Pawan Kumar Sharma, son of Bishwanath Sharma, aged about 60 years, resident of H v. 1. The State of Jharkhand 2. Ashutosh Verma, son of Sri S.P.Verma, resident of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2679 of 2021 Pawan Kumar Sharma, son of Bishwanath Sharma, aged about 60 years, resident of H. No. 41, Pocket 11-A, Second Floor Panchsheel Enclave, Sector 23, Rohini, P.O. & P.S.- Rohini, Dist.- New Delhi Petitioner ...... Versus 1. The State of Jharkhand 2. Ashutosh Verma, son of Sri S.P.Verma, resident of 123, Co- operative colony, Bokaro Steel City, P.O. & P.S.- Bokaro Steel City, Dist.- Bokaro ….. Opposite Parties For the Petitioner : Mr. Surya Prakash, Adv. For the State For the O.P. No. 2 : Mr. Rajesh Kumar, Adv. Mr. Suraj Kishore Prasad, Adv. : Mr. Vineet Kr. Vashistha, Spl. PP Mr. Manindra Kumar Sinha, Adv. Mr. Amit Kumar, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Facts
Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of CrPC with a prayer for quashing and setting aside the order dated 15.02.2023 passed by learned JMFC by which learned JMFC, has taken cognizance for the offences punishable under Sections 406, 420, 506 of the IPC in connection with Bokaro Steel City P.S. case no. 321 of 2018, pending in the court of learned JMFC, Bokaro. 3. The allegation against the petitioner is that the petitioner made the informant met with the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada, the owner of Pen Films and on being convinced, the informant paid Rs. 10,00,000/- as advance to start a movie with 50% shareholding of the informant. An agreement was signed and thereafter, the informant was forced to pay Rs. 2.25 1 Cr.M.P. No. 2679 of 2021 crores by June 2013 towards the expenses of shooting as 50% shooting was complete in February, 2013. In spite of being asked by the informant, the terms of reconciliation was not done, no details was provided to the informant rather Rs. 1.15 Crore more was extracted from the informant towards the completion of the movie. In April 2014, another agreement was signed between the informant having 45% shareholding. In April 2014, an agreement was signed between the Spyderwave Films with which the informant is associated having 45% shareholding, PUN Films with which the petitioner is associated having 45% shareholding and the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada who is associated with Pen Films having 10% share and after that also the informant paid Rs. 30,00,000/- to get the subsidy from Uttar Pradesh Government then only, the informant was told that the movie was made only by spending Rs. 2.50 Crores. Thus, alleging that the petitioner and the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada has defalcated the invested money by the informant, as no profit from the distribution rights were provided to the informant, the informant lodged written report with the Bokaro Steel City Police Station, basing upon which, Bokaro Steel City P.S. case no. 321 of 2018 was registered and the police took up investigation of the case. After completion of the investigation, the police submitted charge sheet against the petitioner inter alia for having committed the offences punishable under Sections 406, 420, 506, 34 of the IPC and consequent upon that, learned Magistrate has taken the cognizance for the said offences. 4. Learned counsel for the petitioner by drawing attention of the court to the order dated 22.02.2021 passed by a co-ordinate Bench of this Court in respect of the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada in Cr.MP. no. 4117 of 2019, submits that by the said order, the Co-ordinate Bench has quashed and set aside and First Information Report of Bokaro Steel City P.S. case no. 321 of 2018 , so far as it relates to the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada. It is next submitted that the case of the 2 Cr.M.P. No. 2679 of 2021 petitioner stands on similar footing as that of the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada. 5. Learned counsel for the petitioner relying upon the judgment of
Legal Reasoning
