Rajesh Sanei, Son of Sri Bhawarilal Sanei, aged about 53 years, Resident of -14 v. 1. The State of Jharkhand 2. Nirmal Kumar Pradeep Kumar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1987 of 2021 Rajesh Sanei, Son of Sri Bhawarilal Sanei, aged about 53 years, Resident of -14, Ashoka Road, Alipore, Ashoka Building, Flat No. 10AB, 10th Floor, P.O. and P.S. –Alipore, District –South 24 Parganas, Kolkata -700027, West Bengal. .... Petitioner Versus 1. The State of Jharkhand 2. Nirmal Kumar Pradeep Kumar (HUF), through its Karta Pradeep Kumar Jain, R/o Near Godrej Showroom, Main Road, P.O. –G.P.O., P.S. –Lower Bazar, District –Ranchi, State –Jharkhand. …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For the O.P. No.2 : Mr. Soumitra Baroi, Advocate : Mr. Manoj Kumar, G.A. –III : Mr. Bibhash Sinha, Advocate ….. By the Court:- 1. 2.
Legal Reasoning
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 F.I.R. being Lower Bazar P.S. Case No. 46 of 2019 corresponding to G.R. Case No. 3487 of 2020 as well as charge sheet filed in the case as also the order taking cognizance dated 05.01.2021, passed by the learned Judicial Magistrate -1st Class, Ranchi. 3. The allegation against the petitioner is that the petitioner with the intention to deceive the complainant-informant since the beginning induced the complainant to pay Rs.50,00,000/- to him 1 Cr.M.P. No.1987 of 2021 and with the intention to deceive the complainant-informant of further more amount paid the interest of Rs.50,00,000/- loan he has taken for some time and thereby induced the complainant- informant to trust him and to give further loan of Rs.50,00,000/- again but after that has cheated the complainant by dishonestly inducing him to pay rupees one crore and has committed criminal breach of trust by dishonest misappropriation of the said property. On the basis of the complaint being referred to police under Section 156(3) Cr.P.C., Lower Bazar P.S. Case No. 46 of 2019 was instituted and after investigation of the case, police submitted charge sheet against the petitioner for having committed the offences punishable under Section 406/420 of the Indian Penal Code and vide order dated 05.01.2021, the learned Judicial Magistrate -1st Class, Ranchi has found prima facie case under Section 406/420 of the Indian Penal Code against the petitioner and took cognizance of the said offences and ordered for issuing summons to the petitioner. 4. It is submitted by the learned counsel for the petitioner that in the complaint itself, which upon being referred to police under Section 156(3) Cr.P.C., the F.I.R. of the case has been registered, there is allegation of series of commercial transaction having been done between the parties and as such no criminality can be inferred. It is next submitted that there is no allegation of any motive to cheat or commit breach of trust from the inception of the transactions. It is then submitted that primarily the dispute is 2 Cr.M.P. No.1987 of 2021 a personal dispute of civil nature between the parties, hence a criminal proceeding is abuse of process of law. It is next submitted that even though the allegation made against the petitioner are treated to be true still, no offence of cheating or criminal breach of trust is made out. It is next submitted that the opposite party no.2 has received Rs.20,00,000/- from the petitioner towards part reimbursement of the entire loan amount. It is then submitted that the amount was given to the petitioner as a friendly loan and the petitioner was in bonafide manner repaying the same as per understanding but the opposite party no.2 insisted and pressurized the petitioner to repay the entire amount at one go and further demanded interest which resulted in differences between the parties. It is next submitted that the complainant has suppressed the fact of receipt of Rs.20,00,000/- from the petitioner. 5. The learned counsel for the petitioner relying upon the Judgment of Hon’ble Supreme Court of India in the case of Satishchandra Ratanlal Shah Vs. State of Gujarat and Ors., reported in (2019) 9 SCC 148, para -11 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. The law clearly recognises a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a 3 Cr.M.P. No.1987 of 2021 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.” Submits that as the dispute arises out of a loan transaction between the parties, hence no criminal offence will be made out. 6. The learned counsel for the petitioner next relies upon the Judgment of Hon’ble Supreme Court of India in the case of Dinesh Gupta Vs. The State of Uttar Pradesh & Anr., in the Criminal Appeal arising out of S.L.P. (Crl.) No. 3343 of 2022 dated 11.01.2024 submits that the Hon’ble Supreme Court in that case has taken note of the trend of the litigants pursuing criminal charges with a motive to seek personal vengeance rather than seeking true justice even if the dispute involves financial transactions and agreement which, without quarrel places it in the realm of civil and commercial law. 7. Learned counsel for the petitioner then relied upon the Judgment of Hon’ble Supreme Court of India in the case of Mitesh Kumar J. Sha Vs. The State of Karnataka and Ors., reported in MANU/SC/0986/2021:AIR 2021 SC 5298 wherein the Hon’ble Supreme Court of India reiterated the innumerable instances where the Hon’ble Apex Court has expressed its disapproval for imparting criminal colour to a civil dispute. 8. The learned counsel for the petitioner also relies upon the Judgment of this Court in Cr.M.P. No. 1221 of 2022 dated 27.06.2023 wherein this Court has also referred to the tendency to 4 Cr.M.P. No.1987 of 2021 use proceedings before the criminal courts to settle score or to pressurize parties to settle civil dispute. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 9. The learned G.A.-III and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer to quash the entire criminal proceeding including the F.I.R. being Lower Bazar P.S. Case No. 46 of 2019 corresponding to G.R. Case No. 3487 of 2020 as well as charge sheet filed in this case as also the order taking cognizance dated 05.01.2021, passed by the learned Judicial Magistrate -1st Class, Ranchi. It is submitted by
