Manoranjan Prasad Sinha … v. 1.The State of Jharkhand 2.Dilip Kumar 3.Kunal Kumar 4.Ravi Chaurasia
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 641 of 2019 Manoranjan Prasad Sinha …… Petitioner Versus 1.The State of Jharkhand 2.Dilip Kumar 3.Kunal Kumar 4.Ravi Chaurasia With Cr. Revision No. 414 of 2020 Dilip Kumar Versus 1.The State of Jharkhand 2.Manoranjan Prasad Sinha ------- ……. Opp. Parties …… Petitioner ……. Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD -------- For the Petitioner : In person (Cr.R.641/2019) : Mr. Shiv Kumar Singh, Advocate (Cr.R.414/2020) For the State : Mr. Anup Pawan Topno, APP (Cr.R.641/2019) : Mrs. Nehala Sharmin, Spl.PP (Cr.R.414/2020) For the O.P No.2 : In person (Cr.R.414/2020) : Mr. Shiv Kumar Singh, Advocate (Cr.R.641/2019) CAVon: 01.03.2024 Delivered on: 14.08.2024 ------- Both these Cr. Revision No.641 of 2019 and Cr. Revision No.414 of 2020 have been heard together and are being disposed of together, since, both have arisen out of common judgment dated 26.03.2019 passed by Sri Surendra Nath Mishra, learned Additional Judicial Commissioner-VI, Ranchi in Cr. Appeal No.249/2018 and Cr. Appeal No.257/2018 by which both the above Criminal Appeals have been dismissed affirming the judgment of conviction and order of sentence dated 03.08.2018 passed by Ms. Avanika Gautam, learned Judicial Magistrate, Ist Class, Ranchi by which the petitioner-Dilip Kumar (Cr. Revision No.414 of 2020) had been convicted for the offence 1 under Section 420 of IPC and one Ravi Chaurasia and one accused Kunal Kumar were convicted for the offence under Section 417 of IPC and the petitioner-Dilip Kumar (Cr. Revision No.414 of 2020) was sentenced to undergo R.I for one year and to pay the fine of Rs.3,000/- for the offence under Section 420 of IPC whereas said Ravi Chaurasia and Kunal Kumar were directed to pay fine of Rs.3,000/- and Rs.3,000/- for the offence under Section 417 of IPC. 2. The case of the complainant-petitioner Manoranjan Prasad Sinha, in brief, is that Dilip Kumar along with his two friends Kunal Kumar and Ravi Chaurasia offered him to purchase a land situated near Ratu Block. The land was shown to petitioner- Manoranjan Prasad Sinha and thereafter he had issued cheque to the informant in different dates bearing Cheque Nos.102, 103, 104, 105, 106, 107, 108 of different amounts. The accused-Dilip Kumar received total amount of Rs.8,90,000/- (Rs. Eight Lakh Ninety Thousand) through cheques handed over by the informant. After getting payment, the informant requested the accused-Dilip Kumar to get the land registered but he neither got the land registered nor the money was returned to him. After several requests only Rs.1,00,000 (Rs.One Lakh) was returned to him. It is further alleged that accused-Dilip Kumar had taken Rs.2,15,000/- from his friend Prabhat Kumar also on the pretext to sell the land. But he neither returned the money nor sold the land to him also. The O.P. No.2-Dilip Kumar (Cr. Revision No.641 of 2019) along with his two friends by making fraud, had got payment of Rs.8,90,000/- and also received Rs.2,15,000/- through his friend Prabhat Kumar. It is further alleged that O.P. No.2-Dilip Kumar (Cr. Revision No.641 of 2 2019) had given a cheque of Rs.2,15,000/ (Rs.Two Lakhs Fifteen Thousand) to Prabhat Kumar which was bounced also. On the basis of written application of the informant, the
Facts
FIR was lodged against the O.P. No.2-Dilip Kumar (Cr. Revision No.641 of 2019) and two other accused persons namely Kunal Kumar and Ravi Chourasia for the offence under sections 419, 420, 406 and 120B of IPC.
