Aaditya Khaitan@Aditya Khaitan vs The State Of Jharkhand

2025 INSC 575 Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. of 2025 (@ Special Leave Petition (Crl.) No.15413 of 2023)

Aaditya Khaitan @ Aditya Khaitan & Ors. Appellant(s) Versus The State of Jharkhand & Ors. Respondent(s) JUDGEMENT

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appeal is against the judgment of the High Court,

refusing to invoke the power under Section 482 of the Code of

Criminal Procedure, 19731 to quash the FIR registered against the

appellants, a company, whose officers are the appellants. The

Deputy General Manager2 of M/s. National Building Construction

Corporation Limited3 also filed a similar application, in which the

Signature Not Verified Digitally signed by Nirmala Negi 1 Date: 2025.04.28 15:34:59 IST the Cr.PC Reason: 2 the DGM 3 the NBCCL

Page 1 of 8 Crl. A. @ SLP Crl. 15413 of 2023 FIR against him was quashed. The appellants are aggrieved with

the refusal of the High Court to quash the FIR against them too,

which registration of crime according to the appellants is a strong

arm tactic to obtain recovery of money allegedly payable under

a contract, for which arbitration proceedings are initiated, which

has been stayed due to the pendency of the insolvency

proceedings under the Insolvency and Bankruptcy Code, 2016 in

which a moratorium has been ordered by the National Company

Law Tribunal, Kolkata Bench by order dated 29.04.2022 in Bank

of India v. McNally Bharat Engineering Company Limited4.

3. We heard Mr. Gopal Sankarnarayanan, learned Senior

Counsel appearing for the appellants, Mr. Rajiv Shankar Dwivedi,

learned Standing Counsel for the respondent-State and Mr.

Deepak Dhingra, learned Counsel for the respondents. The crux

of the allegations is that the first accused-company having

obtained a contract from the NBCCL, sublet a portion of the work

to the second respondent herein; which ran into trouble, was

stalled, then revived, and again came to a standstill. Since

payments were due for the work carried out, the second

4 C.P (IB) No. 891/KB/2020

Page 2 of 8 Crl. A. @ SLP Crl. 15413 of 2023 respondent had sought an intervention in a proceeding before the

High Court, pending between the first accused company and

NBCCL, which was declined on the ground there is no back-to-

back contract, the contract between NBCCL and the first accused

clearly having provided a restrictive covenant against subletting

the contract without the consent of NBCCL. The second

respondent herein who was the complainant alleged that this fact

was suppressed and, hence, the accused were liable to be

proceeded against for the offences punishable under Section 406,

420, 467, 468 and 471 read with Section 34 of the Indian Penal

Code, 1860.

4. The High Court having considered the matter also referred

to certain relevant decisions with respect to quashing of an FIR

under Section 482, Cr. PC and while allowing it against the DGM

of NBCCL, refused to grant such relief to the appellants herein,

finding that it cannot be prima facie said that no offence

punishable under law is made out against the appellants herein.

5. The High Court has extracted from the judgment in Prof.

R.K.Vijayasarathy and Anr. v. Sudha Seetharam and Anr.5,

5 (2019) 16 SCC 739

Page 3 of 8 Crl. A. @ SLP Crl. 15413 of 2023 wherein the power under Section 482, Cr. PC was dealt with

relying on the judgment in Indian Oil Corporation v. NEPC

(India) Ltd.6. Going by the binding precedents, it is trite that a

complaint can be quashed when the allegation made in the

complaint, even when taken on its face value and accepted in its

entirety, do not prima facie constitute any offence or make out the

case alleged against the accused. What is required is the

examination of the complaint as a whole, without examining the

merits of the allegations; desisting from a detailed inquiry or

meticulous analysis of the material nor an assessment of the

reliability or genuineness of the allegations in the complaint.

6. The above exercise, obviously, has not been carried out by

the High Court and after merely relying upon the negative

covenant in the contract between NBCCL and the first accused, it

was held that there is suppression of material facts which amounts

to dishonest and fraudulent action.

