The High Court
Case Details
1 Cr.M.P. No. 8 of 2016 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 8 of 2016 Debashis Ghoshal, son of Late Debabrata Ghoshal, resident of Godabari Apartment, P.O. & P.S. Gopalpur, District- Asansol, West Bengal … Petitioner -Versus- 1. 2. State of Jharkhand Shyam Dutt Sharma, S/o Late Jeevan Sharma, resident of Lohar Tola, P.O., P.S. & District- Ramgarh, at present working for M/s MA Chinna Mastika Group of Companies as Manager of M/s Bhaskar Steel Pvt. Ltd., Binjhar, Ranchi Road, opposite Ashok Cinema, P.O. & P.S. Giddi, District- Hazaribag, Jharkhand … Opposite Parties ----- PRESENT HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioner For the State For O.P. No.2 : Mr. Kaushik Sarkhel, Advocate : Mr. Achinto Sen, A.P.P. : Mr. Sidhartha Roy, Advocate ----- C.A.V. on 08.02.2024 Pronounced on 17.02.2024 Heard Mr. Kaushik Sarkhel, learned counsel for the petitioner, Mr. Achinto Sen, learned counsel for the State and Mr. Sidhartha Roy, learned counsel for opposite party no.2. 2. This petition has been filed for quashing of the order dated 08.04.2015 passed by the learned S.D.J.M., Hazaribag, whereby, an application filed under Section 239 Cr.P.C. for discharge of the petitioner has been dismissed in connection with Giddi P.S. Case No.81/2011, corresponding to G.R. No.3426/2011 registered under Section 406/420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The prayer is also made for quashing of the order dated 14.10.2015 passed by the learned Sessions Judge, Hazaribag in Criminal Revision No.76/2015, 2 Cr.M.P. No. 8 of 2016 whereby, the revision application preferred against the order dated 08.04.2015 has been dismissed, pending in the Court of the learned S.D.J.M., Hazaribag. 3.
Legal Reasoning
The FIR was registered on the written report of Sham Dutt Sharma, who is the Manager of new established company, namely, Bhaskar Steel Pvt. Ltd. of Maa Chhinnamastika Group of Company alleging therein that the petitioner-Debashish Ghoshal, Managing Director of Asansol Infotech and Industrial Consultancy Pvt. Ltd. whose registered office is at G.T. Road, Godavari Apartment, Gopalpur, Asansol came to the informant's office on 10.08.2011 and gave some materials, brochures and C.D. to the informant and said that he has brought some new technology from China and asked the informant to build a new factory, it would give lots of benefit. It was further alleged that the petitioner taking the informant into confidence took a cheque of Rs.51,00,000/- Lakh and remained absconded for three months. When the informant made enquiry then he came to know that there is no such technology from China and when the informant put the cheque for encashment then the cheque was bounced for insufficient fund and stop payment. 4.
Legal Reasoning
Mr. Kaushik Sarkhel, learned counsel for the petitioner submitted that the investigation was not made in accordance with law. He submitted that the Investigating Officer has submitted final form in absence of any cogent material against the petitioner and the petitioner has been put to trial. He further submitted that no case under Sections 406 and 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act is made out. He also submitted that the entire case of prosecution is devoid of criminal mens rea and the instant prosecution is merely a misuse of the process of 3 Cr.M.P. No. 8 of 2016 law. By way of referring the contents of the FIR, he submitted that if any case is made out i.e. under Section 138 of the Negotiable Instruments Act and no case under the Indian Penal Code is made out. He further submitted that merely dishonour of the cheque in view of the stop payment endorsement made by the petitioner to the bank, if any is made out, however, wrongly the case has been registered under Sections 406 and 420 of the Indian Penal Code and charge-sheet has been submitted. He also submitted that since within mandatory provision, notice with regard to payment of cheque was not made and that is why, false FIR was registered. He further submitted that the cheque in question being chief material exhibit, was not produced by the informant in course of the investigation and the said cheque is not part of the documents submitted by the Investigating Officer under Section 173(3) Cr.P.C. along with final form. He submitted that the informant has concealed the fact that there is existence of an agreement between the Director of M/s Ma Chinnamastika Sponge Iron Private Limited, namely, Pradip Bhardwaj and the employer of the informant and the terms and conditions of the said agreement discuss entire gamut of business proposition and its transactions between the parties to the agreement, which also contained the arbitration clause. He further submitted that the said cheque was taken by the Director of M/s Ma Chinnamastika Sponge Iron Private Limited, namely, Pradip Bhardwaj from the petitioner at the gun point by putting him in tremendous fear of life. He submitted that the entire case of prosecution is lacking in view of the evidentiary materials on the record. He further submitted that the petitioner filed the discharge petition under Section 239 Cr.P.C., which was rejected by the learned Trial Court vide order dated 08.04.2015, against that, the 4 Cr.M.P. No. 8 of 2016 petitioner preferred Criminal Revision No.76/2015, which was also dismissed vide order dated 14.10.2015. He further submitted that the allegation with regard to coming to the premises and convinced with regard to issue the cheque of Rs.51 Lakhs is false. He submitted that the petitioner was taking several works of the said company since 2007 and one of such work was undertaken by the parent company i.e. M/s Ma Chinnamastika Sponge Iron Private Limited, which has issued a work completion certificate vide letter dated 09.02.2010, contained in Annexure-4. By way of referring Annexure-6, he submitted that by letter dated 21.10.2011, the petitioner has stated about manufacturing status of plant and equipment for 500 TPD iron ore sinter and 100 TPD briquetting/pellesting plant as on date and also for clearing the dues of Rs.7,57,774/- by giving details of work done. He submitted that another letter dated 01.11.2011 was sent and request was made for payment of rest of the amount of Rs.43,61,840/-. He also submitted that the said cheque was obtained from the petitioner at the gun point by putting him in tremendous fear of life and, thereafter, the complainant/informant filed P.C. Case No.101/2011. He further submitted that M/s Asansol Infotech and Industrial Consultancy Services Limited (AIICSL) has issued legal notice dated 14.11.2011 through Advocate addressed to the informant demanding to return of cheque and balance payment of Rs.44,00,000/- within 7 days. On these facts, he submitted that no case of cheating under Sections 406 and 420 of the Indian Penal Code as well as under Section 138 of the Negotiable Instruments Act is made out. He relied upon the judgment passed by Patna High Court in the case of Praveen Kumar v. The State of Bihar in Criminal Miscellaneous No.25231 of 2011 and 5 Cr.M.P. No. 8 of 2016 submitted that in identical situation, Patna High Court has been pleased to set aside the order taking cognizance so far as Section 138 of the Negotiable Instruments Act is concerned. He further submitted that mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement and if that is lacking, the proceeding under Sections 406 and 420 of the Indian Penal Code is not warranted. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others v. Nimra Cerglass Technics (P) Limited and others, reported in (2016) 1 SCC 348. Paragraphs 14, 15 and 16 of the said judgment read as under: “14. In the light of the well-settled principles, it is to be seen whether the allegations made in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating. 15. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not 6 Cr.M.P. No. 8 of 2016 been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar v. State of Bihar [(2002) 1 SCC 241 : 2002 SCC (Cri) 129] , this Court held as under: (SCC p. 250, para 21) “21. … In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.”