Kalpana Ray, aged about 42 years, W/o Sri Bijay Ray, R/o B-238, Road No.2 v. 1. The State of Jharkhand 2. Pankaj Kumar Sharma, S/o Sri Rameshwar Sharma, R/o
Case Details
1 Cr.M.P. No.1078 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1078 of 2022 Kalpana Ray, aged about 42 years, W/o Sri Bijay Ray, R/o B-238, Road No.2, Ashok Nagar, P.O. & P.S. –Argora, District –Ranchi. .... Petitioner Versus 1. The State of Jharkhand 2. Pankaj Kumar Sharma, S/o Sri Rameshwar Sharma, R/o Chutia, Amrawati Colony, P.O. & P.S. –Chutia, District –Ranchi. …. 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 : Mr. Abhijeet Kumar, Advocate : Mr. Binit Chandra, Advocate : M/s. Rishi Bharti, Advocate : Ashish Kr. Thakur, Advocate : Mr. V.K. Vashistha, Spl. P.P. : Mr. Kaushik Sarkhel, Advocate : Mr. Abhishek Singh, 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 Chutia P.S. Case No. 82 of 2021 registered for the offences punishable under Section 406/420 of the Indian Penal Code and also to quash the order dated 12.02.2021 by which the complaint filed by the complainant- informant was referred to police under Section 156(3) Cr.P.C. upon which Chutia P.S. Case No. 82 of 2021 has been registered. 3. The allegation against the petitioner is that the petitioner is the owner of a shop bearing no. 232 in Tirath Mansion, at 2 Cr.M.P. No.1078 of 2022 Ranchi. The complainant-informant approached the petitioner for purchase of the said land and paid the entire amount of Rs.7,00,000/-. The petitioner handed over the keys of the shop to the complainant-informant and promised that as and when required, she will transfer the shop by way of executing appropriate documents and registering the same but later on being approached by the complainant-informant, the petitioner is not executing the sale deed for transfer of title of the shop. 4. The learned counsel for the petitioner submits that even assuming for the sake of argument that the allegations made in the complaint which upon being referred to police under Section 156(3) Cr.P.C., the F.I.R. of this case has been registered, to be true in its entirety, still the offences punishable under Section 406 or 420 of the Indian Penal Code is not made out against the petitioner. 5. Relying upon the Judgment of this Court, passed in Cr.M.P. No. 2056 of 2021 dated 08.08.2023, in the case of Somnath Ghosh Vs. The State of Jharkhand & Anr., it is submitted by the learned counsel for the petitioner that therein, this Court relied upon the Judgment of Hon’ble Supreme Court of India, in the case of Deepak Gaba & Others Vs. State of Uttar Pradesh & Another, reported in (2023) 3 SCC 423, para -18 & 19 of which reads as under:- “18. In order to apply Section 420 IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415 IPC have to be satisfied. To constitute an offence of cheating under Section 415 IPC, a person should be induced, either fraudulently or 3 Cr.M.P. No.1078 of 2022 dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74: (2010) 3 SCC (Cri) 1201] 19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751: (2009) 3 SCC (Cri) 929 observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security..” (Emphasis supplied) and held that in the absence of fraudulence, dishonesty or intentional inducement, the offence punishable under Section 420 of the Indian Penal Code could not be made out. 6. The learned counsel for the petitioner next relies upon the Judgment of Hon’ble Supreme Court of India, in the case of Vijay Kumar Ghai & Ors. Vs. The State of West Bengal & Ors., reported in (2022) 7 SCC 124, para -38 & 39 of which reads as under:- 38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 Cr.M.P. No.1078 of 2022 4 SCC 168 : 2000 SCC (Cri) 786] , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants. 39. In Vesa Holdings (P) Ltd. v. State of Kerala [Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498] , this Court made the following observation : (SCC pp. 297-98, para 13) “13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show 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. In our view, the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed [Maniprasad v. State of Kerala, 2011 SCC OnLine Ker 4251] an error in refusing to exercise the power under Section 482CrPC to quash the proceedings.” And submits that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages and 5 Cr.M.P. No.1078 of 2022 as no dishonest or fraudulent intention of the petitioner has been alleged, hence the offence punishable under Section 406 of the Indian Penal Code is not made out, against the petitioner. Hence, it is submitted that the entire criminal proceeding initiated against the petitioner in connection with Chutia P.S. Case No. 82 of 2021 registered for the offences punishable under Section 406/420 of the Indian Penal Code being quashed and set aside and also the order dated 12.02.2021 by which the complaint filed by the complainant-informant was referred to police under Section 156(3) Cr.P.C. upon which Chutia P.S. Case No. 82 of 2021 has been registered, be quashed and set aside. 7. The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding initiated against the petitioner in connection with Chutia P.S. Case No. 82 of 2021 registered for the offences punishable under Section 406/420 of the Indian Penal Code and also to quash the order dated 12.02.2021 by which the complaint filed by the complainant- informant was referred to police under Section 156(3) Cr.P.C. upon which Chutia P.S. Case No. 82 of 2021 has been registered. It
