The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1643 of 2018 1. Premjit Singh Atwal, son of Surjit Singh Atwal, aged about 73 years, resident of House no. EG-3/14, Garden Estate, M.G. Road, Near Guru Dronacharya Metro Station, Gurgaon, DLF QE, P.O. & P.S.- Gurgaon, Dist.- Gurgaon, Haryana-122002 2. Patri Ciya Helen, wife of Premjit Singh Atwal, aged about 68 years, resident of House No. EG- 3/14, Garden Estate, M.G. Road, Near Guru, Dronacharya, Metro Station, Gurugaon, DLF QE, .O. & P.S.- Gurgaon, Dist.- Gurgaon, Haryana-122002 Versus ...... Petitioners 1. The State of Jharkhand 2. Pranay Agrawal, son of Sri Niranjan Agrawal, Proprietor of M/s Blue Line Transport Company, having his office at Maithon road, Kumardhubi, P.O.- Maithon, P.S.- Maithon (Chirkunda), Dist.- Dhanbad (Jharkhand) ….. Opposite Parties For the Petitioners : Mr. Indrajit Sinha , Adv. Mr. Sagar Kumar , Adv. For the State :
Legal Reasoning
relying upon the judgment of this court in Nidhi Gupta vs. The State of Jharkhand & Anr. passed in CrMP 3448 of 2021 dated 08.05.2024, wherein this court relied upon the judgment of the of 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 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) and has reiterated the settled principle of law 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. It is next submitted that there is no allegation against the petitioner of having playing any deception since the beginning of the transaction between the parties and in fact, it is the admitted case of the petitioners that the Hywa vehicle, which were entrusted to the petitioners, had been given back by them so, in the absence of any allegation that the petitioners played deception at the very inception, the offence punishable under Seciton 420 of IPC is not made out. 5. It is next submitted by learned counsel for the petitioners that in that case also, this court relied upon the judgment of the Hon’ble Supreme Court of India reiterating the settled principle of law that a mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment. It is further submitted that there no 2 Cr.M.P. No. 1643 of 2018 allegation against the petitioners of dishonest misappropriation of the property of the petitioners, hence, it is submitted that even if the 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, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 6. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer, as prayed for in this Criminal Miscellaneous Petition and submits that the allegation made against the petitioners are sufficient to constitute both the offences punishable under Sections 420 and 406 of IPC hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 7. 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 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
Mr. Achinto Sen, Addl. PP 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 as well as the order dated 16.06.2016 passed by learned CJM, Dhanbad whereby and where under, learned court below found the prima facie case for the offences punishable under Sections 406, 420 of the IPC, in connection with C. P. Case no. 1450 of 2015, pending in the court of learned CJM, Dhanbad. 1 Cr.M.P. No. 1643 of 2018 3. It is submitted by learned counsel for the petitioners that the allegation against the petitioners is that the petitioners hired Hywa vehicles from the complainant and did not pay rent of hiring of the vehicle worth Rs. 10,00,000/- to the complainant. 4. It is next submitted by learned counsel for the petitioners by
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.” (Emphasis supplied) 8. 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 3 Cr.M.P. No. 1643 of 2018 same. The mere fact that the accused did not pay the money to the complainant does not amount to criminal breach of trust. 9. Now coming to the facts of the case, there is no materials in the record to suggest that the petitioner committed any dishonest misappropriation of entrusted property or had any intention to deceive the complainant since beginning of the transaction between them. In fact, the entrusted property being the Hywa vehicle has already been given back by the petitioners to the complainant. 10. 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 neither the offence punishable under Section 420 of IPC nor the offence punishable under Section 406 of IPC is 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 dated 16.06.2016 passed by learned CJM, Dhanbad in connection with C. P. Case no. 1450 of 2015 be quashed and set aside qua the petitioners. 11. Accordingly, the entire criminal proceeding as well as the order dated 16.06.2016 passed by learned CJM, Dhanbad in connection with C. P. Case no. 1450 of 2015 is quashed and set aside qua the petitioners. 12. In the result, this Criminal Miscellaneous Petition, is allowed. High Court of Jharkhand, Ranchi Dated, the 16th August, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 4 Cr.M.P. No. 1643 of 2018