ARINDAM MUKHERJEE, J.

1. In this criminal revisional application the petitioner has inter alia, sought for quashing of the First Information Report (in short FIR) being FIR No. 0081 of 2022 dated 20th April, 2022 registered under Sections 420/409 of the Indian Penal Code, 1890 (in short IPC) at the Aberdeen Bazaar Police Station pursuant to a complaint by the Executive Engineer, Non-Renewal Source of Energy (in short NRSE) along with all proceedings in connection there with including the notice under Section 41 A of the Code of Criminal Procedure, 1973 (in short CrPC) dated 04th September 2022 issued by the Officer Incharge, Aberdeen Bazaar Police Station.

2. The facts of the case are as follows:-

3. The petitioner was a director of UD Energy Systems Private Limited (hereinafter refer to as UDES) between 2007 and 2015. The petitioner while was a director had executed an agreement with NRSE for setting up a hybrid power plant with 10 KW capacity at Mount Herriate in South Andaman District. In terms of the said agreement dated 16th December, 2010 UDES was to receive 90% of the total consideration upon delivery of the materials for installing the hybrid power plant. The UDES subsequently agreed to receive 85% of the total consideration money and in fact had received of Rs. 25,07,043/- against the materials of Rs. 30,11,500/- in January, 2012.

4. The project was completed in 2013 and NRSE was asked to take handing over of possession of the same. The hybrid power plant could not be made operational as a result whereof NRSE held a departmental inquiry in 2014. In terms of the preliminary inquiry it was revealed in 2020 that some of the officers of the NRSE were involved in allowing the UDES to receive 85% of the cost of materials upon supply of materials de hors specification. Subsequently, on 20th April, 2022 the FIR was registered as per the complaint by the Executive Engineer of NRSE.

Submission of the Petitioner

5. The petitioner by referring to the complaint and the FIR submits that there was no malice of cheating on the part of the petitioner and the same is also not apparent from the FIR. The petitioner was the director of UDES. Upon supply of the materials in good condition which is admitted by the NRSE, the payment was released. The transaction is commercial in nature with a specific remedy agreed thereunder for resolution of disputes in case of breach of the contract through arbitrator.

6. The case made out by the NRSE according to the petitioner at the highest can be that of breach of a contract for which no complaint of cheating could have been made after lapse of eight years from the completion of the project. Since there is no ingredient of cheating and the petitioner was not named in the FIR, the FIR should be quashed qua the petitioner. The notice under Section 41A of the CrPC issued in connection with the investigation does not disclose that reasonable suspicion exist that the petitioner has committed a cognizable offence. The petitioner has replied to notice under Section 41A of the CrPC and have categorically stated to cooperate with the investigation.

7. The petitioner being a resident of Pune and of about 69 years of age with co-morbidity and others ailments should be permitted to participate in the investigation through virtual mode instead of actually coming down to Port Blair and physically participating in the investigation in response to the notice under Section 41A of the CrPC. The petitioner relies upon the judgments reported in 1992 Supp (1) SCC 335 (State of Haryana and others vs. Bhajan Lal and others), (2009) 3 SCC 78 (V.Y. Jose and another vs. State of Gujarat and another) and the judgment reported in (2000) 4 SCC 168 (Hridaya Ranjan Prasad Verma and others vs. State of Bihar and another) in support of his argument.

8. By relying upon of Bhajan Lal (supra) the petitioner says that there is a difference between “reason to suspect” under Section 157 (1) of the CrPC and reasonable suspicion under Section 41(a) and (g) of the CrPC. There is neither any reason to suspect a commission of a cognizable offence by the petitioner nor there could be reasonable suspicion for issuance of 41A notice.

9. The petitioner further submits that the case is squarely covered by the grounds enumerated in paragraph 102 of Bhajan Lal (supra) for this Court exercising its inherent power under Section 482 of the CrPC to quash the FIR.

10. By referring to V.Y. Jose (supra) the petitioner says that there exist a distinction between pure contractual dispute of a civil nature and an offence of cheating. To establish the offence of cheating it is necessary to first demonstrate that the complaint had been induced fraudulently or dishonestly or there was a motive to deceive. None of the ingredients are available against the petitioner. At the highest there is mere breach of contract on the part of UDES and as such the FIR should be quashed against the petitioner.

11. By referring to Hridaya Ranjan (supra) the petitioner says that the offence of cheating depends upon the intension of the accused at the time of inducement which may be judged by his subsequent conduct. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction i.e. time which is the gist of the offence. In the instant case after supply of the materials UDES had completed the installation. There was as such no fraudulent or dishonest intension right at the beginning of the transaction. It is at the highest a breach of contract by the company. The FIR qua the petitioner under section 409/420 IPC should therefore be quashed.

12. The petitioner has also relied upon a judgment and order dated 18th March, 2013 passed in CRR No. 859 of 2013 in the matter of Subrata Guha to demonstrate that the 41A notice issued to the petitioner is also required to be interfered with.

Submission of the respondent

13. On behalf of the prosecution it is submitted that the investigation is at the nascent stage. After receiving the complaint from a Government official, an FIR has been lodged in view of the provisions of Section 154 of the CrPC pursuant to which the officials of the NRSE has been summoned. After noting there version, the petitioner has been asked to come over and give his version. The quashing of the FIR at this stage is uncalled for. Admittedly, the petitioner was the director of UDES at the relevant point of time and he had executed the agreement. As a Principal Officer of the said company, the petitioner cannot escape his involvement and liabilities.

14. It is further submitted that there is no provision for virtually attendance under Section 41 A of the CrPC. The situation all over India is now normal. There is also no reason for the petitioner to be apprehensive at this stage if his conduct is clean as after the investigation, a report may be filed under Section 173 (2) when the petitioner may be exonerated, if nothing is found against him.

15. It is also submitted by the prosecution that Court cannot direct as to how the investigation will be conducted by the Investigating Officer (in short I.O). The Court can only monitor the investigation, if so required. The prosecution therefore submits that the application should be rejected.

Decision with reasons

16. After hearing the respective parties and considering the materials on records, I find that the petitioner is the executant to the contract on behalf of the UDES as its director. Being a director the petitioner is a Principal Officer and is responsible for any act of the company under the provision of Companies Act, 2013 or the Companies Act, 1956. The FIR is not a document of evidence and as such the scope of interfering with it at this stage is very limited.

17. The petitioner’s case does not come within any of the grounds as enumerated in paragraph No. 102 of Bhajan Lal (supra). It cannot be held at this stage that the FIR 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, it cannot also be said that the FIR does not disclose any cognizable offence justifying an investigation at this stage.

18. It is correct that the petitioner is implicated into the criminal case only in terms of a commercial transaction wherein the petitioner’s role is yet to be ascertained and indentified.

19. In the aforesaid facts and circumstances, I am not inclined to quash the FIR or stay the proceeding in connection thereto including the notice under Section 41 A of the CrPC. However, taking note of the fact that the complaint arises out of a commercial transaction/contract and that too after expiry of eight years from the date of completion of the project though not to the satisfaction of NRSE on the basis of which the FIR has been registered, I am inclined to grant the petitioner a limited protection to the extent that no coercive action should be taken as against the petitioner, if the petitioner cooperates with the IO for the conduct of the investigation and physically appears before him as and when required. The IO unless absolutely required should not ask for physical presence of the petitioner at Port Blair.

20. The criminal revisional application being CRR/29/2022 along with the connected applications are accordingly disposed of, however, without any order as to costs.

21. The parties shall act on the basis of a server copy of this order downloaded from the official website without insisting upon production of a certified copy thereof.