The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 2564 of 2012 1. Mahesh Sharan 2. Jayant Nanda 3. R.K. Khanna @ Rakesh Kumar Khanna Versus ... .... Petitioners The State of Jharkhand & Anr. … … Opp. Parties CORAM:
Legal Reasoning
HON’BLE MR. JUSTICE R.R. PRASAD ----- For the Petitioners For the State For the O.P. No.2 ----- ----- : Mr. V.P. Singh, Sr. Advocate : APP : Mr. A.K. Dey, Advocate 04/24.10.2013. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State as well as Opp. Party No.2. This application has been filed for quashing of the entire criminal proceeding of Complaint Case No. C/1-3166 of 2012, including order dated 6th October, 2012, passed by the then learned Addl. Chief Judicial Magistrate, Jamshedpur, whereby and whereunder cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code has been taken against these petitioners. Mr. V.P. Singh, learned Senior Counsel appearing for the petitioners submits that it happened so that in the year 1992, the complainant and one Ram Surat Prasad, both convey drivers left factory premises of Tata Motors with the vehicles along with 87 numbers of Tool Box to get it reached to the different distributors. All the Tool Boxes got missing and, therefore, a case was registered against the complainant and Ram Surat Prasad. Thereafter charge sheet was submitted and they were put on trial but in the trial, they were acquitted in the year 1997 and, therefore, the complainant as well as Ram Surat Prasad put forth the claim of the amount on account of loss of wages for the period from 1993 to 1997 and it is said that these petitioners did agree for making payment of the amount but only part money was paid and when the rest of the money was not paid to the complainant, a complaint case was filed wherein cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code has been taken, though no such offences is made out, even accepting the allegation that in spite of promise being made by these petitioners, amount was not paid to the complainant as in that event, these petitioners can never be said to have deceived the complainant fraudulently and dishonestly rather simple case happened to be a case of breach of agreement, for which these petitioners cannot be prosecuted criminally and, therefore, entire criminal proceeding including order dated 6th October, 2012, taking cognizance, is fit to be quashed. As against this, learned counsel appearing for the complainant submits that from the averment made in para-5 of the complaint, it would appear that these petitioners have agreed to make payment of the amount of the compensation for the loss of the wages and even the part of the money was paid, but rest of the money was not paid and thereby, the petitioners can certainly be said to have committed offence of criminal breach of trust as well as cheating. It is also stated that in similar situation, when the amount agreed was not paid to Ram Surat Prasad, he lodged the case and during pendency of that case, entire money has been paid to him. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegations made in the complainant, does constitute offence of cheating and criminal breach of trust? The offence of cheating has been defined under Section 415 of the Indian Penal Code, which reads as follows:- Whoever, by deceiving any persons, “Cheating - fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat”. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. Applying the said principle, the petitioners, on account of non payment of agreed amount, cannot be said to have deceived the complainant fraudulently or dishonestly. Thus, I do find that necessary ingredients are lacking constituting offence of cheating. So far offence under Section 406 of the Indian Penal Code is concerned, that does not appear to have been made out against these petitioners. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code, which reads as follows:- “405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. 1. a person should have been entrusted with property or 2. 3. entrusted with dominion over property; that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” In the background of the allegation made in the complaint, I do not find it a case of criminal breach of trust, rather it is a pure case of breach of agreement, which could have been enforced in the competent court of civil jurisdiction. Under the circumstances, the entire criminal proceeding of Complaint Case No. C/1-3166 of 2012, including order dated 6th October, 2012, taking cognizance is, hereby, quashed
Decision
In the result, this application stands allowed. Ravi/ (R.R. Prasad, J.)