1. Aftab Sheikh @ Chunnu 2. Shahnawz Sheikh @ Tipu @ Shavnawaz Sheikh v. 1. The State of Jharkhand 2. Moiz Khan @ Raja
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1775 of 2020 1. Aftab Sheikh @ Chunnu 2. Shahnawz Sheikh @ Tipu @ Shavnawaz Sheikh Versus 1. The State of Jharkhand 2. Moiz Khan @ Raja -------- ..... … Petitioners ..... … Opposite Parties CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the State For the O.P. No. 2 ------ : : : : ------ 07/ 11.01.2024 Heard Mr. Kalyan Roy, learned counsel appearing for the Mr. Kalyan Roy, Advocate. Mr. Fahad Allam, A.P.P. Mr. Indrajit Sinha, Advocate. Mr. Ankit Vishal, Advocate. petitioners, Mr. Fahad Allam, A.P.P. appearing for the State and Mr. Indrajit Sinha along with Mr. Ankit Vishal, learned counsel appearing for the O.P. No. 2. 2. This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 11.06.2020, in connection with Complaint Case No. 1088 of 2016, pending in the court of learned Chief Judicial Magistrate, Ranchi. 3. The complaint case was lodged alleging therein that that
Facts
M/s Aman Builders is the Partnership Firm and the Opposite Party No.2 is the Managing Partner of the said firm situated at Central Street, Hindpiri, P.O. & P.S.-Hindpiri, District-Ranchi. The Opposite Party No.2 being Managing Partner of the said firm, entered into a Development Agreement dated 01.11.2009 with the father of the Petitioners. Further it is said that the Petitioner No.2 was one of the witness of the said agreement. Further it is said that the father of the Petitioners has also signed one acceptance paper on 23.10.2008 and received a sum of Rs. 10,00,000/- wherein, the Petitioner No.2 was one of the witness. It is also stated that at the time of execution of Development Agreement dated 01.11.2009, the Opposite Party No.2 has paid Rs.20,00,000/- to the father of the Petitioners, apart from that, further it is alleged that Opposite Party No.2 has paid a sum of Rs.13,01,000/- to the father of the Petitioners on different dates in presence of the -2- Petitioners. In the complaint petition, Opposite Party No.2 further claimed that he has spent Rs.10,000/- to the Petitioner No.1 on 04.05.2010 and in token of the receipt, he has made signature on the back page of the agreement dated 01.11.2009. The Opposite Party No.2 has further stated that he spent Rs.3,50,000/- towards preparation of map, etc. It is as such, against the said agreement, Rs.62,29,500/- was received. The Petitioners refused to honour the Development Agreement and demanded a sum of Rs.50,00,000/- for handing over the land and thereby the accused persons having conspiracy with each other knowingly and intentionally cause wrongful loss to the Complainant/Opposite Parties by not allowing him to develop the building in terms of the said Development Agreement. 4.
Legal Reasoning
accordance with law and considering the judgment of this court in the case of Amresh Kumar Dhiraj and Others versus State of Jharkhand & Another reported in 2020 (1) JLJR 199 (Jhr.) and further it was observed that without influenced by the order of the revisional court, the order is required to be passed. He submits that pursuant to that the learned court has been further pleased to take cognizance under Sections 406, 420/34 of the Indian Penal Code by the impugned order dated 11.06.2020. He further submits that the -3- petitioners are only the sons of the deceased father Late Hyder Sheikh, who has entered into the development agreement with the O.P. No. 2. He further submits that the petitioner No. 1 is no where in the development agreement, whereas the petitioner No. 2 has only signed the said development agreement as a witness. He further submits that the entire amount has been taken by the deceased father of the petitioners and for the said development agreement, the O.P. No. 2 has filed specific performance suit, being Original Suit No. 498 of 2018, which was decreed in favour of the O.P. No. 2 by the judgment dated 13.04.2023. He submits that in these backgrounds, the criminality cannot be fastened upon the petitioners, who happened to be the sons of deceased father, who had entered into the development agreement with the O.P. No. 2. To buttress his argument, he relied in the case of Satishchandra Ratanlal Shah Versus State of Gujarat & Anr., reported in (2019) 9 SCC 148, wherein the Hon ble Supreme Court in paras- 11, 12 and 13 held as follows:- ’ “11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with 406 of IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that the respondent no.2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit which is still pending adjudication. The law clearly simple recognizes a difference between payment/investment and money entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of trust contained the criminal breach of in Section 405 IPC without there being a clear case of entrustment. of 12. In this context, we may note that there is nothing either in the complaint or in any -4- material before us, pointing to the fact that any property was entrusted to the appellant at all which he dishonestly converted for his own use so as to satisfy the 405 punishable ingredients under Section 406 of IPC. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error. of Section the depend 13. Now coming to the charge under Section 415 punishable under Section 420 of IPC. In the context of contracts, the distinction between mere breach of contract and cheating would fraudulent upon inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168). In the case before us, admittedly the appellant was trapped in economic crisis and the therefore, he had approached respondent no. 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for fraudulent or dishonest cheating unless intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.” 5. Relying on the above judgement, he submits that the case of the petitioners is fully covered, as there is no criminal breach of trust and cheating is made out and the petitioners are only happened to be the sons of deceased father. 