The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2643 of 2022 1. Dhananjay Mishra, aged about 58 years, son of Late O.D. Mishra, resident of Bunglow No. 7, Hill View Road, Nothern Town, near Beldih Church, P.O. and P.S.- Bistupur, Town- Jamshedpur, Dist.- East Singhbhum, Jharkhand 2. Anil Kumar Sharma, aged about 50 years, son of Late Parmeshwar Sharma, resident of DNS Road, Liluah, Bally (M), Howrah, Liluah, Dist.- Howrah, West Bengal 3. D.V. Ratnakar, aged about 52 years, son of Kameshwar Rao Desari, resident of 10-B, 39-2, Bank Colony Road Rajalingam Peta, Bheemunipatam, Vishakapatnam, Dist.- Vishkapatnam, Andhra Pradesh ...... Petitioners Versus 1. The State of Jharkhand 2. Virendra Kumar, son of Rama Shankar Panday, resident of H.No. 03, Dun Road, Old Baridih, P.O. and P.S.- Sidgora, Dist.- East Singhbhum, Jharkhand ….. Opposite Parties For the Petitioners : Mr. Indrajit Sinha , Adv. Mr. Sagar Kumar , Adv. For the State : Mrs. Priya Shrestha, Spl. PP P R E S E N T
Legal Reasoning
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 the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding initiated against the petitioners including the First Information Report in connection with Sidgora P.S. case no. 62 of 2022 and for quashing the order dated 09.01.2023 passed by learned JMFC, Jamshedpur in the said case, whereby and 1 Cr.M.P. No. 2643 of 2022 whereunder cognizance has been taken against the petitioners for having committed the offences punishable under Sections 406, 420, 34 of the IPC; after submission of the charge sheet against them. 3. It is submitted by learned counsel for the petitioners that the allegation against the petitioners is that the petitioners being the officers of JUSCO have not paid the money of informant who was a contractor under the JUSCO, engaged for carrying out certain work. It is next submitted that the petitioner no. 1 is the Senior General Manager, Jharkhand Business, the petitioner no. 2 is the Deputy Chief Manager EPC Water and the petitioner no. 3 is the Manager, EPC Water. It is next submitted that though the work order was issued to the informant but the informant did not complete the work assigned and left the work unfinished. It is next submitted that officers of TATA Steel USIL called upon the informant for verification of the incomplete work and submission of the necessary documents related to it and consequent upon the discussion, the parties signed two minutes of meeting, according to which, TATA Steel USIL has already paid Rs. 5,08,079/- to the informant. It is next submitted that the informant has also filed Complaint Case No. 908 of 2020 pending in the court of learned CJM, Jamshedpur and there is no allegation of entrustment of any money or property to the petitioners nor there is any allegation of dishonest misappropriation nor there is any allegation against the petitioners of playing any deception since beginning of the transaction between the parties; therefore at best a civil dispute made out against the petitioners. 4. It is next submitted by learned counsel for the petitioners by relying upon the judgment of the Hon’ble Supreme Court of India Binod Kumar and others v. State of Bihar and another reported in (2014) 10 SCC 663, para 18 of which reads as under :- 2 Cr.M.P. No. 2643 of 2022
Decision
“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 it is a settled principle of law that in order to constitute the criminal breach of trust, it must be shown that the accused person dishonestly disposed of any entrusted property or dishonestly retained the same. 5. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Anr. reported in (2007) 7 SCC 373, paragraph no. 8 of which reads as under :- “8. The dispute between the parties herein is essentially a civil dispute. Non- payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus: “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust’.” Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” (Emphasis supplied) it is submitted that it is a settled principle of law that if the dispute between the parties is essentially a civil dispute, non - payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 6. Learned counsel for the petitioners also relies upon the judgment of this court in Nidhi Gupta vs. The State of Jharkhand & Anr. passed in CrMP 3448 of 2021 dated 08.05.2024, wherein this court relied upon the judgment of the of Hon’ble Supreme Court of India in the case of Uma Shankar 3 Cr.M.P. No. 2643 of 2022 Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph no. 6 of which reads as under :- 6. Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) Wherein the Hon’ble Supreme Court of India reiterated the settled principle of law that if the intention to cheat has developed later on, the same cannot amount to cheating. It is next submitted that even if the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 or 420 of IPC is not made, hence, the continuation of this criminal proceeding will amount to abuse of process of law. It is lastly submitted that the prayer as made in this criminal miscellaneous petition be allowed. 7. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer, as prayed for in this Criminal Miscellaneous Petition and submits that there is direct and specific allegation of committing the offence of cheating and criminal breach of trust, hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is the settled principle of law that in order to constitute the offence punishable under Section 406 of IPC, it is not sufficient to show that the money has been retained by the accused person, it has also to be shown that the accused person, dishonestly, disposed of the same in some way or dishonestly retained the same. 9. Now coming to the facts of the case, there is no allegation of breach of trust of any property to the petitioners and it appears that on behalf of the company, in the name and style of TATA Steel USIL, the work was assigned to the informant and there is 4 Cr.M.P. No. 2643 of 2022 dispute regarding whether the work has been completely done by the informant or not. 10. Under such circumstances, this court is of the considered view that as there is no allegation of any entrustment of any property to the petitioner or the petitioner having dominion of over any property and in the absence of the allegations regarding this essential ingredients of the offence punishable under Sections 406 of IPC, being absent against the petitioners, this court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out against the petitioners. 11. So far as the offence punishable under Section 420 of IPC is considered, it is a settled principle of law that in order to constitute offence of cheating, the accused must have played deception since the beginning of the transaction between the parties. Now coming to the facts of the case, there is no allegation against the petitioners of having played any deception since the beginning of the transaction rather it is the case of the informant that some bills of the informant has also been passed. 12. Under such circumstances, this court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out against the petitioners. 13. Because of the discussions made above, this Court is of the considered view that the continuation of this criminal proceeding will amount to abuse of process of law, therefore, this is a fit case, where the entire criminal proceeding and the order dated 09.01.2023 passed in connection with Sidgora P.S. case no. 62 of 2022 be quashed and set aside against the petitioners. 5 Cr.M.P. No. 2643 of 2022 14. Accordingly, the entire criminal proceeding and the order dated 09.01.2023 passed in connection with Sidgora P.S. case no. 62 of 2022 is quashed and set aside against the petitioners. 15. In the result, this Criminal Miscellaneous Petition, is allowed. High Court of Jharkhand, Ranchi Dated, the 21st August, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 6 Cr.M.P. No. 2643 of 2022