Punit Kumar Poddar @ Punit Poddar, aged about 54 years, son of late Prem v. 1. The State of Jharkhand 2. Arvind Prasad, son of late Devi Charan Sah
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 172 of 2022 Punit Kumar Poddar @ Punit Poddar, aged about 54 years, son of late Prem Kumar Poddar, resident of Uma Shanti Apartment, Kanke Road, P.O.-Kanke, P.S.-Gonda, Dist.-Ranchi, Director, Premsons Motor Udyog Pvt. Ltd. Nexa, Main Road, Kadru Diversion in front of Hotel Radission Blue, Ranchi .... Petitioner Versus 1. The State of Jharkhand 2. Arvind Prasad, son of late Devi Charan Sah, resident of Ward No.12, Purani Bazar, Garhwa, P.O. & P.S.-Garhwa, Dist.-Garhwa …. Opp. Parties P R E S E N T
Legal Reasoning
found prima facie case for the offence punishable under Section 406 of Indian Penal Code. 4. The allegation against the petitioner is that the petitioner is related to M/s. Premsons Motor Industries Private Limited. On being approached by the co-accused persons, the complainant became ready to purchase a car. The complainant transferred Rs.5,000/- as advance in the account of Premsons Motor and later on, further transferred money to the Premsons Motor and without showing the car to the complainant, the registration of the car was made. The complainant got the car after four days. 15 days after brining the car, the same became faulty. There were faults in the car 5-6 times. There was sound in the engine. Bubbles were coming out in the paint. Sensor was not working and there was difficulty. Premsons Motor has forcibly taken the vehicle. Premsons Motor gave an old vehicle to the complainant after making denting and painting of the same. The co-accused persons told the complainant to sign a form and to deposit Rs.3,50,000/- and told him that after that only, the car will be repaired and told the complainant that unless the money is paid, the car will not be repaired and if the complainant indulges in making the complaint then he will be shot dead by hiring shooters. 5. 6. Learned Chief Judicial Magistrate, Garhwa after taking into consideration the materials in the record, found prima facie case for the offence punishable under Section 406 of Indian Penal Code only. Learned counsel for the petitioner by relying upon the judgment of Hon’ble Supreme Court of India in the case of Deepak Gaba & Ors. Cr.M.P. No.172 of 2022 2 vs. State of Uttar Pradesh & Anr. reported in 2023 LiveLaw (SC) 3 : Criminal Appeal No. 2328 of 2022, paragraph no.20 of which reads as under:- that JIPL indicate indeed had “20. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are: (i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant, (ii) goods supplied were different from the order placed, and (iii) lying with, and returned by Respondent 2 goods complainant have not been accounted for. These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not the reflect and dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by the demand of Rs Respondent 2 complainant 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of “insufficient funds”.” is submits that even if the allegation made in the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses are stated to be true in its entirety, still the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioner. 7. It is next submitted by the learned counsel for the petitioner that for the selfsame matter, a complaint has been filed in the District Cr.M.P. No.172 of 2022 3 Consumer Forum, Garhwa vide C.C. No. 09 of 2020 hence, the dispute between the parties is at best a civil dispute but a cloak of criminal offence has been given to a purely civil dispute. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 8. Learned Special Public Prosecutor on the other hand opposes the prayer for quashing the entire criminal proceeding in connection with Complaint Case No.155 of 2021 as well as the order taking cognizance dated 25.03.2021 passed by the learned Chief Judicial Magistrate, Garhwa and submits that since the petitioner has taken money and has supplied an old car so the allegations are sufficient to constitute the offence punishable under Section 406 of Indian Penal Code. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the allegation of entrustment of money is to Premsons Motor but Premsons Motor has not been arraigned as an accused in this complaint. There is no allegation of entrustment of any money or any other property to the petitioner. The only allegation against the petitioner is that the petitioner is related to Premsons Motor Udyog Private Limited, Kanke Road, Ranchi. 10. The essential ingredients to constitute the offence punishable under Section 406 of Indian Penal Code is that :- (i) Mens rea (ii) There must be an entrustment, there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract Cr.M.P. No.172 of 2022 4 as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Vs. CBI reported in (2003) 3 SCC 641. 11. Now coming to the facts of the case, there is no allegation of either any entrustment or any dishonest misappropriation or conversion to is its own use or dishonestly using or disposing of the entrusted property against the petitioner. 12. Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true in its entirety, still, the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioner. Hence, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding in connection with Complaint Case No.155 of 2021 as well as the order taking cognizance dated 25.03.2021 be quashed and set aside qua the petitioner only. 13. Accordingly, the entire criminal proceeding in connection with Complaint Case No.155 of 2021 as well as the order taking cognizance dated 25.03.2021 is quashed and set aside qua the petitioner only. 14.
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For O.P. No.2 : Mr. Sidhartha Roy, Advocate : Mr. Shashi Bhushan Sah, Advocate : Mrs. Priya Shrestha, Spl. P.P. : None ….. By the Court:- 1. 2. 3. Heard the parties. Though notice has validly been served upon the opposite party no.2 yet no one turns up on behalf of the opposite party no.2 in-spite of repeated calls. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding in connection with Complaint Case No.155 of 2021 as well as the order taking cognizance dated Cr.M.P. No.172 of 2022 1 25.03.2021 by which the learned Chief Judicial Magistrate, Garhwa
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 3rd May, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.172 of 2022 5