this court in the case of Kaldip Singh @ Kuldeep Singh @ Kuldip Singh vs. The State of Jharkhand & Anr. dated 05.07.2024 passed in CrMP no. 1373 of 2023 submits that therein, this court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Sachin Garg vs. State of U.P. and Anr. reported in 2024 SCC OnLine SC 82, para 17 of which reads as under:- 17. In the case of Binod Kumar v. State of Bihar [(2014) 10 SCC 663], a coordinate Bench of this Court dealt with a criminal complaint arising out of retention of bill amount in course of commercial transaction. The Court found essential ingredients of criminal breach of trust or dishonest intention of inducement, which formed the foundation of the complaint were missing. The High Court's judgment rejecting the plea for quashing the criminal proceeding was set aside by this Court. The reasoning for quashing the criminal proceeding would be revealed from paragraphs 18 and 19 of the Report, which reads:— “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. 19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed.” (Emphasis supplied) and submits that even if the entire allegations are considered to be true in their entirety, still the offence punishable under Section 406, 420 of IPC is not made out. It is next submitted that in that case, this court also relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. 3 Cr.M.P. No. 2679 of 2021 State of Bihar & Another reported in (2005) 10 SCC 336, paragraph No.6 of which reads as under :- “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)” 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, hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 6. Learned Spl. P.P. and learned counsel for the opp. party no. 2, the other hand, vehemently oppose the prayer of the petitioner and submit that in the chargesheet, it has been mentioned that there was lack of evidence against the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada, in view of the order passed by the co-ordinate Bench in the said CrMP no. 4117 of 2019 but after investigation, ample evidence was collected to sustain the allegation against the petitioner for having committed the offences punishable under Section 406, 420 of IPC, 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 available in the record, it is pertinent to mention here that this Court finds that the allegation against the petitioner stands on the same footing as that of the co-accused Dr. Jayantilal V.Gada @ Jayantlal Gada, in respect of whom, the entire criminal proceeding, in connection with Bokaro Steel City P.S. case no. 321 of 2018, has been quashed by the co-ordinate Bench of this Court and the said order having not been challenged, has attained finality. The sum and substance of the allegation as is 4 Cr.M.P. No. 2679 of 2021 made out against the petitioner is that due share and profit arising out of the business transaction, has not been paid to the informant , in terms of the agreement in this respect entered into between the parties and there is no allegation against the petitioner that the petitioner had the intention to cheat from very inception of the transaction between the parties, so in the absence of the same, even if the allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 8. So far as the offence punishable under Section 406 of IPC is concerned, in view of the judgment passed by the Hon’ble Supreme court of India in the case of Binod Kumar and others v. State of Bihar and another reported in (2014) 10 SCC 663 which has been referred to in the case of Sachin Garg vs. State of U.P. and Anr. (supra), there is no allegation against the petitioner of committing any dishonest mis-appropriation of any property entrusted to him. In fact, there is no allegation of any entrustment of any property to the petitioner personally. It is apparent that the allegation against the petitioner at best amounts to retention of an amount in course of commercial transaction which do not itself constitute the essential ingredients of criminal breach of trust or dishonest intention of inducement, hence, in the considered opinion of this court, even if the entire allegations made against the petitioner in this case are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out. 9. So far as the offence punishable under Section 506 of IPC is concerned, this Court finds that the same is ornamental in nature and there is no allegation against the petitioner that the threatening given by the petitioner was done with intent to cause alarm to the victim of the offence or threatening was given to cause the victim to perform any act, which he was not legally bound to do. 5 Cr.M.P. No. 2679 of 2021 10. Under such circumstances, this Court is of the considered view that the even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 506 of IPC is not made out. 11. In view of the discussions made above, this Court is of the considered view that continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case, where the order dated 15.02.2023 passed by learned JMFC, Bokaro in connection with Bokaro Steel City P.S. case no. 321 of 2018 be quashed and set aside qua the petitioner . 12. Accordingly, the order dated 15.02.2023 passed by learned JMFC,Bokaro in connection with Bokaro Steel City P.S. case no. 321 of 2018 is quashed and set aside qua the petitioner.
Decision
13. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 25th November, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 6 Cr.M.P. No. 2679 of 2021