Legal Reasoning
respondent are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent.” 49. It has been held by Hon’ble Supreme Court in the case of Sarabjit Kaur vs. State of Punjab and Anr. reported in (2023) 5 SCC 360 at paragraphs 12 and 13 as follows:- “Para-12:- There is nothing on record to suggest that any notice was issued by Respondent 2 or the vendee to the appellant to get the sale deed registered just either before expiry of the last date fixed for execution of sale deed or immediately thereafter. No civil proceedings were also initiated rather Respondent 2 proceeded only by filing complaints with the police two of which were earlier filed. Had there been any civil proceedings initiated, the question of readiness and willingness of the vendee is also an aspect to be examined by the court. Para-13:- A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent 25 that the name of complaints the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, filed with the second complaint was the improved version making allegations against appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court.” It appears from the order sheet of Cr. Revision No.414 of 50. 2020 that a Co-ordinate Bench of this Court had granted bail to the petitioner-Dilip Kumar (Cr. Revision No.414 of 2020 and O.P. No.2 in Cr. Revision No.641 of 2019) on the ground that he has remained in custody for more than five months out of sentence period of one year and with the further condition that the petitioner-Dilip Kumar (Cr. Revision No.414 of 2020 and O.P. No.2 in Cr. Revision No.641 of 2019) shall deposit a Demand Draft of Rs.50,000/- in favour of the informant in the Court and fine amount of Rs.3,000/- and it was also clarified that deposit of amount will be without prejudice to defence of the petitioner and the disbursal of the amount will be subject to the outcome of the revision. 51. The informant is taking both steps, on the one hand he is lodging FIR after bouncing of cheque and on the other hand he has not taken recourse of N.I. Act for seeking compensation of the amount and thus, the informant cannot be given both the benefits. 52. On the other hand also Dilip Kumar (i.e. O.P. No.2 in Cr. Revision No.641 of 2019 and petitioner in Cr. Revision No.414 26 of 2020) has given Undertaking for returning Rs.12,00,000/- (Rs.Twelve Lakhs) and admitted for taking cheque of Rs.8,90,000/- (Rs.Eight Lakhs and Ninety Thousand) from the informant-Manoranjan Prasad Sinha (i.e. petitioner in Cr. Revision No.641 of 2019), but he also failed to get executed the sale deed of the land in question which did not belong to him rather the land belonged to some other person. Thus, the accused Dilip Kumar was aware and had received an amount of Rs.8,90,000/- (Rs.Eight Lakhs and Ninety Thousand) from the informant-Manoranjan Prasad Sinha but also Rs.2,15,000/- from one Prabhat Kumar and which amounts to cheating. Thus the offence under Section 420 IPC stands established against the accused Dilip Kumar (i.e. O.P. No.2 in Cr. Revision No.641 of 2019 and petitioner in Cr. Revision No.414 of 2020) as he had dishonestly induced the informant for delivering of Rs.8,90,000/- (Rs.Eight Lakhs and Ninety Thousand) and one Prabhat Kumar-P.W-1 for delivering of Rs.2,15,000/- for executing the sale deed in respect of the land which was neither in his name nor in his possession. 53. Under the circumstances, the Cr. Revision No.641 of 2019 is hereby dismissed. 54. In view of the discussion made above, Cr. Revision No.414 of 2020 is also dismissed with modification in sentence to the effect that the period undergone by the petitioner-Dilip Kumar during the jail custody shall be the period of sentence. (Sanjay Prasad, J.) Saket/- NAFR 27
Arguments
3. Heard Mr. Manoranjan Prasad Sinha, who appeared in person (petitioner in Cr. Revision No.641/2019 and the O.P. No.2 in Cr. Revision No.414/2020), Mr. Anup Pawan Topno, learned APP (Cr. Revision No.641/2019) and Mrs. Nehala Sharmin, learned Spl. PP (Cr. Revision No.414/2020) and Mr. Shiv Kumar Singh, learned counsel appeared for the petitioner- Dilip Kumar (in Cr. Revision No.414/2020) and O.P. No.2 (in Cr. Revision No.641/2019). 4. It is submitted by the petitioner-Manoranjan Prasad Sinha (Cr. Revision No.641/2019), who has appeared in person that the impugned judgment dated 26.03.2019 passed in Cr. Appeal No.257 of 2018 by the learned Appellate Court is illegal and arbitrary. It is submitted that the learned Appellate Court has committed grave illegality by dismissing the appeal filed on behalf of the informant-petitioner. It is submitted that the learned Courts below although arrived at a conclusion that both the accused Kunal Kumar and Ravi Chaurasia had fraudulent and dishonest intention but both the accused had not been convicted for the offence under Section 420 of IPC. It is submitted that learned Courts below failed to appreciate the fact that all the three accused persons with common intention had cheated the informant petitioner by illegally taking the money by convincing and inducing the petitioner by showing a wrong 3 piece of land and hence they assisted the accused Dilip Kumar (i.e. O.P. No.2 in Cr. Rev. No.641/2019) to obtain money from petitioner and Prabhat Kumar but the accused persons have not been convicted under Section 120B of IPC. It is submitted that the learned Court below has not granted any compensation to the petitioner under Section 357 (3) of Cr.P.C against Rs.Three Lakh Ten Thousand which is not paid by the accused Dilip Kumar to the petitioner. It is submitted that the learned Court below viewed the case on a wrong angle and came into an erroneous finding that the accused persons has returned back the money to the petitioner and he has filed the appeal for interest amount. 