The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 858 of 2020 Amazon Seller Services Private Limited having its Registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, P.O. & P.S.- Malleshwaram (W), Dist.- Bangalore- 560055, State- Karnataka, India, through its authorised representative Mr. Prashant Kumar, aged 39 years, S/o Shri Ramji Prasad, R/o Ashiana Galaxy, Exhibition Road, P.O.- Patna GPO, P.S.- Exhibition Road, , Patna- 800001, State - Bihar ...... Petitioner Versus 1. The State of Jharkhand 2. Vikash Enterprises represented by its Proprietor, Rana Vikash S/o Shri Binod Kumar Singh, office and resident of 80, Cable Basti, P.O. & P.S.- Golmuri, Town- Jamshedpur, Dist.- East Singhbhum ….. Opposite Parties With Cr.M.P. No. 804 of 2020 Nitumani Goswami @ Nituman Goshwami, S/o Parameshwar Goswami, aged about 44 years, presently working as Senior Manager, Amazon Transportation Services Private Limited having its office at Amazon India, 8th Floor, B Block, Apeejay House, Near Park Hotel P.O. & P.S.- Park Street, Dist.- Kolkata, West Bengal- 700016 ...... Petitioner Versus 1. The State of Jharkhand 2. Vikash Enterprises represented by its Proprietor, Rana Vikash S/o Shri Binod Kumar Singh, office and resident of 80, Cable Basti, P.O. & P.S.- Golmuri, Town- Jamshedpur, Dist.- East Singhbhum ….. Opposite Parties For the Petitioners : Mr. Bharat Kumar , Adv. For the State : Mr. Sanjay Kr. Srivastava , Addl. PP (CrMP No. 858 of 2020) Ms. Nehala Sharmin, Spl. PP(CrMP No. 804 of 2020) : Mr. Shravan Kumar, Adv. For the O.P. No. 2 P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Facts
Heard the parties. 1 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 2. Since both these Criminal Miscellaneous Petitions have been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with common prayer, hence, both these criminal miscellaneous petitions are disposed by this common judgment. 3. Both these Criminal Miscellaneous Petitions have been filed with the prayer to quash the entire criminal proceeding as well as the order taking cognizance dated 20.01.2020 passed by learned JMFC, Jamshedpur in C/1 Case no. 2505 of 2019 by which, learned Magistrate, found prima facie case for the offences punishable under Sections 406 and 420 of IPC. 4. It is submitted by learned counsel for the petitioners that the allegation against the petitioner of CrMP No. 858 of 2020 who is the accused no. 1 of the complaint case and the petitioner of CrMP No. 804 of 2020 who is the accused no. 3 of the said complaint, is that the complainant invested Rs. 21,55,803/- on behalf of the accused no. 2 of the said case and deposited the same in the account of the petitioner of CrMP No. 858 of 2020, out of which Rs. 66,000/- was paid by the accused no. 2 of the said complaint case, to the complainant but the remaining amount was not returned. 5. Learned counsel for the petitioner relying upon the judgment on the judgment of the of Hon’ble Supreme Court of India in the case of Ravindranatha Bajpe vs. Mangalore Special Economic Zone Limited reported in (2022) 15 SCC 430 submits that for issuing the summons, learned Magistrate has to record its satisfaction regarding the role played by the officers of the company when the company is the accused. 6. Learned counsel for the petitioners next relies upon the judgment of the of Hon’ble Supreme Court of India in the case of Vishnu Kumar Shukla and Others vs. State of Uttar Pradesh and Others reported in 2023 SCCOnLine SC 1582 and submits that therein it has been reiterated by the Hon’ble Supreme Court of India that when the facts of the case, do not 2 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 give rise to grave suspicion, it would be unjustified for the accused person of the case to face a full-fledged criminal trial. 7. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Deepak Gaba and Others vs. State of Uttar Pradesh and Another reported in (2023) 3 SCC 423 and submits that a mere wrong demand or claim would not meet the conditions specified by Section 405 of the IPC in the absence of the evidence to establish entrustment, dishonest misappropriation, conversion or use or disposal, which action should be in violation of any direction of law or legal contract, touching the discharge of the trust and in that judgment, it has also been reiterated by the Hon’ble Supreme court of India that to constitute an offence of cheating under Section 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. Thus, the sine qua non to constitute the cheating is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements the offence of cheating would not be made out. 8. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.W. Palanitkar and Ors. vs. State of Bihar and Another reported in (2002) 1 SCC 241 and submits that in appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is necessary, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. 9. Learned counsel for the petitioners next relies upon the judgment on of Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. and Ors. vs. State of Uttar Pradesh and Anr. reported in 2024 SCC OnLine SC 2248 and wherein the Hon’ble Supreme Court of India has taken note of 3 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 the common practice in vogue for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.
