1. Sabita Motilal aged about 36 years, w/o late Ashok Kumar Motilal 2. Rahul v. 1. The State of Jharkhand 2. Raj Kumar Gupta, son of late Rajendra Prasad
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2099 of 2021 1. Sabita Motilal aged about 36 years, w/o late Ashok Kumar Motilal 2. Rahul Kumar Motilal, aged about 39 years, s/o late Ashok Kumar Motilal both residents of … Netai Nagar, Near Metro Cash and Carry E.M. Byepass, Jai Ma Karuna MI Tower, Kolkata-700099, P.S.-Purba Jadavpur, Dist.-24 Pargana (S) .... Petitioners Versus 1. The State of Jharkhand 2. Raj Kumar Gupta, son of late Rajendra Prasad Gupta, resident of Badam Bazar, P.O. & P.S.-Sadar, Dist.-Hazaribagh …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2
Legal Reasoning
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) Cr.M.P. No.2099 of 2021 5 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. 9. Now coming to the facts of the case, there is no allegation against the petitioners that the petitioners played any deception at the very inception as they themselves were not even parties to the agreement for sale entered into between the informant and Ashok Kumar Motilal. Thus, under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioners are considered to be true still the offence punishable under Section 420 of Indian Penal Code is not made out. 10. 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) Cr.M.P. No.2099 of 2021 6 that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons. It must also be shown that the accused persons dishonestly
Arguments
: Mr. Pratik Sen, Advocate : Mr. Deepankar, AC to GA III : Mr. Manoj Kumar, GA III : Mr. Arun Kumar, 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 in connection with Sadar P.S. Case No. 236 of 2018, corresponding to G.R. No.1147 of 2018 including the order dated 19.03.2021 passed by the learned Chief Judicial Magistrate, Hazaribagh by which cognizance has been taken Cr.M.P. No.2099 of 2021 1 by the learned Chief Judicial Magistrate, Hazaribagh upon submission of the charge sheet. 3. The brief fact of the case is that the informant entered into an agreement for sale of a property with the husband of the petitioner no.1 who is also the father of the petitioner no.2 and the petitioners are not parties to the said agreement but they have signed the said agreement in capacity of the witnesses of the said agreement. It is alleged that the husband of the petitioner no.1 namely Ashok Kumar Motilal who is also the father of the petitioner no.2 died after about a year of execution of the agreement for sale but did not execute the sale deed and the petitioners later on demanded Rs.20,00,000/- and though Rs.10,00,000/- has been paid to the petitioner no.2 through bank transaction and another Rs.10,00,000/- by way of cash, the petitioner no.2 did not execute the sale deed as promised by his father. 4. It is submitted by the learned counsel for the petitioners that the allegations against the petitioners are false. It is next submitted by the learned counsel for the petitioners that the informant has suppressed the material facts that the informant filed Title Suit No. 87 of 2017 prior to lodging of this FIR in the court of Civil Judge, Senior Division-I, Hazaribagh with a prayer for specific performance of contract entered into between him and the said Ashok Kumar Motilal and during the pendency of the said suit; by suppressing the material facts they have instituted this false case only for wreaking vengeance and pressurizing the petitioners not to contest Title Suit No. 87 of 2017, in which the petitioners are the defendants. It is Cr.M.P. No.2099 of 2021 2 further submitted by the learned counsel for the petitioners that the informant has suppressed the material fact that Ashok Kumar Motilal executed a general power of attorney in favour of the son of the informant vesting power upon the son of the informant to execute the sale deed in respect of the land in question in favour of the informant and this fact has also been suppressed by the informant in the FIR by not specifically mentioning the same though a copy of the general power of attorney was annexed with the FIR, a copy of which has been kept at page no. 44 of the brief. It is next submitted by the learned counsel for the petitioners that charge sheet has been submitted alleging commission of the offences only under Sections 406 and 420 of Indian Penal Code but though neither of the offences is made out still the learned Chief Judicial Magistrate, Hazaribagh has taken cognizance of the said offences vide order dated 19.03.2021. 5. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Prof. R.K. Vijayasarathy & Anr. vs. Sudha Seetharam & Anr. reported in (2019) 16 SCC 739, paragraph no.29 of which reads as under:- “29. In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed.” Cr.M.P. No.2099 of 2021 3 It is submitted by the learned counsel for the petitioners that suppression of filing of the civil suit is without doubt an attempt made by the informant to cloak a civil dispute with a case of criminal nature despite the absence of the ingredients necessary to constitute the criminal offence. 6. Learned counsel for the petitioners next relies upon the judgment of Hon’ble Supreme Court of India in the case of Dalip Kaur & Anr. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696, paragraph no. 10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” and submits that as the dispute between the parties is essentially a civil dispute resulting through alleged breach of contract on the part of the father of the petitioner no.2 and husband of the petitioner no.1 and subsequent to his death with the petitioners. Hence, neither the offences punishable under Section 420 nor the offence punishable under Section 406 of Indian Penal Code is made out. Therefore, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 7. Learned counsel for the State and the learned counsel for the opposite party no.2 on the other hand opposes the prayer to quash the entire criminal proceeding and submits that though the Cr.M.P. No.2099 of 2021 4 agreement was entered into by and between the informant and Ashok Kumar Motilal who is the father of the petitioner no.2 and who is the husband of the petitioner no.1 but the petitioner no.2 having taken Rs. 20,00,000/- cannot be absolved of the liability to pay the same and as the same has been done by way of cheating as is evident from the conduct of the petitioners as in the anticipatory bail application before this Court, the petitioners undertook to deposit Rs.70,00,000/- but still did not deposit the same and never appeared before the trial court rather they filed this criminal miscellaneous petition for quashing the entire criminal proceeding. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials 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 Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph no. 6 of which reads as under :- 6. Xxxx xxxx xxxx
Decision
disposed of the same in some way or dishonestly retained the same. 11. Now coming to the facts of the case, there is no allegation of entrustment of any money against the petitioner no.1. The advance amount has alleged to have been taken by Ashok Kumar Motilal who is no more alive. 12. As already indicated above, the petitioners are not the parties to the agreement. There is no allegation of any dishonest misappropriation of the property. There is no explanation as even though admittedly Ashok Kumar Motilal executed a general power of attorney empowering the son of the informant to execute sale deed in favour of the informant on his behalf, in terms of the said agreement entered into between the parties; why the son of the informant did not execute the sale deed in exercise of such power. 13. Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioners are considered to be true still the offence punishable under Section 406 of Indian Penal Code is not made out. 14. In view of the discussions made above, since neither of the offences of which cognizance has been taken against the petitioners is made out against them, hence, this Court is of the considered view that continuation of the criminal proceeding will amount to abuse of process of law and this is a fit case where the entire criminal proceeding in connection with Sadar P.S. Case No. 236 of 2018, Cr.M.P. No.2099 of 2021 7 corresponding to G.R. No.1147 of 2018 including the order dated 19.03.2021 passed by the learned Chief Judicial Magistrate, Hazaribagh be quashed and set aside. 15. Accordingly, the entire criminal proceeding in connection with Sadar P.S. Case No. 236 of 2018, corresponding to G.R. No.1147 of 2018 including the order dated 19.03.2021 passed by the learned Chief Judicial Magistrate, Hazaribagh is quashed and set aside. 16. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 12th June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2099 of 2021 8