Shashi Kumar Sahay @ Shashi Sahay, Son of Bhaiya Devendra Nath Sahay, Proprietor of v. 1. The State of Jharkhand 2. Prabhat Kumar Shahi, son of Late Kameshwar Shahi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3053 of 2017 ------ Shashi Kumar Sahay @ Shashi Sahay, Son of Bhaiya Devendra Nath Sahay, Proprietor of M/s. Manish Enterprises, Resident of Sital Nieas, MIG-28A, Madhav Bag Colony Road, P.O. and P.S. Azad Nagar, Mango, Town- Jamshedpur, District- East Singhbhum. … Petitioner Versus 1. The State of Jharkhand 2. Prabhat Kumar Shahi, son of Late Kameshwar Shahi, resident of Qr. No.29, Line No.1, East Plant Basti, P.O. and P.S. Burmamines, Town- Jamshedpur, District- East Singhbhum … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
Jamshedpur has found prima facie case for the offence punishable under Section 420 of the Indian Penal Code against the petitioner and ordered for issuance of 1 Cr. M.P. No.3053 of 2017 summons in connection with C1 Case No.571 of 2017 and the said case is now pending before the learned Judicial Magistrate-1st Class at Jamshedpur. 4. The allegation against the petitioner is that the complainant was the employee of M/s Manish Enterprises of which the petitioner is the Proprietor. Initially, the salary of the complainant was used to be credited in his bank account but M/s Manish Enterprises did not pay salary of twenty one (21) months to the complainant. 5. Learned counsel for the petitioner submits that the allegations against the petitioner are false. The complainant earlier filed a case before the Labour Superintendent, Jamshedpur. It is next submitted that the claim of the complainant for salary of twenty one (21) months is not genuine when he himself admits in the statement on solemn affirmation that he worked for fifteen (15) months only. It is next submitted that in the absence of any intention of the petitioner to play any deception since the beginning, the offence of cheating is not made out. Learned counsel for the petitioner relies 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 the relevant portion of which reads as under:- “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.” (Emphasis supplied) and submits that it is a settled principle of law that that non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 2 Cr. M.P. No.3053 of 2017 6. It is next submitted that even if the entire allegations made against the petitioner are considered to be true in their entirety still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner. Hence, it is submitted that the prayer of the petitioner, as prayed for in this Cr.M.P., be allowed. 7. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in this Cr.M.P. and submits that the petitioner had the intention of cheating since the beginning, hence, the offence punishable under Section 420 of the Indian Penal Code is made out against him. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. 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 held by the 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) that 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. 3 Cr. M.P. No.3053 of 2017 9. Now, coming to the fact of the case, there is no allegation against the petitioner of having played deception since the very beginning. It is the admitted case of the complainant that his salary was used to be credited in his bank account for some months. This admitted case of the complainant goes to show that, the petitioner did not play deception since the beginning of the employer and employee relationship between the petitioner and the complainant. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still no offence punishable under 420 of the Indian Penal Code is made out against the petitioner of this case. Accordingly, 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 entire criminal proceedings including the order dated 29.05.2017 passed in connection with C1 Case No.571 of 2017 which is now pending before the learned Judicial Magistrate-1st Class at Jamshedpur, as prayed for by the petitioner, be quashed and set aside. 10. Accordingly, the entire criminal proceedings including the order dated 29.05.2017 passed in connection with C1 Case No.571 of 2017 which is now pending before the learned Judicial Magistrate-1st Class at Jamshedpur, as prayed for by the petitioner, is quashed and set aside qua the petitioner only. 11. 12.
Arguments
: Mr. Jitendra Nath Upadhyay, Advocate Mr. Rahul Kumar, Advocate : Mr. V. S. Sahay, Addl.P.P. : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. calls. 3. No one turns up on behalf of the opposite party No.2 in spite of repeated 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 proceedings including the order dated 29.05.2017 whereby and where under the learned Judicial Magistrate,
Decision
In the result, this Cr.M.P., stands allowed. In view of disposal of the instant Cr.M.P., the interim order granted vide order dated 09.05.2018, is vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of August, 2024 AFR/ Animesh 4 Cr. M.P. No.3053 of 2017