Parimal Kumar Singh, aged about 54 years, Son of Dhiren Prasad Singh, resident of v. 1. State of Jharkhand 2. Sukhdeo Pandit, son of Late Nakul Pandit, resident of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 260 of 2024 Parimal Kumar Singh, aged about 54 years, Son of Dhiren Prasad Singh, resident of “Chitralay” Karnibag, Post & Police Station – Deoghar, District –Deoghar, Jharkhand. .... Petitioner Versus 1. State of Jharkhand 2. Sukhdeo Pandit, son of Late Nakul Pandit, resident of Village Baisdih, Post –Dumaria & P.S. –Sonaraithari, District –Deoghar, Jharkhand. Opp. Parties …. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For the O.P. No.2
Legal Reasoning
It is well settled that every breach of contract would not give rise to an offence of cheating and 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) that every breach of contract would not give rise to an offence of cheating and 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 will not amount to cheating. 4 Cr.M.P. No.260 of 2024 8. Now coming to the facts of the case, there is no allegation against the petitioner of playing deception since the beginning of the transaction between the parties rather admittedly the complainant has been paid Rs.1,10,00,000/-. Under such circumstances, this Court has no hesitation in holding that even if the allegations made against the petitioner are considered to be true in their entirety; still the offence punishable under Section 420 of the Indian Penal Code is not made out. 9. So far as the offence punishable under Section 379 of the Indian Penal Code is concerned, police after investigation of the case has found it to be not true. The learned Magistrate after considering the materials in the record did not found prima facie case for the offence punishable under Section 379 of the Indian Penal Code. The said order of the Magistrate has not been challenged. From the perusal of the record, it appears that the allegation of commission of theft is an ornamental allegation to make the case a serious one. Under such circumstances, keeping in view the fact that the entire criminal proceeding has been quashed against the co-accused –Sandeep Kumar Dey and as the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner, this Court is of the considered view that continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding initiated against the petitioner in connection with Protest-cum-Complaint Case being 5 Cr.M.P. No.260 of 2024 P.C.R. Case No. 167 of 2014 arising out of Deoghar Town P.S. Case No. 410 of 2012 corresponding to G.R. Case No. 1426 of 2012 and also the order dated 02.03.2015, passed by the learned Chief Judicial Magistrate, Deoghar in connection with the said P.C.R. Case No. 167 of 2014; whereby the learned Chief Judicial Magistrate has found prima facie case inter-alia against the petitioner and issued summons for having committed the offence punishable under Section 420 of the Indian Penal Code, be quashed and set aside qua the petitioner only. 10. Accordingly, the entire criminal proceeding initiated against the petitioner in connection with Protest-cum-Complaint Case being P.C.R. Case No. 167 of 2014 arising out of Deoghar Town P.S. Case No. 410 of 2012 corresponding to G.R. Case No. 1426 of 2012 including the order dated 02.03.2015, passed by the learned Chief Judicial Magistrate, Deoghar in connection with the said P.C.R. Case No. 167 of 2014 whereby the learned Chief Judicial Magistrate has found prima facie case inter-alia against the petitioner and issued summons for having committed the offence punishable under Section 420 of the Indian Penal Code is quashed and set aside qua the petitioner only. 11.
Arguments
: Mrs. Ritu Kumar, Advocate : Mr. Lalit Yadav, Advocate : Mr. Pankaj Kumar, P.P. : Mr. R.S. Mazumdar, Sr. Advocate : Mr. Nishant Kr. Roy, Advocate ….. By the Court:- 1. 2. Heard the parties. 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 initiated against the petitioner in connection with Protest-cum-Complaint Case being P.C.R. Case No. 167 of 2014 arising out of Deoghar Town P.S. Case No. 410 of 2012 corresponding to G.R. Case No. 1426 of 2012 and also to quash the order dated 02.03.2015, passed by the learned Chief Judicial Magistrate, Deoghar in connection with the said P.C.R. Case No. 167 of 2014 whereby the learned Chief Judicial Magistrate has found prima facie case inter-alia against the 1 Cr.M.P. No.260 of 2024 petitioner and issued summons for having committed the offence punishable under Section 420 of the Indian Penal Code. 3. The allegation against the petitioner is that the petitioner was the sub-contractor under the co-accused –Sandeep Kumar Dey and Sandeep Kumar Dey engaged the complainant after the petitioner introduced the complainant with the co-accused –Sandeep Kumar Dey for the widening, strengthening, construction of culvert and guard wall. It is the admitted case of the complainant that the complainant was paid Rs.1,10,00,000/-till the year 2009 but thereafter Rs.21,15,800/-has not been paid and the petitioner embezzled Rs.88,000/-. The learned Chief Judicial Magistrate, Deoghar, basing upon the complaint, statement of the complainant on solemn affirmation and statement of the inquiry witnesses has found prima facie case for the offence punishable under Section 420 of the Indian Penal Code and ordered for issuance of summons. 4. It is submitted by the learned counsel for the petitioner relying upon the Judgment of a Coordinate Bench of this Court passed in Cr.M.P. No. 1049 of 2016 dated 22.11.2023, in the case of Sandeep Kumar Dey Vs. The State of Jharkhand & Anr. that by the said Judgment, the Coordinate Bench has quashed the entire criminal proceeding including the order dated 02.03.2015 against the petitioner of that case who is the co-accused, of this petitioner. It is next submitted that the case of the petitioner stands on a better footing than the co-accused. It is then submitted that the co- 2 Cr.M.P. No.260 of 2024 accused was the main contractor and the petitioner was only a sub-contractor. It is next submitted that there is also allegation that the payment was not made by the co-accused. It is then submitted that even if the allegations made against the petitioner are considered to be true in their entirety, still in the absence of any allegation that the petitioner has the intention to play deception since the beginning of the transaction between the parties, the offence punishable under Section 420 of the Indian Penal Code is not made out. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed. 5. The learned Public Prosecutor and the learned senior counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for in this criminal miscellaneous petition and submits that the allegation against the petitioner is different from that made against the co-accused –Sandeep Kumar Dey, against whom the entire criminal proceeding has been quashed. It is next submitted that the offence punishable under Section 379 of the Indian Penal Code is made out against the petitioner, as there is allegation that the petitioner along with the co-accused persons has committed theft of the road construction materials dumped by the complainant. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record as well as perusal of 3 Cr.M.P. No.260 of 2024 the record reveals that initially P.C.R. Case No.759 of 2012 was instituted by the complainant, which upon being referred to police under Section 156(3) Cr.P.C., Deoghar P.S. Case No. 410 of 2012 was registered. Police after investigation of the case submitted final form as only a civil dispute was made out and did not send up the petitioner for trial. After the protest petition was filed which was treated as a complaint, summons have been issued. 7. It is a settled principle of law, as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph no. 6 of which reads as under :- 6. Xxxx xxxx xxxx
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 29th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 6 Cr.M.P. No.260 of 2024