5. It is submitted that the learned Appellate Court below failed to appreciate that the O.P. No.2-Dilip Kumar is the main accused person and he alongwith O.P. No.3 and O.P. No.4 namely Kunal Kumar and Ravi Chaurasia had shown the land which was not even in their names for cheating him. It is submitted that all the three accused persons i.e. O.P. Nos.2, 3 and 4 were the business partners. It is submitted that one Narayan Teli was the actual owner of the land in question which was shown to the petitioner. However, the informant-petitioner was shown the land by the O.P. Nos.2, 3 and 4 and as the land does not belong to them and hence it is a case of cheating. It is submitted that had the O.P. No.2 be the owner of the land then this can be a case of breach of agreement but this is a clear-cut case of cheating. It is submitted that the cheques were handed over by the petitioner and one Prabhat Kumar to Dilip Kumar- O.P. No.2. However, no amount was returned to him till the order was passed by the High Court at the time of granting bail to the O.P. No.2 on 09.06.2020. It is evident from Exhibit-1 that 4 O.P. No.2 had admitted for taking Rs.8.90,000/- from the petitioner. It is submitted that vide Undertaking dated 04.02.2010 (i.e. Exhibit-2) the O.P. No.2-Deilip Kumar had admitted to pay further Rs.3.10 Lakhs and hence the Courts below have committed error by giving lesser punishment to the O.P. No.2-Dilip Kumar and his partners Kunal Kumar and Ravi Chourasia. It is further submitted that even D.W-1-Dilip Kumar had admitted during his evidence at para 10 and 11 for returning Rs.12,00,000/- (Rs.Twelve Lakhs) to the petitioner. It is submitted that P.W-1 is the petitioner himself and he had fully supported his case whereas P.W-3 is the Counsellor of Ward No.3 and he had also supported the case of the petitioner and stated during his evidence that neither the land was given nor money was returned to the petitioner and P.W-3 was witness on the point of handing over money by the petitioner to the O.P. No.2-Dilip Kumar. It is submitted that even P.W-3 has supported during his evidence that accused persons have got several criminal antecedents bearing Acquittal Appeal No.2 of 2014, Acquittal Appeal No.4 of 2014, Complaint Case No.1899 of 2012, S.T. No.336 of 2020 and therefore, it is evident that O.P. Nos.2, 3 and 4 have cheated the petitioner and several other persons. It is submitted that no document was shown and exhibited to prove inducement of the land sale. It is submitted that two accused persons Kunal Kumar and Ravi Chaurasia (i.e. O.P. Nos.3 and 4) have wrongly been acquitted under Section 420 and 120-B of the IPC and they should have been convicted for the offence under Section 120-B read with Section 420 of I.P.C. 6. In support of his contention, the petitioner has relied upon the following judgments which are as follows:- 5 (i) 2013 (3) JBCJ 73, (ii) (2019) 9 SCC 677 (para-3 and 8 to 11), (iii) AIR 2018 SC 4780 (Para 32, 33 and 34), (iv) 1980 Suppl. (2) SCR 571 (Para-5), (v) 2022 LiveLaw 305 (Para 27 to 32) and (vi) 2023 (3) JBCJ 100 (SC) Para-24. Therefore, this Criminal Revision Application may be allowed and the conviction of the O.P. No.2 for the offence under Section 420 of I.P.C may be upheld and O.P. No.3 and O.P. No.4 may be convicted for the offence under Section 120-B read with 420 of IPC. 7. On the other hand, learned APP has submitted that the impugned judgment passed by the Appellate Court and Trial Court below are fit and proper and no interference is required. It is submitted that the learned Courts below have appreciated the evidence of both the sides and considered the documents filed by both the sides and as such both the Criminal Revision Application may be dismissed. Submission in Cr. Rev. No.414/2020 8. On the other hand, learned counsel for the O.P. No.2 (Cr. Revision No.641/2019 and the petitioner in Cr. Revision No.414/2020) has submitted that the judgments of the learned Appellate Court below and the Trial Court are illegal, arbitrary and fit to be set aside. It is submitted that the informant has falsely implicated the O.P. No.2 to O.P. No.4. It is submitted that this is a case of civil dispute. It is submitted that no case of cheque bounce was filed by the petitioner-Manoranjan Prasad Sinha. It is submitted that it is mere admission on behalf of the O.P. No.2 for returning Rs.11,00,000/- (Rs. Eleven Lakhs). It is 6 submitted that O.P. No.2 has returned Rs.8,90,000/- to the petitioner. It is submitted that O.P. No.2 has already made part payment and as such this is not a case of cheating and criminal breach of trust. It is submitted that no document was exhibited to show that the O.P. No.2 had induced the petitioner to sell the land in question. It is submitted that no documents of landed property was filed before the learned Court below and even the name of land owner of the land is not mentioned in the FIR. It is submitted that there is no witness to prove that the petitioner had paid the amount to O.P. No.2 except Exhibit-1 which was written due to pressure of the police. It is submitted that evidence of P.W-1, P.W-2 and P.W-3 namely Prabhat Kumar, Manoranjan Prasad Sinha and Krishan Mohan Singh are not reliable and the learned Courts below have committed illegality by relying upon the evidence of P.W-1, P.W-2 and P.W-3. It is submitted that the evidence of D.W-1 namely Dilip Kumar was not considered by the learned Courts below. Learned counsel for the O.P. No.2 has submitted that it is a case of criminal breach of agreement but not a case of criminal breach of contract. 