Amit Srivastav @ Amit Kumar Srivastav, aged about 48 years, son of Shailesh Kumar v. 1. The State of Jharkhand 2. Kanchan Ojha, wife of Rajesh Kumar Ojha, resident
Case Details
1 Cr.M.P. No. 2036 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2036 of 2023 Amit Srivastav @ Amit Kumar Srivastav, aged about 48 years, son of Shailesh Kumar Akhaury, resident of Dream Destination, Indrapuri Road no. 2, Ratu Road, P.O.- Hehal, P.S.- Sukhdeo Nagar, District- Ranchi (Jharkhand) ...... Petitioner Versus 1. The State of Jharkhand 2. Kanchan Ojha, wife of Rajesh Kumar Ojha, resident of Narayan Enclave, Block-B, Flat No. 501, P.O & P.S.- Sadar, Ranchi, Dist.- Ranchi (Jharkhand) ….. Opposite Parties For the Petitioners For the State For the O.P. No. 2 : Mr. Amresh Kumar, Adv. : Mr. Shialesh Kr. Sinha , Addl.PP : Mr. Naresh Pd. Thakur , Adv. P R E S E N T
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) submits that there is no allegation that the petitioner had any intention of cheating since the inception, rather the petitioner has paid admittedly, part of the dues of the informant and the occurrence, admittedly, took place in course of business transaction between the parties hence, it is submitted that no offence punishable under Section 420 of IPC is made out. 5. Learned counsel for the petitioner next relies upon the judgment in the case of the Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663, para 18 of which reads as under :-
Arguments
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 Cr.P.C. with a prayer for quashing the entire criminal proceeding as well as the order taking cognizance dated 10.04.2023 passed in Sadar P.S. case no. 550 of 2021 corresponding to G.R. No. 998 of 2023 by which , learned JMFC, Ranchi has taken cognizance for the offence punishable under Sections 406, 420, 341, 323, 504, and 506 of IPC. 3. The brief facts of the case is that the petitioner took some stone chips from the husband of the informant on credit and there was dues of Rs. 1,02,00,000/- and upon the pressure being put by the informant and the husband of the informant through others, the petitioner has paid Rs. 44,50,000/- but he is not paying the remaining amount and thereby cheated and caused criminal breach of trust as well as, on one occasion, he and his wife, abused and manhandled the informant when the informant went to demand the money payable by the petitioner, to her husband. 2 Cr.M.P. No. 2036 of 2023 4. Learned counsel for the petitioner relying upon the judgment in the case of the Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph no. 6 of which reads as under :-
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 utilized 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) and submits that it being a settled principle of law, that to make out a case of criminal breach of trust, it has to be shown that the accused dishonestly disposed of the entrusted property in some way or dishonestly retained the same, hence, in the absence of the same, the offence punishable under Section 406 of IPC is not made out and in this case, there is no allegation that the petitioner dishonestly, retained or mis-appropriated entrusted stones rather there is delay in payment of the money, claimed by the husband 3 Cr.M.P. No. 2036 of 2023 of the informant from the petitioner, hence, the allegation also do not make out the offence punishable under Section 406 of IPC. 6. Learned counsel for the petitioner also relies upon the judgment of this Court passed in CrMP no. 2584 of 2022 in the case of Saurav Ghose Chouwdhary @ Saurav Ghose Chowdhary @ Sourav Ghosh Choudhury vs. The State of Jharkhand & Anr. in which, this court relied upon the judgment of the Hon’ble Supreme Court of India, in the case of the Uma Shankar Gopalika vs. State of Bihar & Anr. (supra) and Binod Kumar & Ors. Vs. State of Bihar & Anr. (supra) and in the facts of that case, when admittedly, there was long standing business transaction between the parties, and there was no allegation against the petitioner of dishonestly retaining the money of the complainant, this court quashed the entire criminal proceeding against the accused person of that case, hence, it is submitted that the entire criminal proceeding as well as the order taking cognizance dated 10.04.2023 passed in Sadar P.S. case no. 550 of 2021 corresponding to G.R. No. 998 of 2023 be quashed and set aside. 7. Learned Addl. PP and learned counsel for the opp. party no. 2 vehemently opposes the prayer for quashing the entire criminal proceeding as well as the order taking cognizance dated 10.04.2023 passed in Sadar P.S. case no. 550 of 2021 corresponding to G.R. No. 998 of 2023 and submits that the allegations made in the FIR , statement of the witnesses and other materials collected during the investigation, it is sufficient to make the offence of which cognizance has been taken, hence, it is submitted that there being no merit in this criminal miscellaneous petition, hence, the same be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that there is no allegation, that the petitioner had any dishonest or fraudulent intention since the beginning of the transaction rather it is the admitted case of the petitioner that the petitioner paid substantial amount of money to the husband of the informant, hence, this court is of the considered view that even if 4 Cr.M.P. No. 2036 of 2023 the entire allegations made in the FIR are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 9. So far as the offence punishable under section 406 of the Indian Penal Code is concerned, admittedly, there was long standing business transaction between the parties and there is no allegation against the petitioner of any dishonest misappropriation of the property entrusted to him and the only allegation is that the petitioner has made default in payment of money, due to the husband of the informant, in course of the business transaction. In view of the principle of law as discussed above, this court has no hesitation in holding that the same is not sufficient to constitute the offence punishable under Section 406 of IPC. 10. So far as the offence punishable under Seciton 323 and 341 of IPC is concerned, there is no allegation against the petitioner of having either voluntarily causing hurt or wrongfully restraining the informant or anybody else, hence, this court has no hesitation in holding that the contents of the FIR , even if considered to be true in its entirety, still the offence punishable under Section 341 or 323 of IPC is not made out. 11. So far as the offence punishable under Section 504 and 506 of IPC is concerned, the only allegation against the petitioner is that he abused the informant with obscene words and the exact words uttered by the petitioner, has not been mentioned in the FIR nor there is any allegation that the alarm was raised in the mind of the informant by such abuse nor there is allegation that the abuse was of such nature as would provoke the informant or anybody else, to commit breach of peace or any other offence, hence, in the considered opinion of this court, the offences punishable under Sections 504 or 506 of IPC is also not made out, even if the contents of the FIR are considered to be true in its entirety. 12. In view of the discussions made above, this court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and 5 Cr.M.P. No. 2036 of 2023 it is a fit case, where the entire criminal proceeding as well as the order taking cognizance dated 10.04.2023 passed in Sadar P.S. case no. 550 of 2021 corresponding to G.R. No. 998 of 2023 be quashed and set aside. 13. Accordingly, entire criminal proceeding as well as the order taking cognizance dated 10.04.2023 passed in Sadar P.S. case no. 550 of 2021 corresponding to G.R. No. 998 of 2023 is quashed and set aside. 14. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 26th February, 2024 Smita /AFR (Anil Kumar Choudhary, J.)