Gurucharan Sahu, aged about 65 years, S/o Late Shankar Sahu, Resident of Village –Boreya v. Resident of Village –Boreya, P.S. –Kanke, District -Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 484 of 2019 Gurucharan Sahu, aged about 65 years, S/o Late Shankar Sahu, Resident of Village –Boreya, P.O. –Boreya, P.S. –Kanke, District – Ranchi. .... Petitioner 1. State of Jharkhand 2. Sri Ranjeet Tiwari, aged about 37 years, S/o Ram Jiwan Tiwari, Versus Resident of Village –Boreya, P.S. –Kanke, District -Ranchi …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State By the Court:- : Mr. P.P.N. Roy, Sr. Advocate : Mr. Pandey A.N. Roy, Advocate : Ms. Pragati Prasad, Advocate : Mr. Santosh Kr. Shukla, Addl. P.P. ….. 1. 2. 3. Heard the parties. No one turns up on behalf of the opposite party no.2 in-spite of repeated calls even though notice has been validly served upon the opposite party no.2. 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 order taking cognizance dated 03.01.2019, passed in Complaint Case No. 3093 of 2018 whereby and where under the learned court below has found sufficient materials to proceed against the petitioner for having committed the offence punishable under Section 406 of the Indian Penal Code. Further, prayer has also been made to quash the entire criminal 1 Cr.M.P. No.484 of 2019 prosecution pending against the petitioner in Complaint Case No. 3093 of 2018. 4. The allegation against the petitioner is that the petitioner entered into an agreement for sale to sell 16 decimals of land and took an advance of Rs.1,00,000/- at the time of agreement and subsequently though the petitioner also took Rs.2,00,000/- but is not executing the sale deed. On the basis of the complaint, statement of the complainant on solemn affirmation and statement of the inquiry witnesses, the learned Judicial Magistrate found sufficient material to proceed against the petitioner for having committed the offence punishable under Section 406 of the Indian Penal Code vide order dated 03.01.2019 in Complaint Case No. 3093 of 2018. 5. The learned senior counsel for the petitioner relying upon the Judgment of Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. Vs. Jagnar Singh and Anr., reported in 2009 (4) JLJR (SC) 13, para-12 of which reads as under:- “12. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code. {See Ajay Mitra v. State of M.P.1 [(2003) 3 SCC 11]}.” (Emphasis supplied) 2 Cr.M.P. No.484 of 2019 Submits that it is a settled principle of law that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute an offence of cheating or criminal breach of trust. 6. It is next submitted by the learned senior counsel for the petitioner that the agreement was for a period of three years which has already expired and after that this complaint has been filed. It is next submitted that the dispute is essentially a civil dispute and this criminal case has been instituted only for the purpose of wrecking vengeance. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 7. The learned Additional Public Prosecutor on the other hand vehemently opposes the prayer as prayed for in this criminal miscellaneous petition and submits that on the basis of the allegation made in the complaint, the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioner. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that as has been reiterated by the Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. Vs. 3 Cr.M.P. No.484 of 2019 Jagnar Singh and Anr. (supra), that if the if the dispute between the parties is essentially a civil dispute resulting from a breach of contract on the part of the accused persons then the offence of criminal breach of trust will not be made out. 9. It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663, paragraph-18 of which reads as under :-
Decision
“18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” Emphasis supplied) in misappropriating intention That to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 4 Cr.M.P. No.484 of 2019 10. Now coming to the facts of the case, there is no allegation against the petitioner of dishonestly disposing of the advance amount taken by him or dishonestly retaining the same and the dispute between the parties is essentially a civil dispute of breach of contract. Under such circumstances, this Court is of the considered view that this criminal case has been instituted for the purpose of wrecking vengeance, hence continuation of this criminal case will amount to abuse of process of law; as even if the entire allegation made against the petitioner in the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. Therefore, this is a fit case where the order taking cognizance dated 03.01.2019, passed in Complaint Case No. 3093 of 2018 whereby and where under the learned court below has found sufficient materials to proceed against the petitioner for having committed the offence punishable under Section 406 of the Indian Penal Code as also the entire criminal prosecution pending against the petitioner in Complaint Case No. 3093 of 2018 be quashed and set aside. 11. Accordingly, the order taking cognizance dated 03.01.2019, passed in Complaint Case No. 3093 of 2018 whereby and where under the learned court below has found sufficient materials to 5 Cr.M.P. No.484 of 2019 proceed against the petitioner for having committed the offence punishable under Section 406 of the Indian Penal Code as also the entire criminal prosecution pending against the petitioner in Complaint Case No. 3093 of 2018 is quashed and set aside. 12. This criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 30th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 6 Cr.M.P. No.484 of 2019