The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3081 of 2024 1. Ranjit Kumar Bhagat @ Ranjit Bhagat, aged about 43 years, son of Shivnath Bhagat 2. Kanchan Kumari, aged about 39 years, wife of Ranjit Kumar Bhagat Both residents of village- Mahuwara, P.O. & P.S.- Mahagama, Dist.- Godda, Jharkhand Versus ...... Petitioners The State of Jharkhand ….. Opposite Party For the Petitioners For the State : Mr. Md. Zaid Ahmed, Adv. : Ms. Shweta Singh , Addl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of BNSS, 2023 with a prayer for quashing the entire criminal proceeding including the order dated 30.01.2023 passed in G.R. case no. 200 of 2023 arising out of Mahagama P.S. case no. 190 of 2022, by which, learned JMFC, Godda, has taken cognizance of the offences punishable under Section 406, 420, 504, 506 and 34 of the IPC and section 138 of the N.I.Act, consequent upon the charge sheet having been filed against the petitioners for having committed the said offences. 3. Learned counsel for the petitioners submits that in their case, charge has not yet been framed nor any witness has been examined so far. 4. The allegation against the petitioners is that the petitioner no. 2, being the proprietor of M/s Shivam Construction and the petitioner no. 1 being her husband, purchased two trucks loads of 1 Cr.M.P. No. 3081 of 2024
Facts
TMT bar in on different dates, worth Rs. 12,36,300/- for the first truck load and Rs. 12,83,900.18 for the second truck load and after demand, the petitioner no. 1 deposited Rs. 3,00,000/- in the bank account of M/s Shyam Steel and paid Rs. 2,50,500/- in cash to the representative employees of M/s Shyam Steel, which supplied the said TMT bar but did not pay the rest amount of Rs. 19,69,700.18/- . There is also allegation that the petitioners issued a cheque before supply of the TMT bar to the petitioners. Police took up the investigation of the case and after completion of the investigation, police submitted charge sheet against the petitioners, for having committed the offences for which, the cognizance has been taken by the learned Magistrate. 5. It is submitted by the learned counsel for the petitioner relying
Legal Reasoning
upon the judgment of this court in the case of Shamim Ahmad vs. State of Jharkhand & Anr. reported in 2024 SCC OnLine Jhar 3756, wherein this court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696, para -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 nonrefunding 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] )” (Emphasis supplied) wherein the Hon’ble Supreme Court of India has observed that if the dispute between the parties was essentially a civil dispute, resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute the offence of cheating and in that case, this court, also relied upon the judgment Hon’ble Supreme Court of India in the case of Vir Prakash Sharma Vs. Anil Kumar 2 Cr.M.P. No. 3081 of 2024 Agarwal & Anr., reported in (2007) 7 SCC 373 wherein the Hon’ble Supreme Court of India has observed that when the dispute between the parties is essentially a civil dispute, non- payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 6. It is next submitted that in that case, this court also relied upon the judgment 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) 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 the breach of contract would amount to cheating; where there was any deception played at the very inception and if the intention to cheat has developed later on, the same cannot amount to cheating. 7. It is next submitted that this court in that case, also relied upon the judgment of 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 :-
Decision
“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 3 Cr.M.P. No. 3081 of 2024 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 the property 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. 8. In this respect, learned counsel for the petitioners, also relies upon the judgment of this court in the case of Dhananjay Mishra & Ors. vs. State of Jharkhand & Anr. reported in 2024 SCC OnLine Jhar 3596 as also the case of Deepak Fasteners Limited vs. State of Jharkhand & Anr. reported in 2024 SCC OnLine Jhar 2783. 9. It is next submitted by learned counsel for the petitioners that in the absence of the allegation of the cheque presented by the petitioners being dishonored and any demand of cheque amount being made, and in the absence of any complaint filed by the person in whose favour, the cheque was issues, certainly, learned JMFC committed grave error by taking cognizance of the offence punishable under Sections 138 of the N.I. Act. It is then submitted that, in absence of any allegation of any intentional insult with intent to provoke the breach of peace or any allegation of criminal intimidation, made against the petitioner, learned Magistrate, has committed a grave error in taking cognizance of the offences punishable under Sections 504 and 506 of the IPC. It is lastly submitted that the prayers as prayed for in this criminal miscellaneous petition be allowed. 10. Learned Addl. P.P. on the other hand, vehemently opposes the prayer of the petitioners and submits that there is allegation against the petitioners of threatening the informant to kill him and of abusing him, hence the same amounts to the offence punishable under Sections 504/ 506 of IPC and there is allegation against the petitioners of being in furtherance of their common intention, 4 Cr.M.P. No. 3081 of 2024 committing the offence of cheating as well as criminal breach of trust, 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 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 Uma Shankar Gopalika vs. State of Bihar & Anr. (supra) that in order to constitute the offence punishable under Section 420 of IPC, it must be alleged that the accused played deception at the very inception of the transactions between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating. 