9. In support of his contention, learned counsel for the O.P. No.2 has placed reliance upon the following judgments which are as follows: (i) (2010) 6 SCC 562 (?) (ii) AIR 2018 SC 4780 (Para 32, 33 and 34) 10. It is submitted that proper questions were not asked from the O.P. No.2 by the learned Court below while examining him under Section 313 Cr.P.C. In support of his contention, the O.P. No.2 has relied upon the judgment reported in (2003) 2 SCC 401 (para-14). 7 Hence this Criminal Revision no.641/2019 may be dismissed and Cr. Revision no.414/2020 may be allowed and the judgment of conviction and order of sentence passed by the learned Appellate Court below may be set aside and the petitioner Dilip Kumar (Cr. Revision No.414/2020) may be acquitted. 11. It transpires from the FIR that the informant-Manoranjan Prasad Singh had submitted written application to the Officer in- charge, Dhurwa Police Station on 27.06.2010 stating therein that he had handed over Rs.8.90,000/- to the accused O.P.No.2 by different cheque number on 17.09.2008, 25.11.2008, 01.12.2008, 16.12.2008, 03.01.2009, 12.10.2008 respectively and again on 03.01.2009 by different Banks. However, neither land was registered in his name but has returned Rs.1,00,000/- (Rs.One Lakh) only and refused to return the remaining amount. It is alleged that the land, which was shown to him, was neither in the name of O.P. No.2 nor there was an agreement in his name nor there was any Registry. He also alleged that O.P. No.2-Dilip Kumar had also taken Rs.2,50,000/- from his friend Prabhat Kumar. It is alleged that O.P. No.2 had given cheque of Rs.2,50,000/- to Prabhat Kumar which was dishonoured. 12. It transpires that the police, after investigation had submitted charge sheet against the O.P. Nos.2, 3 and 4 (Cr. Rev. No.641/2019) for the offences under Sections 419/420/406/120B of the IPC on 16.08.2010 before the learned C.J.M, Ranchi and the learned CJM, Ranchi had taken cognizance against the O.P. Nos.2, 3 and 4 under Sections 419/420/406/120B of the IPC on 16.08.2010. 13. After supplying the police papers to the O.P. Nos.2, 3 and 4 (Cr. Revision No.641/2019), charges were framed against the 8 O.P. Nos.2, 3 and 4 for the offences under Sections 419/420/406/120B of the IPC on 22.04.2015 by Sri Chandra Bhanu Kumar then learned Judicial Magistrate, Ist Class, Ranchi and to which they pleaded not guilty and claimed to be tried. 14. During trial, the prosecution had got examined four (04) witnesses in support of its case, who are as follows:- (i) (ii) (iii) (iv) P.W-1 is Prabhat Kumar, P.W-2 is Manoranjan Prasad Sinha i.e. the Informant, P.W-3 is Krishan Mohan Singh and P.W-4 is Md. Izhar Khan i.e. the Investigating Officer. 15. The prosecution had proved the following documents as the Exhibits which are as follows:- (i) (ii) (iii) (iv) (v) (vi) Exhibit-1 is the Undertaking, Exhibit-2 is compromise held on 04.02.2010, Exhibit-3 and 3/1 are application for Khatiyan in the handwriting of Dilip Singh Exhibit-4 is the written report, Exhibit-4/1 is endorsement on FIR and Exhibit-5 is the Formal FIR. 16. Thereafter the O.P. Nos.2, 3 and 4 (Cr. Revision No.641/2019) were examined under section 313 Cr.P.C on 15.07.2017 by the learned Court below and to which they denied the circumstances put forth before them. 17. The O.P. No.2 (defence) in support of his case, had got examined one (01) witness namely Dilip Kumar as D.W-1 under Section 315 Cr.P.C. 18. The defence in support of his case, had got marked receipt of Rs.50,000/- as Exhibit-A which was given by the accused O.P. No.2 to the informant. 19. Thereafter, the learned Trial Court below had convicted the O.P. No.2 for the offence under Section 420 of the IPC and sentence him to undergo RI for one (01) year and to pay the fine 9 of Rs.3,000/-. However, the learned Trial Court had acquitted the O.P. No.2 for the offence under Section 120-B of the IPC. 20. It further transpires that the learned Court below has acquitted the O.P. No.2, 3 and 4-Dilip Kumar, Kunal Kumar and Ravi Chaurasia (Cr. Rev. No.641/2019) for the offences under Sections 406/419/120-B of the IPC. However, the learned Trial Court had convicted the accused-O.P. No.3 and O.P. No.4 namely Kunal Kumar and Ravi Chaurasia for the offence under Section 417 of the IPC and sentenced them to pay the fine of Rs.3,000/- and in default of payment fine they were directed to undergo S.I for two months each. 21. It transpires that O.P. Nos.3 and 4 namely Kunal Kumar and Ravi Chaurasia (Cr. Rev. No.641/2019) have deposited the fine of Rs.3,000/- each before the learned Trial Court below and they appears to have not preferred any Revision Application. 22. It further transpires that the Informant-petitioner had preferred Cr. Appeal No.257 of 2018 whereas O.P. No.2 had filed Cr. Appeal No.249 of 2018 before the learned Judicial Commissioner, Ranchi and both the appeals were heard and dismissed by Sri Surendra Nath Mishra, learned Additional Judicial Commissioner-VI, Ranchi vide judgment dated 26.05.2019 and hence the above Criminal Revision Applications. 23. From the pleading of the Criminal Revision No.641 of 2019, it would appear that vague pleadings have been made with regard to acquittal of O.P. Nos.2, 3 and 4 under Section 120-B of the I.P.C. 24. It is evident that there is concurrent finding of fact and the conviction of the petitioner-Dilip Kumar (Cr. Revision No.414/2020) under Section 420 of IPC has been upheld by the 10 learned Trial Court as well as learned Appellate Court below. However, petitioner-Manoranjan Prasad Sinha (Cr. Revision No.641/2019) has mainly challenged the impugned judgment of the learned Appellate Court below on the ground that he has not been paid interest of Rs.3,10,000/- (Rs.Three Lakhs Ten Thousand). 