Rajesh Singh @ Baban, Son of Late Gorakh Singh, aged about 45 years, resident v. 1. The State of Jharkhand. 2. Kamal Yadav, son of Sri Nagina Rai, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3431 of 2018 Rajesh Singh @ Baban, Son of Late Gorakh Singh, aged about 45 years, resident of Girls Schools Road, Jugsalai, Jamshedpur, P.O.+P.S. –Jugsalai, District –East Singhbhum. .... Petitioners Versus 1. The State of Jharkhand. 2. Kamal Yadav, son of Sri Nagina Rai, resident of Gol Pahari, Near Jamshedpur, Jamshedpur, P.O.+P.S. –Parsudih, Gurudwara, District –East Singhbhum. …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For the O.P. No.2
Legal Reasoning
: Mr. Anil Kr. Sinha, Advocate : Mr. Achinto Sen, Addl. P.P. : Mr. Jitendra Shankar Singh, Advocate : Mrs. Pinki Kumari, Advocate ….. By the Court:- I.A. No.8068 of 2023 Learned counsel for the petitioners submits that this interlocutory application has been filed with a prayer to delete the name of the petitioner no.1 –Smt. Geeta Devi who died on 31.10.2019 during the pendency of this case. Considering the aforesaid facts, Registry is directed to delete the name of the petitioner no.1 from the cause title of this criminal miscellaneous petition and renumber the petitioner no.2 as the sole petitioner.
Decision
This interlocutory application is disposed of accordingly. (Anil Kumar Choudhary, J.) 1 Cr.M.P. No.3431 of 2018 By the Court:- 1. Heard the parties. 2. 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 as well as order taking cognizance dated 15.05.2018, passed by the learned Judicial Magistrate -1st Class, Jamshedpur in C1 Case No. 1617 of 2016 whereby and where under the learned court below found prima facie case for the offences punishable under Section 420/406/34 of the Indian Penal Code. 3. The allegation against the petitioner is that the father of the petitioner entered into an agreement for sale, to sell the land of the complainant and another person namely Jai Singh Sahu and took an advance of Rs.5,00,000/-. After the death of the father of the petitioner namely Gorakh Singh on 15.08.2014, the petitioner and his mother went to the house of the complainant and the complainant paid Rs.6,00,000/- more to them but they did neither returned the money nor executed the sale deed. At the time of recording of his statement under solemn affirmation, the complainant did not file the proof in court about entrustment of Rs.6,00,000/- to the petitioner and his mother but deposed that he is having evidence of the same and he can file the same in the court. 2 Cr.M.P. No.3431 of 2018 4. On the basis of the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses, the learned Judicial Magistrate -1st Class, Jamshedpur found prima facie case has already indicated above. 5. It is submitted by the learned counsel for the petitioner that allegation against the petitioner is false. The dispute is purely a civil dispute as in his statement under solemn affirmation itself, the complainant himself has categorically stated that he is ready to compromise on receiving the money. It is next submitted that in the absence of any allegation of the petitioner playing any deception since the beginning of the transaction between the parties, the offence punishable under Section 420 of the Indian Penal Code is not made out and in the absence of any allegation of dishonest misappropriation against the petitioner, the offence punishable under Section 406 of the Indian Penal Code is also not made out. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 6. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand oppose the prayer as made by this petitioner in this criminal miscellaneous petition and submits that the allegations made against the petitioner are sufficient to constitute the offence punishable under Section 406/420 of the Indian Penal Code. Therefore, it is submitted 3 Cr.M.P. No.3431 of 2018 that there is no justification for quashing the entire criminal proceeding at this nascent stage. 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 it is a settled principle of law 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 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) 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 will not amount to cheating. 4 Cr.M.P. No.3431 of 2018 8. Now coming to the facts of the case, there is absolutely no allegation against the petitioner of playing any deception since the beginning of the transaction between the parties. In fact the original agreement was entered between the complainant and the father of the petitioner and the complainant by the time of his being examined on solemn affirmation, did not file any documentary proof of entrustment of money to the petitioner. Under such circumstances, this Court is of the considered view that even if the allegation against the petitioner are considered to be true, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner. 9. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law as has been observed 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 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 in misappropriating intention 5 Cr.M.P. No.3431 of 2018 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 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 but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 10. Now coming to the facts of the case, there is absolutely no allegation against the petitioner of dishonest misappropriation of any property. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. Hence, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding as well as order taking cognizance dated 15.05.2018, passed by the learned Judicial Magistrate -1st Class, Jamshedpur in C1 Case No. 1617 of 2016 whereby and where under the learned court below found prima facie case for the offences punishable under Section 420/406/34 of the Indian Penal Code, be quashed and set aside qua the petitioner only. 6 Cr.M.P. No.3431 of 2018 11. Accordingly, the entire criminal proceeding as well as order taking cognizance dated 15.05.2018, passed by the learned Judicial Magistrate -1st Class, Jamshedpur in C1 Case No. 1617 of 2016 whereby and where under the learned court below found prima facie case for the offences punishable under Section 420/406/34 of the Indian Penal Code, is quashed and set aside qua the petitioner only. 12. This criminal miscellaneous petition is disposed of accordingly. High Court of Jharkhand, Ranchi Dated the 3rd September, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 7 Cr.M.P. No.3431 of 2018