1. Vijay Kumar Jain @ Vijay Patni @ Vijay Kumar, son of Dharam Chand v. 1. The State of Jharkhand 2. Satish Kumar Goyal, Son of Late Banarashi Das
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3025 of 2017 ------ 1. Vijay Kumar Jain @ Vijay Patni @ Vijay Kumar, son of Dharam Chand Patni 2. Vinay Patni @ Jain @ Binay Patni @ Vinay Kumar Patni 3. Vivek Patni, both sons of Vijay Kumar Jain @ Vijay Patni @ Vijay Kumar All residents of Annapurna Building, Flat No.6/2, Sarat Bose Road, P.O. and P.S. Ballygunge, District- Kolkata (West Bengal) … Petitioners Versus 1. The State of Jharkhand 2. Satish Kumar Goyal, Son of Late Banarashi Das Goyal, Proprietor of Goyal Traders having its office at Shastri Nagar (East), P.O. Dhanbad, P.S. Bank More, District- Dhanbad. … Opposite Parties For the Petitioners For the State For the O.P. No.2 ------
Legal Reasoning
learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offences punishable under Section 418 and 34 of the Indian Penal Code and the said case is now pending before the learned Judicial Magistrate-1st Class, Dhanbad. 3. The allegation against the petitioners is that the petitioners in the year 2010-11 approached the complainant for supply of coal. The complainant supplied coal. Petitioners made payment up to the year 2013 but thereafter defaulted in payment and by 2014-15, total coal worth of Rs.50,70,000/- was supplied by the complainant to the petitioners, the amount of which the petitioners did not pay. On the basis of the complaint, the statement of solemn affirmation and the statement of enquiry witnesses, the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offence punishable under Section 418 read with Section 34 of the Indian Penal Code and ordered for issuance of summons. 4. Learned counsel for the petitioners relying upon the judgment of the Hon’ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Another reported in (2007) 7 SCC 373 paragaraph-8 of which reads as under: - “8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus: “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 2 Cr. M.P. No.3025 of 2017 contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits „criminal breach of trust‟.” Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” (Emphasis supplied) and submits that it is a settled principle of law that non-payment or underpayment of the price of goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. Hence, it is submitted that even if the entire allegations against the petitioners are considered to be true in its entirety, still the offence punishable under Section 418 and 34 of the Indian Penal Code is not made out against the petitioners. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 5. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corpn. vs. NEPC India Ltd. & Others reported in (2006) 6 SCC 736 and submit that for a particular cause of action there may be instances where a civil case as well as criminal prosecution can be instituted and merely because there is a civil remedy that will not debar any criminal prosecution from being initiated. 6. Learned counsel for the opposite party No.2 submits that though the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offence punishable under Section 418 of the Indian Penal Code but in fact it is a case where the offence punishable under Section 422 of the Indian Penal Code is made out. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 3 Cr. M.P. No.3025 of 2017 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that in order to constitute the offence of cheating, the accused must have the intention to deceive since the beginning of the transaction between the parties 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-6 of which reads as under:- 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 in order to constitute the offence punishable under Section 420 of the Indian Penal Code it has to be shown that the accused had the intention to deceive since the beginning. If the intention to deceive develops later, the same will not amount to the offence of cheating punishable under Section 420 of the Indian Penal Code. 8. Now coming to the facts of the case admittedly the payment has been made up to the year 2013 and though the business transaction started from the year 2010-11 so, it cannot be said that the petitioners have any intention to deceive since the very inception of the transaction between the parties. 9. Under such circumstances, this Court is of the considered view that even if the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 418 and 34 of the Indian Penal Code is not made out against the petitioners. 4 Cr. M.P. No.3025 of 2017 10. So far as the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corpn. vs. NEPC India Ltd. & Others (supra) is concerned, no doubt the same is a settled principle of law but for institution of the criminal prosecution, the ingredients of any criminal offence has to be made and in this case, as has already been discussed above in this judgment; the offence punishable under Section 418 of the Indian Penal Code is not made out against the petitioners so, the ratio of Indian Oil Corpn. vs. NEPC India Ltd. & Others (supra) is not applicable to the facts of the case. 11. So far as the contention of the learned counsel for the opposite party No.2 that the offence punishable under Section 422 of the Indian Penal Code is made out against the petitioners is concerned, the essential ingredients of the offence punishable under Section 422 of the Indian Penal Code are: - (i) (ii) There was a debt or demand. Such debt or demand was due to the accused or some other person. (iii) The accused prevented the debt or demand due by him or to any person from being available for creditors and the accused did so fraudulently or dishonestly. 12. Now coming to the facts of the case, there is absolutely no allegation against the petitioners of preventing any debt or demand due to him from being available to the complainant nor is there any allegation that the petitioners did so fraudulently or dishonestly. Under such circumstances, this Court is of the considered view that in the absence of the essential ingredients to constitute the offence punishable under Section 422 of the Indian Penal Code, the same is also not made out in the facts of the case, even if the 5 Cr. M.P. No.3025 of 2017 allegations made against the petitioners are considered to be true in their entirety. 13. Under such circumstances, this Court is of the considered view that continuation of the criminal proceedings will amount to abuse of process of law. Accordingly, this is a fit case where the entire criminal proceeding including order taking cognizance dated 30.08.2017 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Complaint Case No.647 of 2016 by which the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offence punishable under Section 418 and 34 of the Indian Penal Code, be quashed and set aside. 14. Accordingly, the entire criminal proceeding including order taking cognizance dated 30.08.2017 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Complaint Case No.647 of 2016 is quashed and set aside. 15. In view of the disposal of the instant Criminal Miscellaneous Petition,
Arguments
: Mr. Indrajit Sinha, Advocate Mr. Rishav Kumar, Advocate Mr. Sagar Kumar, Advocate : Mr. Vineet Kr. Vashistha, Spl.P.P. : Mr. Yogesh Modi, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including order taking cognizance dated 30.08.2017 passed by the learned Judicial Magistrate-1st Class, Dhanbad in connection with Complaint Case No.647 of 2016 by which the 1 Cr. M.P. No.3025 of 2017
Decision
pending interlocutory application, if any, stands disposed of being infructuous. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of August, 2024 AFR/ Saroj 6 Cr. M.P. No.3025 of 2017