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. 11. Now coming to the facts of the case, the allegation is that, the complainant-informant for purchasing the shop from the petitioner paid money to the petitioner and the petitioner handed over the keys of the shop and apparently, the complainant- informant enjoyed the same for a considerable period of time but later on the petitioner is not cooperating in execution of the sale deed for transfer of title. These allegations even if the same is 10 Cr.M.P. No.1078 of 2022 considered to be true in its entirety, in the considered opinion of this Court, do not show that the petitioner has any intention to cheat since the very inception of the transaction between the parties and this can be at best a case where the intention to cheat developed later on but the same is insufficient to constitute the offence punishable under Section 420 of the Indian Penal Code. 12. So far as the offence punishable under Section 406 of Indian Penal Code is concerned, it is a settled principle of law that in order to constitute the offence punishable under Section 406 of Indian Penal Code the following ingredients are to be established :- (i) Mens rea (ii) There must be dishonest misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract
Arguments
is next submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that there is averment in the complaint that the petitioner challenged the complainant and told him that the complainant is at liberty to do whatever he wants to do against them and the same amounts to an offence. 6 Cr.M.P. No.1078 of 2022 8. In support of his contention, the learned Spl. P.P. relies upon the Judgment of Hon’ble Supreme Court of India, in the case of Indian Oil Corpn. v. NEPC India Ltd., reported in (2006) 6 SCC 736, para -12(iv) & 12(v) of which reads as under:- “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are: (i) xxxxx (ii) xxxxx (iii) xxxxx (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts 7 Cr.M.P. No.1078 of 2022 which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” And submits that the verbatim reproduction of the legal ingredients of an offence is not a sine-qua-non and the quashment is possible only if the complaint is bereft of most necessary ingredients to constitute the offence and the availability of a civil remedy will not bar to continue with the criminal proceeding. 9. The learned Spl. P.P. next relied upon the Judgment of Hon’ble Supreme Court of India in the case of Prathibha Rani vs. Suraj Kumar, reported in (1985) 2 SCC 370, para -21 of which reads as under:- “21. After all how could any reasonable person expect a newly married woman living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing 8 Cr.M.P. No.1078 of 2022 the custody to a legal farce. On the other hand, it seems to us that even if the personal property of the wife is jointly kept, it would be deemed to be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of Section 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.” And submits that there are a large number of cases in which besides the civil dispute, a criminal case is also made out. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9 Cr.M.P. No.1078 of 2022 10. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that 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
(iii) The accused dishonestly used or disposed of the property 13. After going through the materials in the record, this Court has no hesitation in holding that there is absolutely no allegation against the petitioner of any misappropriation of the property and the only allegation is that, so far the petitioner has not executed the sale deed. This, in the considered opinion of this Court is not sufficient to constitute the offence punishable under Section 406 of the Indian Penal Code either and the dispute between the parties is basically a civil dispute and a cloak of criminal case is being given to the purely civil dispute between the parties. Hence, this Court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of 11 Cr.M.P. No.1078 of 2022 process of law. Therefore, in the considered opinion of this Court, this is a fit case where the entire criminal proceeding initiated against the petitioner in connection with Chutia P.S. Case No. 82 of 2021 registered for the offences punishable under Section 406/420 of the Indian Penal Code be quashed and set aside and also the order dated 12.02.2021 by which the complaint filed by the complainant-informant was referred to police under Section 156(3) Cr.P.C. upon which Chutia P.S. Case No. 82 of 2021 has been registered, be quashed and set aside. 14. Accordingly, the entire criminal proceeding initiated against the petitioner in connection with Chutia P.S. Case No. 82 of 2021 registered for the offences punishable under Section 406/420 of the Indian Penal Code and also the order dated 12.02.2021 by which the complaint filed by the complainant-informant has been referred to police under Section 156(3) Cr.P.C. upon which Chutia P.S. Case No. 82 of 2021 has been registered is quashed and set aside. 15. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 5th December, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)