Chandan Singh @ Chandan Kumar Singh, aged about 31 years, S/o- Shyamsher Singh, Resident v. 1. The State of Jharkhand, and
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1603 of 2022 ------ Chandan Singh @ Chandan Kumar Singh, aged about 31 years, S/o- Shyamsher Singh, Resident of Sakhuan, Panjar, P.O. & P.S.-Panjar, District-Rohtas, Bihar. Versus 1. The State of Jharkhand, and … Petitioner 2. Vishnu Agarwal, S/o- R.S. Agarwal, Aged about-43 years, Resident of-Durga Badi Road, Parsudih, P.O & P.S.-Parsudih, Town- Jamshedpur, District-East Singhbhum. … Opposite Parties For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
: Mr. Prabhat Kr. Sinha, Advocate : Mr. P.D. Agrawal, Spl.P.P. : Mr. Nitin Kr. Pasari, Advocate : Ms. Sidhi Jalan, 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 and set aside the First Information Report including the investigation in connection with Chandil P.S. Case No.113/2021 registered for the offences punishable under Sections 406/407/420/34 of the Indian Penal Code against the petitioner which is now pending before the Court of learned SDJM, Seraikella. 3. The allegation against the petitioner is that the petitioner came with different persons with whom the informant was having business relationship 1 Cr. M.P. No.1603 of 2022 for several days and the informant supplied M.S. Scrap in various quantities to the co-accused persons but the co-accused persons did not pay the value of the same. Even, though initially they were assuring to pay the amount but later on they started threatening the informant. 4. On the basis of the written report submitted by the informant, police registered Chandil P.S. Case No.113/2021 and it is submitted by the learned counsel for the petitioner that investigation of the case is going on at present and charge sheet has not yet been submitted. 5. Learned counsel for the petitioner relies upon the judgment of Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another 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) and submits that it is a 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. If the intention to cheat has developed later on, the same cannot amount to cheating. 6. Learned counsel for the petitioner further submits that in this case, it is admitted by the informant himself that the informant himself was having long 2 Cr. M.P. No.1603 of 2022 standing business relationship with the co-accused persons to whom he has supplied the M.S. Scrap in various quantities, hence, the question of the petitioner having any intentions to deceive the complainant since the beginning of the transaction which the complainant had with the co-accused persons; does not arise. 7. Learned counsel for the petitioner next relies upon the judgment of this Court in the case of Pawan Kumar Lakhotia & Ors. vs. The State of Jharkhand & Ors reported in 2024 0 Supreme(Jhk) 284 and submits that in that case, this Court relied upon the judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:- “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) wherein the Hon’ble Supreme Court of India reiterated the settled principle of law 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
Decision
must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the accused 3 Cr. M.P. No.1603 of 2022 persons did not pay the money to the complainant does not amount to criminal breach of trust; hence, the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioner. 8. Learned counsel for the petitioner next submits that Section 407 of Indian Penal Code is not applicable to the facts of the case; as there is no allegation of entrustment of any property to anybody as a carrier wharfinger or warehouse keeper, hence, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law, therefore, the prayer, as prayed for in the instant Cr.M.P, be allowed. 9. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submit that the allegation in the First Information Report goes to show that the petitioner in furtherance of common intention with the co-accused persons had the intention of cheating since the beginning of the transaction between the parties, hence, the offences for which the FIR has been registered is made out against the petitioner. It is lastly submitted that this Cr.M.P. being without any merit, be dismissed. 10. 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 as has been reiterated by the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. And Others vs. State of Uttar Pradesh and Another reported in (2024) SCC OnLine SC 2248 paragraph-36 of which reads as under:- “36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods 4 Cr. M.P. No.1603 of 2022 passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi v. State of Uttar Pradesh, 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) v. State of Jharkhand, 2023 SCC OnLine Jhar 301]” that for non-payment of consideration amount of a sale of goods, there can be civil remedy for realization of the consideration amount but no criminal case will be maintainable for it because once the property in the goods passes to the purchaser it cannot be said that the purchaser was entrusted with the property by the seller. 11. Now, coming to the facts of the case, the allegation against the petitioner is that the informant at the behest of the petitioner sold some material to the co- accused persons but they have not paid the consideration amount. It being a settled principle of law, certainly the informant has the civil remedy for realization of the consideration amount of sale, but certainly criminal case is not maintainable for the same, hence, in the considered opinion of this Court, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the First Information Report including the investigation in connection with Chandil P.S. Case No.113/2021 registered for the offences punishable under Sections 406/407/420/34 of the Indian Penal Code against the petitioner, is liable to be quashed and set aside. 12. Accordingly, the First Information Report including the investigation in connection with Chandil P.S. Case No.113/2021 registered for the offences 5 Cr. M.P. No.1603 of 2022 punishable under Sections 406/407/420/34 of the Indian Penal Code against the petitioner, is quashed and set aside. 13. In the result, this Cr.M.P., is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th of October, 2024 AFR/ Abhiraj 6 Cr. M.P. No.1603 of 2022