12. Now coming to the facts of the case, there is absolutely no allegation against the petitioners that the petitioners played any deception at the very inception rather it is the admitted case of the informant itself, that the petitioners had paid Rs. 5,50,500/- out of the amount due and payable by them. So, under such circumstance, this court is of the considered view that even if the entire allegation made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out. 13. 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 Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr., (supra) that when the dispute between the parties is essentially a civil dispute, non- payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 14. Now undisputedly, the case between the parties is essentially a civil dispute regarding under payment of amount of goods supplied by M/s Shyam Steel. Under such circumstances, in the absence of any allegation of any dishonest misappropriation of 5 Cr.M.P. No. 3081 of 2024 entrusted property by the petitioners, this court is of the considered view that even if the entire allegation made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out. 15. So far as the offence punishable under Section 504 and 506 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 Vikram Johar vs. State of Uttar Pradesh & Anr. reported in (2019) 14 SCC 207, paragraph nos. 24 and 25 of which reads as under:- “24. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that the appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that the appellant came and abused the complainant does not satisfy the ingredients as laid down in para 13 of the judgment of this Court in Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] 25. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edn. with regard to proof of offence states the following: “… The prosecution must prove: That the accused threatened some person. (i) That such threat consisted of some injury to his (ii) person, reputation or property; or to the person, reputation or property of someone in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.” (emphasis supplied) A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.” that mere allegation that the accused persons came and abused the complainant does not by itself satisfy the ingredients 6 Cr.M.P. No. 3081 of 2024 of Section 504 of the IPC and in order to constitute the offence punishable under Section 504 of IPC, the intentional insult must be of such a degree that should provoke the person to break the public peace or to commit any other offence. 16. Now coming to the facts of the case, there is no allegation against the petitioners that the intentional insult, if any, was of such a degree that should provoke a person to break public peace or commit any other offence, and in the absence of the essential ingredient, this court is of the considered view that even if the allegation made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 504 of IPC is not made out. 17. So far as the offence punishable under Section 506 of IPC is concerned, there is no allegation against the petitioner that the petitioners threatened the informant with an intent to cause alarm to the informant or to cause the informant to do any act, which he was not legally bound to do or omit to do any act, which was legally entitled to do, as means of avoiding the execution of such threat. Hence, in the absence of this essential ingredient to constitute the offence punishable under Section 506 of IPC, this court considering the facts and circumstances of the case, is of the considered view that even if the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 506 of IPC is not made out. 18. So far as the offence punishable under Section 138 of the N.I.Act is concerned, it is a settled principle of law that the essential ingredient to constitute the offence punishable under Section 138 of N.I.Act, is that the cheque issued by the accused person, must have been dishonoured and the accused person, must have failed to pay the cheque amount upon a demand made by the drawee of the cheque and the cognizance of such offence can only be taken on a complaint being filed by the drawee of the cheque. 19. Now coming to the facts of the case, there is neither any allegation of the cheque being dishonored, nor it has been mentioned that 7 Cr.M.P. No. 3081 of 2024 who was the drawee of the cheque. Further, there is no allegation that the drawee of the cheque ever made any demand of the cheque amount to the petitioner, nor even the amount for which the cheque was drawn, has been mentioned. Under such circumstances, in the absence of any complaint and in the absence of allegation of the essential ingredients to constitute the offence punishable under Section 138 of the N.I.Act, this court is of the considered view that that even if the allegation made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 138 of the N.I.Act is not made out, against the petitioners. 20. Therefore, in view of the discussion made above, since none of the offences, for which, the learned Magistrate taken cognizance against the petitioners is made out, hence in the considered opinion of this Court, continuation of criminal proceeding against the petitioners, will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding including the order dated 30.01.2023 passed in G.R. case no. 200 of 2023 arising out of Mahagama P.S. case no. 190 of 2022 be quashed and set aside. 21. Accordingly, the entire criminal proceeding including order dated 30.01.2023 passed in G.R. case no. 200 of 2023 arising out of Mahagama P.S. case no. 190 of 2022, is quashed and set aside. 22. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated, the 18th November, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 8 Cr.M.P. No. 3081 of 2024