Legal Reasoning
the learned counsel for the opposite party no.2 that there is no law that under no circumstances, if there is a civil remedy that will bar the doors of a criminal court. It is then submitted by the learned counsel for the opposite party no.2 that here in this case, it is the specific case of the complainant since the beginning as specifically mentioned in para-12 at page no.41 of the brief that it was the intention of the petitioner since the beginning to deceive the complainant and with that modus operandi he first paid only the interest of Rs.50,00,000/- he took from the complainant, not with the intention to repay the same but only to allure the complainant to give further loan of Rs.50,00,000/- and hence it is out and out a case of both cheating and of criminal breach of trust; as the petitioner has dishonestly misappropriated the said amount of money taken by him. It is next submitted that since the 5 Cr.M.P. No.1987 of 2021 complainant-informant has categorically mentioned about payment of money towards interest by the petitioner to the complainant, so the allegation of suppression of facts by the complainant-informant is out and out false. 10. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Indian Oil Corporation Vs. NEPC India Limited and Ors., reported in (2006) 6 SCC 736, para -36 and 38 of which reads as under:- “36. In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud IOC, had induced IOC to resume supply of aircraft fuel on cash-and-carry basis, by entering into a further agreement dated 20-9-1997 and undertaking to clear the outstanding amount of Rs 18 crores approximately within the time stipulated in the hypothecation agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs 18 crores, entered into a fresh agreement dated 20-9-1997 agreeing to clear the outstanding amount as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20-9-1997 were on cash-and-carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within Section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage. Conclusion 38. In view of the above discussion, we find that the High Court was not the justified entirety. The proceedings complaints/criminal allegations in the complaints are sufficient to constitute offences under Sections 415 and 425 IPC. We accordingly allow these appeals in part and set aside the order of the High Court insofar as it quashes the complaints under in quashing in 6 Cr.M.P. No.1987 of 2021 Sections 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC insofar as offences under Sections 415 and 425 IPC. Parties to bear their respective costs.” It is submitted by the learned counsel for the opposite party no.2 that by giving of further loan of Rs.50,00,000/- by the opposite party no.2; does not absolves the petitioner of the offence committed by him of cheating and criminal breach of trust and hence, certainly the offence punishable under Section 420 of the Indian Penal Code is made out in this case. 11. The learned counsel for the opposite party no.2 next relies upon the Judgment of a Coordinate Bench of this Court in the case of Pankaj Lohariwal Vs. State of Jharkhand & Anr., in W.P.(Cr.) No. 300 of 2015 wherein in the facts of that case, where the complainant’s-company supplied 100 MT of carbon electro paste and the petitioner’s company paid the price of the aforesaid carbon paste, it was further alleged that the petitioner’s company paid above amount with a view to induce the complainant to believe that the petitioner is a genuine customer, but actually the petitioner’s intention was not good, because later on when the complainant’s company supplied carbon electro paste to the petitioner’s company worth Rs.61.27 lacs, the petitioner’s company did not pay the said amount and cheated the complainant’s company, the Coordinate Bench dismissed the writ application and the Petition for Special Leave to Appeal (Crl.) No. 7 Cr.M.P. No.1987 of 2021 53 of 2016 was withdrawn by the petitioner therein from the Hon’ble Supreme Court of India. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 12. 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 that availability of a civil remedy is not a bar for pursuing with the criminal case if from the facts of a particular case both civil remedy as well as criminal offence is made out. 13. Now coming to the facts of the case, it is the case of the complainant-informant since the beginning that the petitioner had the intention of deceiving the complainant-informant since the beginning and with that intention in mind, he first created a belief in the mind of the complainant-informant that he is in fact a genuine person and thus allured and induced the complainant- informant to part with further amount of Rs.50,00,000/- but thereafter he revealed his true colour and after dishonestly inducing the complainant-informant to deliver the additional Rs.50,00,000/- did not pay the same. Thus in the considered opinion of this Court, if the allegations made in the F.I.R., Charge Sheet and the materials collected during the investigation of the case are considered to be true in their entirety, then the offence punishable under Section 420 of the Indian Penal Code is made 8 Cr.M.P. No.1987 of 2021 out. Hence this is not a fit case where the prayer as made for by the petitioner in this criminal miscellaneous petition be allowed. 14. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated the 13th March, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 9 Cr.M.P. No.1987 of 2021