6. Learned counsel appearing for the petitioners further submits that to allow to continue the proceeding will amount to an abuse of the process of law. He submits that the every breach of contract cannot be the subject matter of criminal proceeding and to -5- buttress his argument, he relied in the case of Hridaya Ranjan Prasad Verma Versus State of Bihar & Anr., reported in (2000) 4 SCC 168, wherein the Hon ble Supreme Court in paras-15 and 16 held as follows:- ’ is said intention the offence is shown right at 15. In determining the question it has to be kept in mind that the distinction between mere “ breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest the beginning of the transaction, that is the time when to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 16. the the principles noted above, the present case, in our interference considered inasmuch as the ingredients of the offence of cheating punishable under section 420 IPC and its allied offences under sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within first category of cases enumerated in State of Haryana & Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and the accepting ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the allegations touchstone of Judged on warrants to be true, view the -6- complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent no.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.” On the same line, he further relied in the case of Sarabjit 7. Kaur Versus The State of Punjab & Anr., in Criminal Appeal No. 581 of 2023 and also in the case of Md. Ibrahim & Ors. Versus State of Bihar & Anr. reported in (2009) 8 SCC 751. He further relied on the judgment of this court in the case of Sulochana Devi @ Sulochna @ Sulochana Gupta Versus The State of Jharkhand & Anr. in Cr.M.P. No. 1881 of 2019. 8. Relying on these judgments, he submits that the case of the petitioners are fully covered and in view of that the entire criminal proceeding against the petitioners may kindly be quashed. 9. The said argument of Mr. Kalyan Roy, learned counsel appearing for the petitioners is being resisted by Mr. Indrajit Sinha, learned counsel appearing for the O.P. No. 2 and he submits that the criminality is made out. He submits that the case has not been registered so far as other family members are concerned, as these petitioners have given the undertaking and they have not implemented the same, as such, the case is made out. He further submits that the case of the O.P. No. 2 is further strengthened in view of the decree passed in the original suit. On these grounds, he submits that these are the subject matter of trial and this court may not interfere in the matter. -7- 10. Mr. Fahad Allam, learned A.P.P. appearing for the State submits that the learned court has rightly taken the cognizance. 11. It is an admitted fact that the matter is arising out of a development agreement and the signatory of the said agreement are Late Hyder Sheikh and O.P. No. 2. In view of the development agreement, the amount in question was taken by Late Hyder Sheikh. The development agreement was entered into on 01.11.2009 and the father of the petitioners Late Hyder Sheikh was died on 29.12.2012, wherein the complaint case was filed on 04.05.2016. On 02.09.2018, the original suit was instituted by the O.P. No. 2. There is, only allegation that certain undertaking was there on behalf of the petitioner No. 2. So far as the petitioner No. 1 is concerned, there is no allegation. It is an admitted position that these petitioners are the sons of Late Hyder Sheikh. Further the Original Suit No. 498 of 2018 was already decreed in favour of the O.P. No. 2. 12. It is well settled that a breach of contract does not deprive the criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of the failure to took the promise is not enough to initiate a criminal proceeding. From the facts of the present case, which is stated hereinabove, it appears that the entire ideas seem to convert the civil dispute to a criminal and also to put pressure on the petitioners to return the amount. The criminal courts have not meant to use to settle the scores of pressurize parties to settled the dispute, whenever ingredients of the criminal offence are made out, the court shall take cognizance. The complaint was filed after four years and subsequently the suit was filed. 13. In view of the above, the judgments relied by Mr. Kalyan Roy, learned counsel appearing for the petitioners in the cases of Satishchandra Ratanlal Shah (Supra), Hriyada Ranjan Prasad Verma (Supra), Md. Ibrahim & Ors. (Supra) and Sarabjit Kaur (Supra) are favouring the petitioners. 14. Accordingly, the entire criminal proceedings including the order taking cognizance dated 11.06.2020, in connection with Complaint Case No. 1088 of 2016, pending in the court of learned -8- Chief Judicial Magistrate, Ranchi, are hereby, quashed. 15.
Arguments
Mr. Kalyan Roy, learned counsel appearing for the petitioners submits that the learned court has been pleased to take cognizance against the petitioners by order dated 21.02.2018 under Section 418 of the Indian Penal Code. He submits that the O.P. No. 2 aggrieved with the said order, filed a revision being Criminal Revision No. 179 of 2018 before the learned Judicial Commissioner, Ranchi, wherein the learned revisional court has been pleased to set aside the order dated 21.02.2018 and remanded the matter back to the learned court to pass a fresh order. He further submits that the said revisional order, passed by the learned revisional court was challenged by the petitioners before this court, in Cr. Rev. No. 1408 of 2019, wherein by order dated 27.02.2020, the matter was disposed of directing the learned court to pass a fresh order in
Decision
This petition is allowed and disposed of. Pending I.A., if any, stands disposed of. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.)