Legal Reasoning
6. Xxxx xxxx xxxx 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 cannot amount to cheating. 13. Now coming to the facts of the case, there is no allegation against the petitioners of having played deception since the very inception. There is no allegation that petitioners induced 5 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 the complainant to part with any money, dishonestly or otherwise. 14. Under such circumstances, this court is of the considered view that as admittedly the money was deposited by the complainant at the behest of the co-accused of the petitioners, who is the accused no. 2 of the complainant; therefore, even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 15. So far as the offence punishable under Section 406 of IPC is concerned, it is the settled principle of law as has been held by the Hon’ble Supreme court of India in the case of Binod Kumar and others v. State of Bihar and another reported in (2014) 10 SCC 663, para 18 of which reads as under :-
Arguments
10. It is next submitted by learned counsel for the petitioners that the allegation against the petitioners are false and the petitioners have wrongfully been arrayed as accused persons, in the complaint and the complainant –opp. party no. 2 used to collect the cash on delivery amount and thereafter, used to deposit the amount in the bank account of 2 different firms as per the arrangement between the complainant and accused no.2 of the complainant and the complainant himself admits that he has deposited the money with the petitioner of CrMP No. 858 of 2020 on behalf of M/s Swastik Enterprises. It is further submitted that there is absolutely no allegation that the petitioner was anyway responsible for arrangement between the complainant and the accused no. 2. It is next submitted that since the cash amount was huge and there has been restriction upon depositing huge cash amount in one account, therefore, the cash on delivery money of the petitioner of the CrMP No. 858 of 2020 was deposited in two separate accounts i.e. the complainant firm’s account and the accused no. 2 firm’s account and thereafter the money was transferred to the petitioner of CrMP No. 858 of 2020 which is admitted by the complainant in the legal notice also. It is next submitted that thus in the absence of the any allegation of dishonest misappropriation against the petitioners of these two criminal miscellaneous petitions, the offence under Section 406 of the IPC is not made out and in the absence of any allegation of the playing any deception since inception against the petitioners, the offence punishable under Section 420 of IPC is also not made out. It is lastly submitted that therefore the continuation of criminal proceeding against the petitioners will put the 4 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 petitioners to unnecessary harassment, hence, it is submitted that the prayer as made in these criminal miscellaneous petitions be allowed. 11. Learned Addl. .P.P. in CrMP No. 858 of 2020 , learned Spl. PP in CrMP No. 804 of 2020 appearing for the State and learned counsel for the opp. party no. 2 on the other hand vehemently oppose the prayer, as prayed for in these Criminal Miscellaneous Petitions and submit that undisputedly the money has been deposited in the account of the petitioner of CrMP No. 858 of 2020 of which, the petitioner of CrMP No. 804 of 2020 is the Senior Manager but the said money has not been paid to the complainant, hence, the same constitutes the offences punishable under Sections 406 and 420 of IPC, hence, it is submitted that these Criminal Miscellaneous Petitions, being without any merit, be dismissed. 12. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is the settled principle of law as has been reiterated 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 :-
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 intention in misappropriating 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.” 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. It must also be shown that the accused dishonestly disposed of the same in some way or dishonestly retained the same. 16. According to the facts of the case, there is no allegation against the petitioners of dishonestly retaining or dishonestly disposing of the amount deposited by the complainant with the petitioners at the behest of the co-accused no. 2 of the complaint and it is the admitted case that in terms of business arrangement, the complainant deposits money with the petitioners. 6 Cr.M.P. Nos. 858 of 2020 with 804 of 2020 17. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out against the petitioners, therefore, the continuation of this criminal proceeding will amount to abuse of process of law and this is a fit case, where the entire criminal proceeding as well as the order taking cognizance dated 20.01.2020 passed by learned JMFC, Jamshedpur in C/1 Case no. 2505 of 2019 be quashed and set aside qua the petitioners. 18. Accordingly, the entire criminal proceeding as well as the order taking cognizance dated 20.01.2020 passed by learned JMFC, Jamshedpur in C/1 Case no. 2505 of 2019 is quashed and set aside qua the petitioners. 19. In the result, these Criminal Miscellaneous Petitions, is allowed. 20. In view of the disposal of these Criminal Miscellaneous Petitions, interim order, if any, passed earlier is vacated. 21. The Registry is directed to intimate the court concerned forthwith. High Court of Jharkhand, Ranchi Dated, the 29th August, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 7 Cr.M.P. Nos. 858 of 2020 with 804 of 2020