Ajit Kumar Singh, aged about 42 years, son of Sri Brindavan Singh, resident of v. 1. The State of Jharkhand 2. Sushil Kumar Singh, s/o late Rajdeo Singh, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2324 of 2018 Ajit Kumar Singh, aged about 42 years, son of Sri Brindavan Singh, resident of B/2 Chakki More, Sector-III, P.O.-Sector-III, P.S.-B.S. City, Dist.-Bokaro, Jharkhand .... Petitioner Versus 1. The State of Jharkhand 2. Sushil Kumar Singh, s/o late Rajdeo Singh, resident of G/2, A- Block, Prapti Estate, Chira-Chas, P.O. & P.S.-Chas, Dist.-Bokaro …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For O.P. No.2
Legal Reasoning
the order dated 10.01.2019 passed by this Court in A.B.A. No. 3920 of 2018 the petitioner has already deposited in total Rs.9,50,000/- in the trial court by way of demand draft and the same has been disbursed to the informant-opposite party no.2. Hence, it is submitted that even if the allegation made against the petitioner are considered to be true in its entirety still no offence punishable in law is made out against the petitioner. It is therefore submitted that the prayer as made in this criminal miscellaneous petition be allowed. 5. Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer to quash the entire criminal proceeding including the order dated 15.05.2018 passed by the learned Chief Judicial Magistrate, Bokaro in connection with Chas P.S. Case No. 41 of 2018, corresponding to G.R. No. 249 of 2018. It is next submitted by learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 that there is direct and specific allegation against the petitioner of cheating and committing criminal breach of trust as well as the offence punishable under Section 138 of Negotiable Instruments Act and the learned Chief Judicial Magistrate, Bokaro has rightly found prima facie case for the said offences. It is next submitted by learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 that there is absolutely no illegality committed by the learned Chief Judicial Magistrate, Bokaro. Hence, it is Cr.M.P. No.2324 of 2018 3 submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials 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 & Anr. reported in (2005) 10 SCC 336, paragraph no. 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 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 will not amount to cheating. 7. Now coming to the facts of the case, there is no allegation against the petitioner of playing deception since the very inception of the transaction between the parties because it is the admitted case of the informant that the petitioner has returned the money given by the Cr.M.P. No.2324 of 2018 4 informant by way of cheques of different dates which indicates that the petitioner had no intention to play deception since the very inception. 8. Under such circumstances and considering the fact that already the petitioner has returned Rs.9,50,000/- to the informant, this Court is of the considered view that even if the allegation made against the petitioner are considered to be true in its entirety still the offence punishable under Section 420 of Indian Penal Code is not made out. 9. So far as the offence punishable under Section 406 of Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. vs. State of Bihar & Anr. reported in (2014) 10 SCC 663, paragraph no.18 of which reads as under:-
Arguments
: Mr. Sanjeev Thakur, Advocate : Mrs. Lily Sahay, Addl. P.P. : Mr. Rajesh Kumar, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 15.05.2018 passed by the learned Chief Judicial Magistrate, Bokaro in connection with Chas P.S. Case No. 41 of 2018, corresponding to G.R. No. 249 of 2018 whereby and where under, cognizance has been taken for the offence punishable under Sections 406 and 420 of Indian Penal Code and under Section 138 of Negotiable Instruments Act. Cr.M.P. No.2324 of 2018 1 3. The brief fact of the case is that the informant entered into an agreement with the petitioner for purchasing of flat by paying Rs.9,50,000/-. The petitioner in contravention of the terms of the said agreement with the informant; sold the concerned flat to someone, other than the informant and issued postdated cheques worth Rs.13,00,000/- towards the money given by the informant but the same were dishonored. 4. It is submitted by the learned counsel for the petitioner by relying upon the judgment of Hon’ble Supreme Court of India in the case of N. Harihara Krishnan vs. J. Thomas in Criminal Appeal No. 1534 of 2017 dated 30.08.2017, that as Section 142 of Negotiable Instruments Act, 1881 stipulates that no court shall take cognizance of any offence punishable under Section 138 of the said Act unless the complaint is made within one month of the date from which the cause of action arises so, certainly, the learned Chief Judicial Magistrate, Bokaro has committed a grave illegality by taking cognizance of the offence punishable under Section 138 of Negotiable Instruments Act on a police case registered on the basis of the written report submitted by the informant to the police basing upon which Chas P.S. Case No. 41 of 2018 was registered. It is next submitted by the learned counsel for the petitioner that the only allegation against the petitioner is of breach of contract and in the absence of any allegation of fraudulent and dishonest misappropriation on the part of the petitioner and in the absence of any intention of the petitioner of playing deception since the beginning of the transaction between the parties neither the offence punishable under Section 406 nor the offence punishable Cr.M.P. No.2324 of 2018 2 under Section 420 of Indian Penal Code is made out. It is then submitted by the learned counsel for the petitioner that in terms of
Decision
“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 the dishonest 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) in misappropriating intention 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 Cr.M.P. No.2324 of 2018 5 persons. It must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 10. Now coming to the facts of the case, the alleged entrusted amount has already been returned by the petitioner even prior to institution of the FIR albeit by postdated cheques which were of course alleged to have been dishonoured subsequently but no allegation against the petitioner nor any averment made in the FIR, the materials collected during the investigation of the case or the charge sheet shows that the petitioner committed any dishonest misappropriation. 11. Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 406 of Indian Penal Code is not made out. 12. So far as the offence punishable under Section 138 of Negotiable Instruments Act is concerned, as in Section 142 of Negotiable Instrument Act, it has categorically been mentioned that the cognizance of the offence punishable under Section 138 of Negotiable Instruments Act can only be taken by way of complaint being filed to the Magistrate concerned, certainly, the learned Chief Judicial Magistrate, Bokaro has committed an error by taking cognizance of the offence punishable under Section 138 of Negotiable Instruments Act on the basis of a police case which was initiated with an FIR. 13. In view of the discussions made above, this Court is of the considered view that continuation of the criminal proceeding will amount to abuse of process of law and this is a fit case where the Cr.M.P. No.2324 of 2018 6 entire criminal proceeding including the order dated 15.05.2018 passed by the learned Chief Judicial Magistrate, Bokaro in connection with Chas P.S. Case No. 41 of 2018, corresponding to G.R. No. 249 of 2018 be quashed and set aside. 14. Accordingly, the entire criminal proceeding including the order dated 15.05.2018 passed by the learned Chief Judicial Magistrate, Bokaro in connection with Chas P.S. Case No. 41 of 2018, corresponding to G.R. No. 249 of 2018 is quashed and set aside. 15. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 16th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2324 of 2018 7