25. As both the learned Courts below have upheld the conviction of the petitioner-Dilip Kumar (Cr. Revision No.414/2020) for the offence under Section 420 of the IPC, this Court has to examine the legality and propriety of the judgment. 26. It is also admitted fact from Exhibit-2 and evidence of P.W-2 that O.P. No.2-Dilip Kumar had handed over Rs.50,000/- to the petitioner on 06.07.2009 and further Rs.50,000/- total Rs.1,00,000/- (Rs.One lakh) on 04.02.2010 (i.e. Exhibit-2) in the Police Station. Although he had admitted for giving cheque of Rs.8,85,000/- (Rs.Eight Lakh Eighty Five Thousand) to the petitioner-Manoranjan Prasad Singh and Cheque of Rs.2,15,000/- (Rs.Two Lakh Fifteen Thousand) to one Prabhat Kumar, witness of the FIR. He had given undertaking in writing to return remaining Rs.11,00,000/- (Rs.Eleven Lakhs) by 20.07.2010. However, the FIR was lodged on 27.06.2010 by the informant. 27. From scrutinizing the evidence of informant-P.W-2, it would appear that he had paid cheque amount of Rs.8,90,000/- (Rs.Eight Lakh Ninety Thousand) to the O.P. No.2-Dilip Kumar on different dates and he was induced by the O.P. No.2, 3 and 4 (Cr. Revision No.641/2019) for selling land situated at Ratu, Ranchi. He has admitted that he had given cheque to Dilip Kumar on the instruction of Kunal Kumar and Ravi Chaurasia with the assurance that they will get the land registered in his 11 name but they failed to do so. He stated that a written settlement was made between both the sides on 06.07.2009 in which the accused persons agreed to pay Rs.12,00,000/- (Rs.Twelve Lakhs) with interest and for which, he was paid Rs.One lakh towards the interest by the accused persons. He further stated that the cheque of Rs.8.85 Lakhs was issued against them had bounced whereas cheque of Rs.2.15 Lakh issued against Prabhat Kumar was also bounced and the accused has failed to pay the amount. Thereafter a compromise was done on 06.07.2009 marked as Exhibit-1 containing the signature of the informant as well as O.P. Nos.2, 3 and 4. He has further proved the computerized agreement dated 04.02.2010 containing the signature of Dilip Kumar and the Informant which was marked as Exhibit-2. He also proved the application for obtaining Khatiyan marked as Exhibit-4 and he proved signature of Dilip Kumar on application marked as Exhibit-3 and Exhibit-3/1. 28. During cross-examinaiton, he admitted that Khata Number and Plot Number and Boundary Number of the land has not been mentioned in the agreement. He also admitted that as per agreement made on 04.02.2010 Dilip Kumar (i.e.O.P. No.2) had agreed to pay Rs.11,00,000/- (Rs. Eleven Lakh) by 20.07.2010 by paying the amount in question month to month but they were not in a position to pay even after 20.07.2010 and hence he has filed this case. He further also stated that accused persons had refused to pay the amount and hence he has filed this case. 29. During further cross-examination, he stated that he had instituted one another FIR also. He also admitted to have received Rs.7,90,000/- (Rs.Seven Lakh Ninety Thousand) by the order of the High Court. 12 He admitted his signature on paper in his writing and signature marked as Exhibit-A showing payment of Rs.50,000/- by the accused-Dilip Kumer to the petitioner. 30. Thus, from scrutinizing the evidence of P.W-2 (i.e. the informant), it is evident that after lodging of the FIR, he had received Rs.7,90,000/- (Rs.Seven Lakh Ninety Thousand) from the O.P. No.2-Dilip Kumar on the direction of the High Court of Jharkhand, Ranchi and prior to this he had also received Rs.One Lakh from the O.P. No.2 which is evident by the settlement dated 04.02.2010 marked as Exhibit-2. 31. P.W-1 is Prabhat Kuamr and he is also one of the victim as per FIR lodged against the accused. He stated during his evidence that he was also induced by O.P. Nos.2, 3 and 4 namely Dilip Kumar, Kunal Kumar and Ravi Chaurasia and a land at Ratu Block was shown and he had also paid total Rs.2,15,000/- (Rs.Two Lakhs Fifteen Thousand) to the O.P. No.2 in presence of O.P. Nos.3 and 4 in the house of petitioner- Manoranjan Prasad Sinha. However, neither the land was registered nor the money was returned to him. Thereafter on persuasion O.P. No.2 had issued cheque of Rs.2,15,000/- dated 30.06.2010 and cheque of Rs.8,85,000/- dated 20.07.2010 in the name of petitioner-Manoranjan Prasad Singh. However, both the cheques containing the signature of Dilip Kumar had bounced. He has also proved the agreement dated 06.07.2009 and his signature was marked as ‘X’ for identification. He further proved signature of Dilip Kumar on Cheque No.158470 of UCO Bank marked as ‘Y’ for identification. He admitted in para 16 of his cross-examination that the petitioner Manoranjan Prasad Sinha has received Rs.8,90,000/- by the order of the Court. 13 32. Thus, from the evidence of P.W-1, it is evident that a sum of Rs.8,90,000/- (Rs.Eight Lakhs Ninety Thousand) was returned to the petitioner Manoranjan Prasad Sinha and Rs.One lakh was also refunded by the accused-O.P. No.2 although his answer is vague in cross-examination. 