Shib Kali Banerjee @ Shiv Kali Banerjee, aged about 78 years, S/o Late Tarapada v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1746 of 2022 ------ Shib Kali Banerjee @ Shiv Kali Banerjee, aged about 78 years, S/o Late Tarapada Banerjee Managing Director, M/s Tycoons Industries Pvt. Ltd., Resident at 05 Ashoka Apertment-111, South Avenue Sarat Bose Road Kolkata, P.O. & P.S.-Rabindra Sarovar, Dist.-Kolkata, (W.B.). … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State
Legal Reasoning
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) wherein the Hon’ble Supreme Court of India 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 and if the intention to cheat has developed later on, the same cannot amount to cheating and in that case, this Court has also relied upon the judgment of the Hon’ble 2 Cr. M.P. No.1746 of 2022 Supreme Court of India in the case of Satish Chandra Ratanlal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148 wherein the Hon’ble Supreme Court of India reiterated 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 of the Indian Penal Code for which punishment has been provided in Section 406 of the Indian Penal Code; without there being a clear case of entrustment. 5. Learned counsel for the petitioner next submits that, in that case, this Court also 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 must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 3 Cr. M.P. No.1746 of 2022 6. It is next submitted that as there is no allegation against the petitioner of having playing deception since the beginning of the transaction between the parties, rather it is the admitted case of the complainant that the petitioner paid Rs.15,52,000/-, hence, 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 Indian Penal Code is not made out. 7. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is submitted that there is no allegation of any entrustment to the petitioner and the only allegation against the petitioner is that, though, the petitioner stood guarantor for the entrustment made to the co-accused-M/s Ankit Traders, but he did not keep up his promise, so in the absence of any entrustment, the offence punishable under Section 406 is also not made out. It is then submitted that the dispute between the parties is basically a civil dispute and a cloak of criminal case has been given to the civil dispute for wrecking vengeance. It is lastly submitted that the prayer, as prayed for in the instant Cr.M.P, be allowed. 8. Learned AAG-II appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submit that there is direct and specific allegation against the petitioner that the petitioner in criminal conspiracy with the co-accused person has cheated the employer of the informant and has also committed criminal breach of trust, hence, at this nascent stage, the entire criminal proceeding ought not be quashed and this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is needless to mention 4 Cr. M.P. No.1746 of 2022 here that as has already been referred in the foregoing paragraphs of this judgment, it is a settled principle of law that in order to constitute an offence punishable under Section 420 of Indian Penal Code, the deception has to be played by the accused person of the case, at the very inception of the transaction between the parties. 10. Now coming to the fact of the case, is that it is the admitted case of the prosecution that the petitioner has paid substantial part of the amount due and payable i.e., Rs.15,52,000/- out of the total amount due to be paid i.e. Rs.40,00,000/-. 11. Under such circumstances, it cannot be said that the petitioner played deception since the very inception of the transaction between the parties and in the absence of the same, even if the entire allegations made against the petitioner are considered to be true still, the offence punishable under Section 420 of Indian Penal Code is not made out against the petitioner. 12. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, there is absolutely no allegation of any entrustment to the petitioner, further, there is no allegation of any dishonest misappropriation by disposing of the same in some way or dishonestly retaining any property entrusted to the co-accused person and in the absence of the same, even if the entire allegations made against the petitioner are considered to be true still, the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioner. 13. It is apparent that the dispute between the parties is basically a civil dispute and a cloak of criminal case has been given to the civil dispute for wrecking vengeance, hence, in the considered opinion of this Court, the 5 Cr. M.P. No.1746 of 2022 continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the order dated 24.03.2022 including entire criminal proceeding passed by learned Judicial Magistrate-1st Class, Dhanbad in connection with Nirsa (Kalubathan O.P.) P.S. Case No.191 of 2020 arising out of G.R. Case No.833 of 2022, be quashed and set aside. 14. Accordingly, the order dated 24.03.2022 including entire criminal proceeding passed by learned Judicial Magistrate-1st Class, Dhanbad in connection with Nirsa (Kalubathan O.P.) P.S. Case No.191 of 2020 arising out of G.R. Case No.833 of 2022, is quashed and set aside. 15.
Arguments
: Mr. Niranjan Kumar, Advocate : Mr. Sachin Kumar, AAG-II ------ ------ 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 order dated 24.03.2022 passed by learned Judicial Magistrate-1st Class, Dhanbad in connection with Nirsa (Kalubathan O.P.) P.S. Case No.191 of 2020 arising out of G.R. Case No.833 of 2022 by which consequent upon submission of the charge sheet against the petitioner, the learned Judicial Magistrate-1st Class, Dhanbad has taken cognizance for the offences punishable under Sections 420, 406, 120B/34 of the Indian Penal Code against the petitioner as well as the entire criminal proceeding of the said case. 3. The allegation against the petitioner is that the petitioner is the Managing Director of M/s Tycoons Industries Pvt. Ltd. and there was an agreement 1 Cr. M.P. No.1746 of 2022 between the petty contractors of the M/S Tycoons Industries Pvt. Ltd. namely M/s Ankit Traders and the employer of the informant namely M/s Puja Indhan Kendra. As per the said agreement, the employer of the informant supplied diesel worth Rs.30,00,000/- and Robin Chandra Gorai paid Rs.10,00,000/- to the said M/s Ankit Traders, but though, the petitioner stood guarantor against default in payment of any such money by M/s Ankit Traders, there was delay in payment of money. After much persuasion, he paid Rs.15,52,000/- but did not pay the remaining amount of Rs.24,48,000/-. 4. Learned counsel for the petitioner relies upon the judgment of this Court in the case of Ruchika Kakar vs. The State of Jharkhand & Another in Cr.M.P. No.216 of 2024 dated 08.05.2024 submits that therein this Court relied 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:-
Decision
In the result, this Cr.M.P., stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th of November, 2024 AFR/ Abhiraj 6 Cr. M.P. No.1746 of 2022