Harish Kumar, aged about 45 years, son of Saryu Prasad residing near Janta Market v. 1. The State of Jharkhand 2. Prabir Kumar Palit son of Late Amiya Krishna
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2303 of 2023 Harish Kumar, aged about 45 years, son of Saryu Prasad residing near Janta Market, Govindpur, ST. Xaviers Public School, P.O. Govindpur & P.S. Govindpur, District East Singhbhum, ...... Petitioner Versus 1. The State of Jharkhand 2. Prabir Kumar Palit son of Late Amiya Krishna Palit resident of 29, Janta Market, Chota Govindpur, P.O. & P.S. Govindpur, District East Singhbhum ….. Opposite Parties For the Petitioner : Mr. Lalit Yadav, Adv. For the State For the O.P. No. 2 : Mr. Pramabir Singh Bajaj, Adv. : Ms. Priya Shrestha, Spl. PP 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 CrPC with a prayer for quashing and setting aside the entire criminal proceeding in connection with Govindpur P.S. case no. 69 of 2019 corresponding to G.R. No. 1926 of 2020 as well as the order dated 15.12.2020 whereby and where under, learned JMFC, Jamshedpur has taken cognizance of the offences punishable under Section 406/ 420 of IPC and ordered for issuance of the summons against the petitioner. 3. The allegation against the petitioner is that the petitioner being the friend of the complainant, took friendly loan of Rs. 2,50,000/- with the promise to return the same on or before May, 2019 and to secure repayment of the amount, the petitioner issued one post dated cheque for Rs. 2,50,000/-. The petitioner also executed the money receipt on 26.02.2018 but did not return the said money amounting to Rs. 2,50,000/-. The informant filed C1 case no. 1898 1 Cr.M.P. No. 2303 of 2023 of 2019 in the court of CJM, at Jamshedpur and learned CJM at Jamshedpur referred the complaint to the police under Section 156 (3) of the CrPC and on the basis of the same, Govindpur P.S. case no. 69 of 2019 was registered. The police took up investigation of the case and after completion of the investigation, police found the allegations against the petitioner to be true and submitted charge sheet against the petitioner for having committed the offence punishable under Section 406 and 420 of IPC. 4. Learned counsel for the petitioner submits that Govindpur P.S. case no. 69 of 2019 has been fixed for consideration of charge and charge has not yet been framed. It is next submitted by learned counsel for the petitioner that the allegation against the petitioner are all false and the only allegation against the petitioner is that the petitioner failed to return the loan amount and there is no allegation of any fraudulent or dishonest intention having been shown; against the petitioner right at the beginning of the transaction. It is next submitted that even if the entire allegations made against the petitioner are considered to be true in their entirety still neither the offence punishable under Section 406 and nor the offence punishable under Section 420 of IPC is made out. It is lastly submitted that the prayer of the petitioner, as prayed for in the instant Criminal Miscellaneous Petition, be allowed. 5. Learned Special P.P appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner and relying upon the judgment of the Hon’ble Supreme Court of India in the case of Lalit Chaturvedi & Ors. vs. State of Uttar Pradesh & Anr. reported in 2024 SCC OnLine SC 171, it is submitted by learned
Legal Reasoning
Special P.P appearing for the State and the learned counsel for the opposite party No.2 that for the offence of cheating, the dishonest intention must exist at the inception of the transaction, whereas in the case of criminal breach of trust, there must exist a relationship between the parties whereby, one party must entrust property, as 2 Cr.M.P. No. 2303 of 2023 per the law albeit, dishonest intention comes later, hence, it is submitted that as the petitioner is not repaying the loan amount, coupled with the fact that the petitioner has issued a cheuqe in favour of the opp. party no. 2 on 08.06.2018 even though the same does not belong to the petitioner and on checking with the bank, the opp. party no. 2 was informed that the cheque did not belong to the petitioner. It is next submitted by Special P.P. appearing for the State and the learned counsel for the opposite party no. 2 that as both the offences punishable under Section 406 and 420 of IPC is made out, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 6. Having heard the rival submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of Satishchandra Ratanlal Shah v. State of Gujarat and Another reported in (2019) 9 SCC 148 para 11 and 13 of which reads as under :- “11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with Section 406 IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that Respondent 2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit which is still pending adjudication. simple The payment/investment of money and entrustment of money or property. 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 IPC without there being a clear case of entrustment. a difference recognises between clearly law 13. Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such 3 Cr.M.P. No. 2303 of 2023 dishonest representation or inducement could be found or inferred.” (Emphasis supplied) that so far as the offence punishable under Section 406 of IPC is concerned, a mere breach of promise, agreement or contract does not ipso facto constitute the offence of criminal breach of trust. It was also observed that mere inability of an accused to return the loan amount cannot give rise to a criminal prosecution of cheating unless fraudulent and dishonest intention is shown at the beginning of the transaction as it is his mens rea which is the crux of the offence. 7. It is also a settled principle of law as has been held by 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 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) that unless there is a dishonest misappropriation of the entrusted property, the offence punishable under Section 406 of IPC is not made. 8. Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner took a friendly loan of Rs. 2,50,000/- but did not repay, though in the counter affidavit, the informant – opp. party no. 2 tried to supplement the allegation by trying to make out a case that the petitioner issued him a cheque dated 08.06.2018 that does not belong to him but such allegation 4 Cr.M.P. No. 2303 of 2023 was without any specific particulars. As the learned counsel for the opp. party no. 2 failed to say as to what was the particulars of the cheque, what was the connected bank account number of the cheque, the cheque belongs to which bank and what made the complainant not make such allegation in the complaint, which was filed on 05.07.2019; though in the compliant itself, it is stated that the date of the cheque is 08.06.2018 and the cheque remains valid for a period of three months from the date of issue. Therefore, the supplementary allegation that the petitioner issued a cheque which does not belong to him, is vague and general and omnibus in nature, as the details regarding the number of the cheque, the name of the bank or to whom the bank account belong, has not been furnished by the opp. party no. 2. 9. As indisputably, there is no allegation against the petitioner that the petitioner has played deception since the beginning of the transaction between the parties, this Court has no hesitation in holding that even if the entire allegation made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 10. So far as the offence punishable under Section 406 of IPC is concerned, there is absolutely no allegation of any dishonest misappropriation of the entrusted property against the petitioner and in the absence of the same, this Court has no hesitation in holding that even if the entire allegation made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out and the dispute between the parties is basically a civil dispute and cloak of criminal case has been given to a civil dispute for wrecking vengeance. Therefore, continuation of criminal proceeding will amount to abuse of process of law. Thus, this is a fit case where the entire criminal proceeding as well as the order dated 15.12.2020 in connection with Govindpur P.S. case no. 69 of 2019 corresponding to G.R. No. 1926 of 2020 be quashed and set aside. 5 Cr.M.P. No. 2303 of 2023 11. Accordingly, entire criminal proceeding as well as the order dated 15.12.2020 in connection with Govindpur P.S. case no. 69 of 2019 corresponding to G.R. No. 1926 of 2020 is quashed and set aside.
Decision
12. In the result, this Criminal Miscellaneous Petition is allowed. High Court of Jharkhand, Ranchi Dated, the 3rd December, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 6 Cr.M.P. No. 2303 of 2023