7. We have examined the complaint made, as available in the

FIR produced as Annexure P II. The complaint alleges that the first

accused-company expressed its intention to enter into a contract

6 (2006) 6 SCC 736

Page 4 of 8 Crl. A. @ SLP Crl. 15413 of 2023 to carry out a portion of the project for which a contract was

entered into with NBCCL. There was a contract entered into

between the first respondent accused and the complainant, based

on which the work was also commenced. The allegations as laid

down in the FIR mostly constitute a narration of the bills submitted

by the complainant and the part payments made by the accused,

as also the balance remaining. It is then submitted that for reason

of non-completion of the work within the stipulated time, as

agreed with NBCCL, the work was directed to be stopped by

NBCCL. A proceeding was initiated by the first accused before

the High Court against the NBCCL in which the complainant

sought intervention, which was denied by the High Court finding

that there is no back to back contract for the reason of the

restrictive covenant in the contract of the first accused with the

NBCCL. The complainant submits that only then, they realised that

there was a stipulation in the contract that subletting will be

permissible only on consent of the principal.

8. However, it is also stated in the complaint that later, on the

directions of the High Court, the contract was resumed, when

even the complainant resumed their work as per the contract

Page 5 of 8 Crl. A. @ SLP Crl. 15413 of 2023 entered into with the first accused. This was after the restrictive

covenant came to the knowledge of the complainant. Again, bills

were submitted, and part payments were made, wherein also,

there are amounts still remaining due to the complainant. An

application filed before the NCLT by the complainant was

rejected, as is seen from Annexure P12. The complainant has now

invoked the arbitration clause, but there is a stay of arbitration, as

admitted by both parties due to the moratorium ordered by the

NCLT.

9. A reading of the complaint, hence, would indicate a contract

having been entered into pursuant to which there were financial

transactions and allegedly amounts are due to the complainant.

We would assume for the moment that the restrictive covenant not

available in the contract with the NBCCL was not disclosed by the

first accused, when they entered into the contract with the

complainant. A reading of the complaint but would clearly

indicate that the complainant was aware of the fact, at the

inception itself, that they were entering into a contract to do a

portion of the work, as per the contract awarded by NBCCL to the

accused company. While the complainant alleges suppression,

Page 6 of 8 Crl. A. @ SLP Crl. 15413 of 2023 obviously, the complainant also did not make any effort to look

into the contract entered with the NBCCL by the first accused.

10. In any event, even if we assume that the sub-contract was

without a consent from the principal and that the restrictive

covenant was suppressed from them, it would only entail an action

by NBCCL as against the first accused-company. The NBCCL

cannot take any action against the complainant since it has no

privity of contract with the complainant.

11. Further, even if, there is a restrictive covenant and the

contract of the NBCCL was terminated for reason of the sub-lease,

that alone cannot absolve the first accused company from

satisfying the bills raised by the complainant, if it is in accordance

with the contract they entered into. The complainant has taken

steps for recovery of the amounts due, which unfortunately has

been stalled by reason of the moratorium ordered by the NCLT.

The complainant would have to take proper recourse and avail its

legal remedies for recovery of money, which is the crux and

essence of the allegations as we discern from the complaint, read

in its entirety. We do not find any criminality arising from the

Page 7 of 8 Crl. A. @ SLP Crl. 15413 of 2023 allegations and prima facie, the allegations do not constitute any

offence or make out any case against the accused persons.

12. We are, hence, of the opinion that the High Court erred in

not invoking the power under Section 482, Cr. PC in the present

case. The High Court having failed to invoke its power under

Section 482, Cr. PC in the appeal, we invoke the same and quash

the FIR on which no further proceedings will be taken. The appeal

stands allowed.

13. Pending application, if any, shall stand disposed of.

………….……………………. J.

(SUDHANSHU DHULIA)

………….……………………. J.

(K. VINOD CHANDRAN)

NEW DELHI;

APRIL 28, 2025.

Page 8 of 8 Crl. A. @ SLP Crl. 15413 of 2023