The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 858 of 2017 1. Sk. Taher Ali 2. Jasmina Yasmin -Versus- … Petitioners The State of Jharkhand 1. 2. M/s Maruti Construction (a partnership firm) represented through … Opposite Parties Birendra Pasad, Jamshedpur CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- ----- For the Petitioners For the State For O.P. No.2
Legal Reasoning
: Ms. Shruti Shrestha, Advocate : Mr. Bhola Nath Ojha, Spl.P.P. : Mr. Pankaj Kumar, Advocate ----- 04/03.07.2024 Heard Ms. Shruti Shrestha, learned counsel for the petitioners, Mr. Bhola Nath Ojha, learned counsel for the State and Mr. Pankaj Kumar, learned counsel for opposite party no.2. 2. The prayer in the petition is made for quashing of the entire criminal proceeding including the order taking cognizance dated 22.06.2016 arising out of Complaint Case No.581 of 2016, pending in the Court of the learned Judicial Magistrate, 1st Class, Jamshedpur. 3. The complaint case has been filed alleging therein that the complainant is a partnership firm and is engaged in building construction and development work. The accused persons have 34 kathas of land in Bankura situated in Mouza Demuarari, Gopinathpur (West Bengal) approached the complainant at its Jamshedpur office to develop the aforesaid land and the complainant agreed for the same. Both the parties entered into a development agreement on 03.10.2013 and as per the agreement, Rs.10,00,000/- was paid to the accused persons as an advance -1- Cr.M.P. No. 858 of 2017 amount. It was further alleged that the complainant paid Rs.6,07,936/- to the accused persons for other works like building map, site plant fee, development fee, labour cess building plan fee etc. Substantial work was done thereafter by the complainant on the said land, but the development agreement dated 03.10.2013 got terminated with the consent of both the parties and it was agreed that the accused persons shall return the advance of amount of Rs.10,00,000/- and Rs.6,07,936/- and agreement was executed by the accused persons for returning Rs.6,07,936/- to the complainant if the same building plan No.324/b dated 17.01.2014 passed by Bankura Municipality is used by the accused persons for further development of the aforesaid land. In December, 2015, the complainant came to know that the accused persons had made agreement with some other builder to develop the aforesaid land and have started work upon the land, but refused to pay the balance amount of Rs.6,07,936/- to the complainant and, hence, they have cheated the complainant and misappropriated the money of the complainant for their own use. 4. Ms. Shruti Shrestha, learned counsel for the petitioners submits that for breach of contract, if any, criminal case has been filed. She submits that the allegation in the complaint petition is made that sum of Rs.10 Lakhs was returned pursuant to development agreement, however, sum of Rs.6,07,936/- was not returned. She further submits that they have tried to make out the case by way of stating that building plan meant for construction on the plot of opposite party no.2 was being used and as such -2- Cr.M.P. No. 858 of 2017 the said demand was made. She submits that the complainant has not filed any case of specific performance, however, the complaint case has been filed, which is a malicious prosecution and in a civil case, criminal colour has been provided. She also submits that the petitioners are not using building plan, which was meant for development of land of opposite party no.2. According to her, the different building plans have been used and liability in terms of agreement can only be fastened upon the petitioners if the same building plant is being used in construction. She submits that if any case is made out i.e. civil in nature, however, criminal case has been filed. 5. Mr. Bhola Nath Ojha, learned counsel for the State submits that the matter is arising out of an agreement and on the complaint petition, the learned Court has been pleased to take cognizance against the petitioners. 6. Mr. Pankaj Kumar, learned counsel for opposite party no.2 submits that the petitioners have already returned the sum of Rs.10 Lakhs, however, the amount of Rs.6,07,936/- was not returned in terms of the agreement as the same building plan was used. He submits that in view of that, the case against the petitioners is made out. 7. Looking into the contents of the complaint case, it is admitted fact that the amount of Rs.10 Lakhs has been returned to the complainant by the petitioners, as has been stated in paragraph X of the complaint petition and it has been stated in paragraph IX of the complaint petition that the amount of Rs.6,07,936/- has not been returned to the complainant. Thus, it is not a case of intention to cheat from very beginning in light of Section -3- Cr.M.P. No. 858 of 2017 420 of the Indian Penal Code which is defined under Section 415 of the Indian Penal Code. This fact is is also reiterated in the solemn affirmation. 8. Breach of contract cannot be a subject matter for criminal proceeding. Time and again, this practice has been deprecated by the High Courts as well as the Hon'ble Supreme Court. The facts of the present case is very clear that the dispute in parties relates to breach of contract. A mere breach of contract by one of the parties would not attract prosecution for criminal offence in every case, as has been held by the Hon'ble Supreme Court in the case of Sarabjit Kaur v. State of Punjab and another, reported in (2023) 5 SCC 360. 9. Further, in the case of Vesa Holdings (P) Ltd. v. State of Kerala, reported in (2015) 8 SCC 293, it has been held by the Hon'ble Supreme Court that every breach of contract would not give rise to the offence of cheating and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise. 10. The return of sum of Rs.10 Lakhs clearly suggests that from the very beginning, intention to cheat was not there and only claim is made that sum of Rs.6,07,936/- is not returned. If such dispute is there, that is clearly civil in nature and in absence of filing any money suit, complaint case has been filed, which amounts to abuse of process of law and, as such, the entire criminal proceeding including the order taking cognizance dated 22.06.2016 arising out of Complaint Case No.581 of 2016, pending in the Court of the learned Judicial Magistrate, 1st Class, Jamshedpur are, hereby, quashed. 11.
Decision
Accordingly, this petition is allowed and disposed of. -4- Cr.M.P. No. 858 of 2017 12. It is made clear that if any civil suit is there, that will be decided in accordance with law without prejudiced to this order. 13. Pending I.A., if any, is disposed of. 14. Interim order, if any granted by this Court, is vacated. Ajay/ (Sanjay Kumar Dwivedi, J.) -5- Cr.M.P. No. 858 of 2017