no hesitation in holding that the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners, even if the entire allegations against the petitioners are considered to be true in their entirety.

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So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the essential ingredient to constitute the said offence is ‘dishonest misappropriation of the entrusted property by the person to whom such property was entrusted’ .

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Now coming to the facts of the case, there is no allegation against the petitioners of being entrusted with any property by anyone nor is there any allegation of dishonest misappropriation of

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entrusted property. In the absence of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners.

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So far as the offence punishable under Sections 467 and 471 of the Indian Penal Code the prima facie case in respect of which has been found by the learned Judicial Magistrate-1^st Class, Bokaro in the Complaint Case No.1198 of 2018 is concerned, in order to constitute the offences punishable under Sections 467 and 471 of the Indian Penal Code, ‘ creation of a false document which constitutes offence of forgery’ is essential’.

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Now coming to the facts of the case, there is no allegation against any of the petitioners of creating any false document and in the absence of the same, this Court is of the considered view that even if the entire allegations made against them are considered to be true in their entirety, the offence punishable under Section 467 of the Indian Penal Code is not made out against the petitioners and in the absence of the offence of forgery, neither the offence punishable under Section 467 of the Indian Penal Code nor the offence punishable under Section 471 of the Indian Penal Code is made out against the petitioners.

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In view of the discussions made above, this Court has no hesitation in holding that basically the dispute between the parties is a civil dispute but a cloak of criminal case has been given to it and

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keeping the fact that the outstanding contributions to the provident fund and the outstanding payment to the complainants and other coemployees have already been made, so, the continuation of the criminal proceeding against the petitioners will amount to abuse of process of law.

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In view of the discussions made above; as none of the offences in respect of which the prima facie case was found against the petitioners, is not made out against them, even if the entire allegations made against them are considered to be true in their entirety, hence, this Court is of the considered view that this is a fit case where the entire criminal proceedings and also the order taking cognizance dated 07.01.2020 passed in C.P. Case No.1199 of 2018, the order taking cognizance dated 30.11.2017 passed in C.P. No.640 of 2017 as well as the order taking cognizance dated 23.09.2019 passed in C.P. No.1198 of 2018 by the learned Judicial Magistrate-1^st Class, Bokaro in respective Criminal Miscellaneous Petition, be quashed and set aside. 28. Accordingly, the entire criminal proceedings and also the order taking cognizance dated 07.01.2020 passed in C.P. Case No.1199 of 2018, the order taking cognizance dated 30.11.2017 passed in C.P. No.640 of 2017 as well as the order taking cognizance dated 23.09.2019 passed in C.P. No.1198 of 2018 by the learned Judicial Magistrate-1^st Class, Bokaro in respective Criminal Miscellaneous Petition, is quashed and set aside.

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