33. P.W-3 is one Krishna Mohan Singh, who is a Transporter and Businessman and has supported the case of the informant- P.W-2 and witness-P.W-1. He had advised the parties to make settlement. During cross-examination, he admitted for not putting his signature in the agreement made at the Police Station. He has shown ignorance about returning of the amount to the petitioner by the order of the High Court. This witness P.W-3 was further cross-examined on recall after allowing petition under Section 311 Cr.P.C on behalf of the O.P. Nos.3 and 4 and he admitted that the accused persons had not taken any money from the informant during his presence. However, he admitted that there was compromise in Dhurwa Police Station between both the sides during his presence and the compromise letter was prepared in which he had also signed. 34. Thus, it is evident that P.W-3 is witness on the point of transaction of party but he was not the eye witness of receiving money from anyone and hence the evidence of P.W-3 is not reliable. 35. P.W-4 is Investigation Officer of this case, who had stated that an agreement was entered between the informant and the O.P. Nos.2, 3 and 4 and cheques were issued which were bounced. After taking over investigation, he had arrested the O.P. No.2-Dilip Kumar on 29.06.2010. He had verified the Bank Account of the issued cheques and found that there was no 14 money in the Bank Account of the accused-Dilip Kumar. He also stated that O.P. Nos.3 and 4 namely Kunal Kumar and Ravi Chaurasia had surrendered before the Court below on 26.07.2010. He had submitted charge sheet under Sections 419, 420 and 406/120B of the IPC against the accused persons. He proved the endorsement on FIR as Exhibit-4/1 and Formal FIR as Exhibit-5. During cross-examination, he also stated that accused persons had received Rs.8,90,000/- by cheque and Rs.1,00,000/- was also returned by the accused to the informant. The informant had not disclosed the Plot Number, Mouza Number of the land in the FIR. He also stated that accused persons had admitted their guilt in the Police Station. However, he has not recorded the defence statement of the accused persons. Thus, the evidence of P.W-4 is like a formal witness and who is I.O of this case, however, he had find the allegation true against the O.P. Nos.2 to 4. 36. So far as documentary evidence is concerned, Exhibit-1 is the Undertaking given by the O.P. No.2. Exhibit-2 is the compromise held between the petitioner- Manoranjan Prasad Sinha and the O.P. No.2-Dilip Kumar on 04.02.2010. Exhibit-3 and Exhibit3/1 are application for Khatiyan in the handwriting of Dilip Singh. Exhibit-4 is the written report and Exhibit-4/1 is the endorsement on FIR. Exhibit-5 is the formal FIR dated 27.06.2010. 37. So far as defence witness is concerned, D.W-1 Dilip Kumar examined under Section 315 Cr.P.C., has stated that both the sides were acquainted. He stated that there was no agreement 15 with the petitioner-Manoranjan Prasad Sinha with regard to the land and he had not taken any amount from the petitioner- Manoranjan Prasad Sinha with regard to the land. He also stated that after FIR he had returned Rs.8,90,000/- to the informant and out of which Rs.1,00,000/- was given prior to institution of FIR and Rs.7,90,000/- was deposited in the Court and the order sheet dated 07.05.2013 of the Court below reveals that the said amount has been released in favour of the informant on 12.07.2013. He also stated that apart from Rs.8,90,000/- he had also returned Rs.50,000/- to the informant vide receipt marked as Exhibit-A and he had also paid Rs.50,000/- to the informant on 06.07.2009 and thus, there is no dues against the informant. During cross-examination, he stated for returning Rs.8,90,000/- to the informant. However, he also admitted for returning the amount to Manorajan Prasad in six months. Thus, from the evidence of D.W-1, it would appear that he had returned Rs.8,90,000/- to the Informant. 38. Thus, from the evidence of the parties, it is clear that the entire amount of the Informant in question was returned to the informant by the accused. 39. It further transpires from the record that while this Criminal Revision was fixed for hearing on 24.09.2020 then at that time no notice was issued to the O.P. No.2 to enhance the sentence as well as fine of the Opposite Parties No.2 to 4 by convicting them in appropriate section. 40. It transpires that even the case was listed for hearing on 03.12.2020, 03.03.2021 before the Co-ordinate Bench of this Court and on that date also no notice for enhancement of the sentence and fine was issued to the O.P. Nos.2 to 4. Therefore, it will not be proper at this stage to issue notice to the O.P. Nos.2 16 to 4 for enhancement of the sentence and fine imposed upon them by the learned Trial Court below i.e. the Court of Ms. Avanika Gautam, learned Judicial Magistrate, Ist Class, Ranchi as well as the learned Appellate Court. 41. So far as judgment passed in the case of Hari Kishan and State of Haryana vs. Sukhbir Singh and others reported in AIR 1988 SC 2127 is concerned, the same is not applicable on the facts and circumstances of this case, as it relates to mainly on the point of conviction for the offence under Section 307 IPC in the fight arising out of certain quarrel. However, in the said case, the compensation, which was awarded to the victim, was enhanced from Rs.25,00/- to 50,000/- to the injured Jogendra who was seriously injured in the incident. However, in the above case, no injury was caused to the informant. 42. It also appears that the informant-P.W-2 had presented the cheque in the Bank of Rs.8,90,000/- which has bounced but instead of filing case under the provision of N.I. Act, he has lodged the FIR and thus the compensation cannot be granted to the informant and hence the above judgment is not applicable. 