Pankaj Kumar @ Sonu Kumar, S/o Late Nathuni Jha, Resident of Quarter No. W/S-8/96 v. 1. The State of Jharkhand 2. Kundan Kumar Jaiswal, S/o Shyam Bihari Prasad, R/o
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2701 of 2017 ------ Pankaj Kumar @ Sonu Kumar, S/o Late Nathuni Jha, Resident of Quarter No. W/S-8/96, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District- Ranchi, Jharkhand. … Petitioner Versus 1. The State of Jharkhand 2. Kundan Kumar Jaiswal, S/o Shyam Bihari Prasad, R/o Gram Sahpur, P.O. Sahpur, P.S. Chainpur, District- Palamau, Jharkhand. … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
: Mr. Mukesh Kr. Sinha, Advocate Mr. Ankit Apurva, Advocate : Ms. Sushma Aind, Addl.P.P. : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. I.A. No.10338 of 2024 2. Learned counsel for the petitioners submits that this interlocutory application has been filed with a prayer to amend the instant Cr.M.P. by modifying the erroneous existing prayer which occurred due to inadvertence and because of printing error. The proposed amendment has been mentioned in paragraph Nos.1 and 5 of this interlocutory application. It is further submitted that the proposed amendment will not change the nature and character of the instant Cr.M.P. It is further submitted that unless the proposed amendments are allowed, the petitioner will be highly 1 Cr. M.P. No.2701 of 2017 prejudiced. Therefore, it is submitted that the proposed amendment, as sought for in this interlocutory application, be allowed. 3. Considering the aforesaid facts of the case, the prayer to carry out the proposed amendments, as prayed for in this interlocutory application, is allowed. 4. The petitioner is directed to file a consolidated Cr.M.P. by incorporating the proposed amendments allowed by this order; in this Interlocutory Application. 5. 6. Accordingly, this interlocutory application stands allowed. In the meanwhile, the learned counsel for the petitioner files the consolidated Cr.M.P. (Anil Kumar Choudhary, J.) Cr.M.P. No.2701 of 2017 1. No one turns up on behalf of the opposite party No.2 though notice has been validly served upon the opposite party No.2. 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 including the order dated 05.03.2014 passed by the learned SDJM, Daltonganj in connection with Complaint Case No.1304 of 2011 whereby and where under the learned SDJM, Daltonganj has found prima facie case against the petitioner for the offences punishable under Sections 406, 420 of the Indian Penal Code. 2 Cr. M.P. No.2701 of 2017 3. The allegation against the petitioner is that the petitioner approached the complainant to set up a tower and entered into an agreement. As per the agreement, the petitioner took Rs.1,00,000/- but after 15 days, he dumped the iron angles and also constructed the foundation and took another Rs.1,00,000/- from the complainant but the tower was not set up. On demand being made, the petitioner gave a cheque of Rs.30,000/- but the same was dishonored because of mismatching the signature and insufficient balance found in the account. There is no written proof regarding payment of money. On the basis of the complainant, statement on solemn affirmation and the statement of enquiry witnesses, the learned SDJM, Daltonganj found prima facie case against the petitioner for the offences punishable under Sections 406, 420 of the Indian Penal Code. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Satyabhama Dubey @ Satyabhama Devi & Others vs. The State of Jharkhand & Others reported in 2024 0 Supreme (Jhk) 171 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Umashankar Gopalika vs. State of Bihar 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) 3 Cr. M.P. No.2701 of 2017 and submits that therein 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. If the intention to cheat has developed later on, the same cannot amount to cheating. 5. Learned counsel for the petitioner next submits that there is absolutely no allegation against the petitioner of playing deception since the beginning of the transactions between the parties but rather the admitted fact is that the petitioner dumped the iron angles and prepared the foundation, goes to show that he has no intention of cheating in the beginning. Hence, it is submitted that even if the entire allegations made against the petitioner are considered to be true, still the offence punishable under Section 420 of the Indian Penal Code is not made out. 6. It is then submitted that this Court also relied upon the judgment of the 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 4 Cr. M.P. No.2701 of 2017
Decision
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)” and submits that therein 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 retained the same. 7. It is next submitted that there is no allegation against the petitioner that the petitioner dishonestly retained any money nor is there any documentary evidence of entrustment of any money to the petitioner. It is also submitted that at best, a civil dispute is made out against the petitioner and a clock of criminal case has been given to the civil dispute, by the complainant for the purpose of wrecking vengeance. Hence, it is submitted that the prayer as prayed for in this Cr.M.P. be allowed. 8. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner and submit that there is direct allegation against the petitioner of cheating and committing criminal breach of trust. Hence, it is submitted that 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 pertinent to mention here that so far as the offence punishable under Section 420 of the Indian Penal Code is concerned, it is a settled principle of law as has already been mentioned in the foregoing paragraph of this judgment that to 5 Cr. M.P. No.2701 of 2017 constitute the offence of cheating, there has to be deception played by the petitioner since the beginning of the transactions between the parties. 10. Now coming to the facts of the case, there is no allegation against the petitioner of playing deception since the beginning of the transactions between the parties rather it is the admitted case of the complainant that the petitioner dumped some iron angles and also prepared foundation and later on, also handed over the cheque of Rs.30,000/-. Of course, the same was dishonoured for which the complainant could have filed a separate case, if the said amount was not paid after demand being made as per law but certainly, 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. 11. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law as has already been mentioned above in the foregoing paragraph of this judgment itself that in order to constitute the criminal breach of trust, it must also be shown that the money was retained dishonestly. 12. Now coming to the facts of the case, besides the fact that there is no documentary evidence of entrustment of any money to the petitioner, there is no allegation that the petitioner dishonestly retained the money. 13. 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 the offence punishable under Section 406 of the Indian Penal Code is also not made out. 6 Cr. M.P. No.2701 of 2017 14. The perusal of the record reveals that the dispute between the parties is basically a civil dispute and a clock of criminal case has been given to it for the purpose of wrecking vengeance. 15. In view of the discussion made above as neither the offence punishable under Section 420 of Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioner even though the entire allegations made against the petitioner are considered to be true in their entirety. Hence, this Court is of the considered view that this is a fit case where the entire criminal proceeding including the order dated 05.03.2014 passed by the learned SDJM, Daltonganj in connection with Complaint Case No.1304 of 2011, be quashed and set aside. 16. Accordingly, the entire criminal proceeding including the order dated 05.03.2014 passed by the learned SDJM, Daltonganj in connection with Complaint Case No.1304 of 2011, is quashed and set aside. 17. In the result, this Cr.M.P. is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of September, 2024 AFR/ Saroj 7 Cr. M.P. No.2701 of 2017