Opp. Party v. P R E S E N T HON
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2845 of 2024 Md. Hasnain @ Md. Husnain @ Captain, aged about 27 years, S/o Md. Moin, presently R/o Village –Tantri, Jaina, P.O. –Tantri, P.S. –Balidih, District –Bokaro, Jharkhand -829301, Earlier R/o Q. No. B33/170, Sarna Sthal Rajrappa Project, P.S. –Rajrappa, District –Ramgarh, Jharkhand. .... Petitioner The State of Jharkhand …. Opp. Party Versus P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State
Legal Reasoning
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 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. 7. It is next submitted by the learned counsel for the petitioner that there is absolutely no allegation that the petitioner had any dishonest intention since the beginning of the transaction between the parties and in fact the petitioner has paid part of the amount by way of a cheque, of course the same was dishonoured, but for the same, only a complaint case could have been filed in view of section 142 of the Negotiable Instrument Act, 1881 but a police 3 Cr.M.P. No.2845 of 2024 case cannot be filed, for dishonour of a cheque and the consequent non-payment of the cheque amount; even after demand. 8. It is next submitted by the learned counsel for the petitioner that this Court in the said case also relied upon the Judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. 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) Wherein the Hon’ble Supreme Court of India reiterated the settled principle of law that to make out a case of criminal breach of trust, it is not sufficient to show that property has been retained by the accused persons but must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 9. It is next submitted by the learned counsel for the petitioner that in the absence of any allegation that the petitioner has dishonestly 4 Cr.M.P. No.2845 of 2024 retained the money or dishonestly disposed of the same, in any manner, the offence punishable under Section 406 of the Indian Penal Code is not made out. It is next submitted that the dispute between the parties is purely a civil dispute and a cloak of criminal case has been to it by the informant for the purpose of wreaking vengeance. Therefore, it is submitted that the continuation of this criminal proceeding will amount to abuse of process of law. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed. 10. The learned Addl. P.P. on the other hand vehemently opposes the prayer as prayed for by the petitioner in this criminal miscellaneous petition and submits that there is direct and specific allegation against the petitioner of committing cheating and criminal breach of trust by taking the JCB Machine with the promise of paying rent for the same but not paying the same. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials available in the record, so far as the offence punishable under Section 420 of the Indian Penal Code is concerned, it is a settled principle of law that to constitute the said offence, there has to be deception since the beginning of the transaction between the parties. 5 Cr.M.P. No.2845 of 2024 12. Now coming to the facts of the case, there is no allegation of any deception being played by the petitioner since the beginning of the transaction between the parties. In the absence of the same, this Court has no hesitation in holding that the offence punishable under Section 420 of the Indian Penal Code is not made out. 13. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, there is absolutely no allegation that the petitioner dishonestly retained the property or dishonestly
Arguments
: Mr. Baibhaw Gahlaut, Advocate : Mr. Subhneet Jha, Advocate : Mr. Manoj Kr. Mishra, Addl. P.P. ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash and set aside the F.I.R. including the entire criminal proceeding of Rajrappa P.S. Case No. 118 of 2022 registered for the offences punishable under Section 406/420/34 of the Indian Penal Code and under Section 138 of the Negotiable Instrument Act and also for quashing the order dated 13.05.2024, passed in Criminal Revision No. 18 of 2024 by the learned Sessions Judge, Ramgarh, as also the order dated 06.12.2022 and 18.01.2024, passed by the learned SDJM, Ramgarh in Rajrappa P.S. Case No. 118 of 2022. 1 Cr.M.P. No.2845 of 2024 3. The learned counsel for the petitioner at the outset does not press the prayer so far as the order dated 13.05.2024, passed in Criminal Revision No. 18 of 2024 by the learned Sessions Judge, Ramgarh, order dated 06.12.2022 and 18.01.2024, passed in Rajrappa P.S. Case No. 118 of 2022 by the learned SDJM, Ramgarh. Hence the prayer for quashing the said orders are rejected as not pressed. 4. The brief facts of the case is that the allegation against the petitioner is that the petitioner hired the JCB Machine of the informant on a monthly rent of Rs.70,000/- after entering into an agreement and subsequently took Rs.3,40,000/- on hand loan for the purpose of marriage of his sister but he is neither returning the money nor the JCB Machine. 5. The learned counsel for the petitioner, relying upon the Judgment of Hon’ble Supreme Court of India in the case of Neetu Singh & Ors. Vs. State of U.P., reported in 2022 Live Law (SC) 281 submits that therein the Hon’ble Supreme Court of India has observed that failure to pay rent may have civil consequences, but is not an offence under the Indian Penal Code and submits that non-payment of the rent for the JCB Machine at best can give rise to civil dispute but certainly the same cannot give rise to any offence under the Indian Penal Code. 6. Relying upon the Judgment of this Court in the case of Satyabhama Dubey @ Satyabhama Devi and Ors. Vs. The State of Jharkhand and Ors., reported in 2024 0 Supreme (Jhk.) 171, it 2 Cr.M.P. No.2845 of 2024 is submitted by the learned counsel for the petitioner that in that case, this Court relied upon the Judgment of 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, the relevant paragraph no. 6 of which reads as under :-
Decision
disposed of the same in some way. In the absence of the same, the offence punishable under Section 406 of the Indian Penal Code is not made out; even if the entire allegations made against the petitioners are considered to be true. 14. So far as the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 is concerned, certainly a police case is not sustainable and for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 a complaint is to be filed before the concerned Magistrate if the amount is not paid even after service of notice of demand as is envisaged in section 142 of the Negotiable Instrument Act, 1881. 15. This Court is of the considered view that the dispute between the parties is basically a civil dispute and a cloak of criminal case has been given only for the purpose of wreaking vengeance and as already mentioned above, even if the entire allegation made against the petitioner are considered to be true, neither the offence punishable under Section 420 nor the offence punishable under 6 Cr.M.P. No.2845 of 2024 Section 506 of the Indian Penal Code is made out. Therefore, continuation of this criminal proceeding will amount to abuse of process of law. Hence, this is a fit case where the F.I.R. including the entire criminal proceeding of Rajrappa P.S. Case No. 118 of 2022 registered for the offences punishable under Section 406/420/34 of the Indian Penal Code and under Section 138 of the Negotiable Instrument Act be quashed and set aside qua the petitioner only. 16. Accordingly, the F.I.R. including the entire criminal proceeding of Rajrappa P.S. Case No. 118 of 2022 registered for the offences punishable under Section 406/420/34 of the Indian Penal Code and under Section 138 of the Negotiable Instrument Act being not sustainable in law is quashed and set aside qua the petitioner only. 17. This criminal miscellaneous petition is allowed to the aforesaid extent only. High Court of Jharkhand, Ranchi Dated the 30th September, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 7 Cr.M.P. No.2845 of 2024