Pramod Bharat Sarawale @ Pramod Bharat Sarwale, aged about 43 years, S/o Bharat Dagadu v. 1. The State of Jharkhand 2. Chandan Kumar S/o Late G.N. Ray, R/o Qr
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2606 of 2023 Pramod Bharat Sarawale @ Pramod Bharat Sarwale, aged about 43 years, S/o Bharat Dagadu Sarawale, resident of Niyar Narsih Mandir, Taluka- Mohol, P.O.- Ankoli, P.S.- Mohol, Dist.- Solapur, State- Maharastra …... Petitioner Versus 1. The State of Jharkhand 2. Chandan Kumar S/o Late G.N. Ray, R/o Qr. No. 3, Mohalla- Bara, Nimdih, Chaibasa, P.O.- Chaibasa, P.S.- Sadar Chaibasa, Dist.- West Sighbhum, State- Jharkhand ..... Opposite Parties For the Petitioner For the State : Mr. Anup Kr. Agarwal, Adv. Mr. Ashutosh Kumar Agrawal, Adv. : Mr. Snehlika Bhagat, Addl.PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. Though notice was validly served upon the opp. party no. 2 but no one turns up on behalf of the opp. Party no. 2 in spite of repeated calls. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing and setting aside the entire criminal proceeding including the order taking cognizance dated 19.02.2022 whereby and where under learned ACJM, West Singhbhum, Chaibasa has taken the cognizance for the offence punishable under Section 406, 417, 420, 34 of IPC , upon charge sheet having been submitted in connection with Chaibasa Sadar P.S. case no. 56 of 2020 qua the petitioner only. 3. The allegation made against the petitioner is that the petitioner along with the co-accused persons suggested the informant- complainant to take loan. The informant-complainant paid Rs. 1 Cr.M.P. No. 2606 of 2023 3,50,000/- in cash to the co-accused Sanjiv Kumar Padhan on the advice and request of the petitioner. The informant-complainant requested for execution of the agreement for sale whereupon, the petitioner asked to deposit amount for registration, so that the registration could be completed in three month. The informant- complainant gave a sum of Rs. 1,05,000/-, 80,000/- , 10,000/-, again Rs. 10,000/- on different dates by several modes and thereafter the informant-complainant requested the petitioner and the co-accused to refund the money or to execute the sale deed but the petitioner neither returned money nor executed the sale deed. The informant-complainant filed compliant case no. 05 of 2020 in the court of learned CJM, Singhbhum West at Chaibasa which was referred to the police under Section 156 (3) of CrPC upon which, Chaibasa Sadar P.S. case no. 56 of 2020 was registered and the police took up the investigation of the case. After completion of the investigation, the police submitted chargesheet for the offence punishable under Sections 406, 417, 420, 34 of IPC and learned Magistrate took the cognizance for the offence punishable under Section 406, 417, 420, 34 of IPC 4. Learned counsel for the petitioner submits that as mentioned in the cognizance order, the informant-complainant in fact submitted a cheque but the same was never presented for payment as the informant-complainant intimated that he does not have money in the concerned bank account. Learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Satishchandra Ratanlal Shah vs. State of Gujarat and Anr. reported in (2019) 9 SCC 148, para 13 of which reads as under:- “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 contract and cheating would depend upon the 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 2 Cr.M.P. No. 2606 of 2023 amount 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.” (Emphasis supplied) submits 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, as it is this mens rea which is the crux of the offence punishable under Section 420 of IPC. 5. Learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corporation vs. NEPC India Ltd. And Ors. reported in (2006) 6 SCC 736, para 14 of which reads as under:- “14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” submits that when a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. 6. It is next submitted by learned counsel for the petitioner that there is no allegation against the petitioner of having any dishonest intention to deceive right at the beginning of the transaction between the parties and in the absence of the same, the offence punishable under Section 420 or 417 of IPC is not made out. It is next submitted that in the absence of any allegation of dishonest misappropriation on the part of the petitioner, the offence punishable under Section 406 of IPC is not made out, hence, even if the entire allegations made in the complaint, materials collected during the investigation of the case, and the 3 Cr.M.P. No. 2606 of 2023 charge sheet are considered to be true in their entirety, still none of the offences for which, the cognizance has been taken by learned Magistrate is made out. It is lastly submitted that the prayer as made in this criminal miscellaneous petition be allowed. 7. Learned Addl. PP on the other hand vehemently opposes the prayer of the petitioner and submits that there is direct and specific allegation against the petitioner that with the intention of the cheating, he has taken money from the informant-complainant and he has induced the informant-complainant to part with huge amount of money but has criminally misappropriated the same, hence, the offence punishable under Section 420, 417 406 of IPC is made out. It is lastly 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 available in the record, it is pertinent to mention here that it is a settled principle of law that breach of a contract does not give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown right at the beginning of the transaction. Mere allegation of failure to keep up the promise will not be enough to initiate criminal prosecution, as has been held by the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. The State of Punjab & Another reported in (2023) 5 SCC 360, para 13 of which reads as under:-
Facts
“13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings 4 Cr.M.P. No. 2606 of 2023 to continue would be an abuse of process of the court.” (Emphasis supplied) 9. To the same effect, is the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336, paragraph No.6 of which reads as under :-
Legal Reasoning
“6. Xxxxx 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)” 10. Now coming to the facts of this case, there is no allegation against the petitioner of having any intention of playing any deception at the very inception hence, under such circumstances, this Court is of the considered view that the even if the allegations made against the petitioner are considered to be true in their entirety still the offence punishable under Section 417 or 420 of IPC is not made out. 11. So far as the offence punishable under Section 406 of IPC is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of 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) 5 Cr.M.P. No. 2606 of 2023 that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants.
Decision
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 accused persons did not pay the money to the complainant does not amount to criminal breach of trust. 12. Now coming to the facts of the case, there is no allegation against the petitioner of dishonest misappropriation of property by the petitioner. Under such circumstances, even if the allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out. 13. In view of the discussions made above, as none of the offences for which the cognizance has been taken by learned Magistrate is made out, even if the allegations made against the petitioner in the FIR, the materials collected during the investigation of the case and the charge sheet, are considered to be true in their entirety, hence, this Court is of the considered view, that this is a fit case where the continuation of criminal proceeding will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding including the order taking cognizance dated 19.02.2022 in connection with Chaibasa Sadar P.S. case no. 56 of 2020 be quashed and set aside qua the petitioner only. 14. Accordingly, entire criminal proceeding including the order taking cognizance dated 19.02.2022 in connection with Chaibasa Sadar P.S. case no. 56 of 2020 be quashed and set aside qua the petitioner only. 15. In the result, this criminal miscellaneous petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 3rd July, 2024 Smita /AFR 6 Cr.M.P. No. 2606 of 2023