Phudan Murmu, aged about 57 years, son of Chogo Murmu, resident of Sanskriti Sansad v. 1. The State of Jharkhand 2. Animesh Kumar Mandal, s/o late Satish Mandal, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2601 of 2022 Phudan Murmu, aged about 57 years, son of Chogo Murmu, resident of Sanskriti Sansad Marg, Beside House of Mohan Lal Das/Uttam Kuamr Das, Dahigora, P.O. & P.S.-Ghatshila, Dist.-East Singhbhum (Jharkhand) .... Petitioner Versus 1. The State of Jharkhand 2. Animesh Kumar Mandal, s/o late Satish Mandal, resident of Laldih, P.O. & P.S.-Ghatsila, Dist.-East Singhbhum, PIN 832303 (Jharkhand) …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For O.P. No.2 : Mr. Amit Kr. Das, Advocate : Mr. Sankalp Goswami, Advocate : Mr. Satish Prasad, Addl. P.P. : Mr. P.A.S. Pati, Advocate : Ms. Malsi Pathak, Advocate ….. By the Court:- 1. 2. 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 order dated 13.04.2022 passed by the learned A.C.J.M., Ghatshila in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 whereby and where under, the learned A.C.J.M., Ghatshila Cr.M.P. No.2601 of 2022 1 has taken cognizance for the offence punishable under Section 406 and 420 of Indian Penal Code. 3. 4. The brief fact of the case is that the petitioner; while posted as Manager of Ghatshila Branch of Bank of India took a friendly loan from the informant and also took Rs.1,00,000/- from the friend of the informant but did not repay the same. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Satish Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148, paragraph nos.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. The law clearly recognises a difference between simple 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. 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 the contract and cheating would depend upon 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 Cr.M.P. No.2601 of 2022 2 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 dishonest representation or inducement could be found or inferred.” It is submitted by the learned counsel for the petitioner that it is a settled principle of law that a mere breach of promise, agreement or contract does not, ipso facto, constitute the offence of criminal breach of trust; the punishment for which has been provided under Section 405 of Indian Penal Code. 5. It is next submitted by the learned counsel for the petitioner that it is also a settled principle of law that 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. It is then submitted by the learned counsel for the petitioner that the petitioner because of some financial difficulty could not repay the friendly loan in time but later on though the petitioner was ready to refund the same but the complainant became greedy and refused to accept the payment of the actual loan amount of Rs.1,00,000/- unless the petitioner pays double the amount. It is next submitted by the learned counsel for the petitioner that the petitioner moved before this Court in A.B.A. No. 914 of 2022 and has already deposited the demand draft of Rs.1,00,000/- which has been released in favour of the informant- complainant-opposite party no.2; which goes to show that there is no allegation of any dishonest intention at any point of time nor is there any allegation of misappropriation of the entrusted property. Cr.M.P. No.2601 of 2022 3 Therefore, it is submitted that even if the allegation against the petitioner are considered to be true in their entirety still neither the offence punishable under Section 406 nor the offence punishable under Section 420 of Indian Penal Code is made out. Hence, it is submitted that the entire criminal proceeding including the order dated 13.04.2022 passed by the learned A.C.J.M., Ghatshila in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 be quashed and set aside. 6. Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer to quash the entire criminal proceeding including the order dated 13.04.2022 passed by the learned A.C.J.M., Ghatshila in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 and submits that there are materials in the record to constitute both the offences punishable under Section 406 and 420 of Indian Penal Code. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that in order to constitute the offence punishable under Section 406 of Indian Penal Code, one of the ingredients is that the accused must have dishonestly misappropriated or converted to his own use or dishonestly used or disposed of the entrusted property in violation of any direction of law prescribed, the mode in which such trust is to be discharged or of any legal contract, express or implied, which the Cr.M.P. No.2601 of 2022 4 accused had made touching the discharge of such trust, or willfully suffers any other person so to do. 8. Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner took a friendly loan which he did not repay. The undisputed fact remains that the petitioner has already paid the original loan amount of Rs.1,00,000/- and the same has been given to the complainant by the orders of the court. 9. Under such circumstances, in the absence of any essential ingredients of dishonest misappropriation of the property etc. against the petitioner, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true in its entirety still the offence punishable under Section 406 of Indian Penal Code is not made out. 10. So far as the offence punishable under Section 420 of Indian Penal Code is concerned, it is a settled principle of law that the accused must have a dishonest intention right at the beginning of the transaction. There is no such allegation against the petitioner. The subsequent conduct of repayment of the friendly loan by the petitioner also did not reveal any dishonest intention on the part of the petitioner since the beginning hence, this Court is of the considered view that even if the entire allegations against the petitioner are considered to be true in its entirety, still the offence punishable under Section 420 of Indian Penal Code is not made out. 11. In view of the discussions made above, as none of the offences in respect of which cognizance has been taken by the learned A.C.J.M., Ghatshila is made out against the petitioner even if the entire Cr.M.P. No.2601 of 2022 5 allegation against the petitioner are considered to be true hence, this Court is of the considered view that continuation of the criminal proceeding in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 13.04.2022 passed by the learned A.C.J.M., Ghatshila in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 be quashed and set aside. 12. Accordingly, the entire criminal proceeding including the order dated 13.04.2022 passed by the learned A.C.J.M., Ghatshila in connection with Ghatsila P.S. Case No. 53 of 2021, corresponding to G.R. No. 94 of 2022 is quashed and set aside. 13.
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 21st June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2601 of 2022 6