43. It has been held in the case of Dr. Lakshman vs. State of Karnataka and Ors. reported in (2019) 9 SCC 677 at para-3 and 8 to 11 as follows:- the that respondent-accused made “Para-3:- The first complaint dated 29-4-2013 was filed alleging a representation that they are owners and are absolutely seized and possessed of land at Ballur Village, Attibele Hobli, Anekal Taluk and promised to procure an extent of 70 ac of land and entered into an agreement with the appellant complainant on 26-9-2012 and received an amount of Rs 9 crores (Rupees nine crores) by way of cheques and demand drafts. It is alleged that the extent and survey numbers of land mentioned in the schedule 17 appended to the memorandum of understanding (MoU) were to be procured in favour of the complainant. It was further pleaded that there were two cheques issued by the accused as security for the amount of advance paid by the appellant complainant. It was the case of the complainant that subsequent to agreement dated 26-9-2012, the respondent-accused having failed to perform the contract in terms of agreement, have entered into another MoU on 8-11-2012, representing that they are in possession of 70 ac of agricultural land and 30 ac of converted land and they promised to transfer such land in favour of the appellant. To the MoU dated 8-11-2012, M/s Sri Sai Developers was added as a party. As per the complaint, there is also a schedule indicating the survey numbers and extent of lands to the second MoU. In the complaint filed on 29-4-2013 it was alleged that though the respondents have already sold the land covered by Survey Nos. 115 and 117 to M/s Sri Sai Developers on 7-6-2012, with a dishonest intention the respondents have played fraud and cheated the appellant by receiving huge sum of Rs 9 crores (Rupees nine crores), by including the lands covered by Survey Nos. 115 and 117 also. Further alleging that when the demand was made to comply with the terms of the contract, the respondents have threatened the complainant, as such the respondents are liable to be punished for the offences under Sections 403, 406, 420, 506-B IPC. Para-8:- It is not seriously disputed by the parties with regard to the entering of the agreements for procuring the land in favour of the appellant in Ballur Village, Anekal Taluk, Bangalore Urban District and the respondents have received the amount of Rs. 9 crores by way of demand drafts and cheques. It is the specific case of the appellant that there are schedules mentioned to the agreements as per which the respondents have agreed to procure the land covered by Survey Nos. 115 and 117 of Ballur Village apart from other lands. In a petition under Section 482 CrPC it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. Merely on the ground that there is no pagination in the schedule, the the High Court has disbelieved such schedule agreements. It is the specific case of the appellant that the lands covered by Survey Nos. 115 and 117 of Ballur to 18 Village were sold even prior to the first agreement, as such the respondents have committed an act of cheating. It is also the specific case of the appellant that two cheques were issued by the respondent-accused by way of security for the amount of Rs 9 crores which is advance but the account of such cheques was closed even prior to entering into the agreement itself. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos. 115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section 138 of the NI Act by itself is no ground to quash the proceedings in the complaints filed by the appellant herein. When cheating and criminal conspiracy are alleged against the accused, for advancing a huge sum of Rs 9 crores, it is a matter which is to be tried, but at the same time the High Court has entered into the disputed area, at the stage of considering the petitions filed under Section 482 CrPC. It is fairly well settled that power under Section 482 CrPC is to be exercised sparingly when the case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process. Whether any schedules were appended to the agreement or not, a finding is required to be recorded after full- fledged trial. Further, as the contract is for the purpose of procuring the land, as such the same is of civil nature, as held by the High Court, is also no ground for quashing. Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the other side for the offences alleged. Equally, mere filing of a suit or complaint filed under Section 138 of the NI Act, 1881 by itself is no ground to quash the proceedings. While considering the petition under Section 482 CrPC, we are of the view that the High Court also committed an error that there is a novation of the contract in view of the subsequent agreement entered into on 8-11-2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482 CrPC. 19 learned counsel also relied on Para-9:- The learned Senior Counsel Shri R. Basant appearing for the accused, in support of his case, relied on the judgment of this Court in S.W. Palanitkar v. State of Bihar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] and submitted that every breach of contract may not result in a penal offence, but in the very same judgment, this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint, etc. In the case on hand, it is clearly alleged that even before entering into the agreement dated 26-9- 2012, lands were already sold to third party, which were agreed to be procured in favour of the appellant. Not only that, it is the specific allegation of the complainant that the cheques were issued towards security from the account which was also closed much earlier to the date of agreement itself. Para-10:- The the judgment in Anil Mahajan v. Bhor Industries Ltd. [Anil Mahajan v. Bhor Industries Ltd., (2005) 10 SCC 228 : (2006) 1 SCC (Cri) 746] but in the very same judgment it is also held that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. In another case relied on by the learned counsel viz. Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] this Court has reiterated the scope of power of the High Court under Section 482 CrPC. Having regard to the facts of the case, we are of the view that the said judgments relied on by the learned counsel would not support the case of the respondents. It is also to be noticed that in the complaint filed in PCR No. 14420 of 2015, investigation has been completed and charge-sheet was also filed on 22-12-2015. Para-11:- For the aforesaid reasons, we are of the view that the High Court has committed an error in allowing the petitions filed under Section 482 CrPC by the respondent-accused. Accordingly, these criminal appeals 20 are allowed and the impugned common order dated 28-4- 2017 [Pramila Santhosh v. State of Karnataka, 2017 SCC OnLine Kar 4257] passed by the High Court of Karnataka at Bengaluru is set aside. It is made clear that the findings recorded in this judgment are confined only for these appeals and the same cannot be construed as an expression of opinion on merits of the matter and it is open for the trial court to proceed in accordance with law and decide the complaints on their own merits.” The above case is not applicable in the case of the informant rather it is in favour of the O.P. No.2 as in the above case the High Court had quashed the proceeding under Section 482 Cr.P.C with regard to serious offence. In the above case, full trial had taken place. 44. It has been held in the case of Vijay Kumar Ghai and Ors. vs. The State of West Bengal and Ors. reported in (2022) 7 SCC 124 at para-31 to 36 as follows:- “Para-31:- Section 415 of IPC defines “cheating” which reads as under: “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person 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”.” The essential ingredients of the offence of cheating are: 1. Deception of any person 2. (a) Fraudulently or dishonestly inducing that person— (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act or omission causes or is likely to 21 ingredient of cause damage or harm to that person in body, mind, reputation or property. Para-32:- A fraudulent or dishonest inducement is an essential the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. Para-33:- Section 420 IPC defines “cheating and dishonestly inducing delivery of property” which reads as under: “420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Para-34:- Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine. Para-35:- To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved: (i) The representation made by the person was false. (ii) The accused had prior knowledge that representation he made was false. (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. Para-36:- As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows: the 22 (i) a person must commit the offence of cheating under Section 415; and (ii) the person cheated must be dishonestly induced to: (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.” It appears that the above judgment is also not applicable in the case of the Informant-petitioner rather it helps the O.P. No.2. 45. It has been held in the case of Dipak Ranjan and Ors. vs. The State of Jharkhand and Anr. reported in 2013 (3) JBCJ 73 at para-14 and 15 as follows:- the first element necessary “Para-14:- Thus, for constituting offence of cheating is a „deception‟ of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? Para-15:- In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract.” The above judgment is also not applicable on the facts and in the circumstances of this case. 46. It has been held in the case of Bilal Hajar alias Abdul Hameed vs. State represented by Inspector of Police reported in AIR 2018 SC 4780 at para-32, 33 and 34 as follows:- to in order “Para-32:- Therefore, constitute a conspiracy, meeting of minds of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and 23 their presence other words, every detail of the conspiracy which is being hatched and nor is it necessary to prove their active part/role in such meeting. Para-33:- In and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to the public at large. Para-34:- It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the principle applicable for appreciating the circumstantial evidence for holding the accused guilty for commission of an offence. (See also Baldev Singh v. State of Punjab [Baldev Singh v. State of Punjab, (2009) 6 SCC 564 : (2009) 3 SCC (Cri) 66] .)” The above judgment is also not applicable as it relates to conviction of the accused in a criminal conspiracy for the offence under Section 302 IPC and which has been admitted by the consistent testimony of the witnesses. 47. However, in the above case, there is no witness on the point of taking money except Prabhat Kumar and P.W-3 is not the witness and his evidence reveals that settlement was made in the Police Station vide Exhibit-2 on 04.02.2010 which reflects the compromise had been made apparently under coercion of the police. 48. It has been held by Hon’ble Supreme Court in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 at paragraph 6 as follows:- “Para-6:-. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the 24 the against petitioner