1.Shafiqur Rahman 2.Dilip Jha @ Dilip Kumar Jha 3.Himanshu Arwind 4.Mrs. Premlata Devi 5.Abdul v. State of Jharkhand and Another
Case Details
1 IN THE HIGH COURT OF JHARKHAND, RANCHI Cr.M.P. No. 3393 of 2019 ---- 1.Shafiqur Rahman 2.Dilip Jha @ Dilip Kumar Jha 3.Himanshu Arwind 4.Mrs. Premlata Devi 5.Abdul Rahman Ansari .... Petitioners -- Versus -- State of Jharkhand and Another .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For Respondent State For the O.P.No.2 :- :- :- 9/23rd February, 2024
Legal Reasoning
is concerned that is not in dispute. It is well settled that in breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction as also been held in paragraph no.13 of the said judgment relied by the learned counsel for the petitioners in the case of Sarabjit Kaur v. State of Punjab and Another(supra). 10. In the case in hand, the ousting of the O.P.No.2 without any valid dissolution agreement and forming another partnership firm clearly suggest that intention to cheat from the very beginning was there and in view of this, that judgment in the case of Sarabjit Kaur v. State of Punjab and Another(supra) is not helping the petitioners, and thus, refund of the amount further suggest that it was afterthought after initiation of the criminal proceeding and once the business was established the O.P.No.2 was ousted and thereafter earning the amount the said amount has been returned and in view of that further the intention is still there of cheating from the very beginning. 11. 12. 13. Accordingly, this petition is dismissed. Interim order is vacated.
Arguments
--- Mr. Arwind Kumar, Advocate Mrs.Vandana Bharti, Advocate Mr. Vibhor Mayank, Advocate ---- Heard Learned counsel for the petitioners, learned counsel for the respondent State as well as learned counsel for the O.P.No.2. 2. In this petition, prayer is made for quashing of the entire criminal proceeding including order taking cognizance dated 05.05.2018 arising out of Complaint Case No.2486 of 2017, pending in the court of learned Judicial Magistrate, First Class, Jamshedpur. 3. The complaint case has been filed alleging therein that in October, 2013 accused no.3 and accused no.1 with accused no.2 were holding power of attorney dt. 23.8.2013 of land situated at mouza Baliguma who offered him to became partner with them for purchase of the said piece of land. It is alleged that complainant along with accused nos.3, 4 and 5 have entered for agreement of sale (as purchaser) with accused no.1 and 2 who were holding power of attorney of the said land and a token amount of Rs.5,00,000/- paid to accused no.1 jointly on behalf of the all purchaser and later on said purchaser prepared partnership deed which was executed on 26.2.2014. It is further alleged that accused nos.1 and 2 in connivance with rest of accused created partnership firm in name of accused nos.1 and 2 and said land which was subject of agreement was transferred to said partnership firm by accused nos.1 and 2 to their own firm. Upon that complainant contacted the accused persons who had refused to negotiate the matter and further threatened not to talk again on this issue. 2 4. Learned counsel for the petitioners submits that for recovery of the amount arising out of partnership deed, the complaint case has been filed which is civil in nature and in view of that, the entire criminal proceeding may kindly be quashed. He further submits that Rs.10 lacs has been returned back by the petitioner and he submits that no case is made out. He relied in the case of Sarabjit Kaur v. State of Punjab and Another, (2023) 5 SCC 360, and referred to paragraph no.13 of the said judgment, which is quoted below: 13. A breach of contract does not give rise to criminal fraudulent or dishonest for cheating unless prosecution 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 to continue would be an abuse of process of the court.” 5. Learned counsel for the O.P.No.2 opposed the prayer on the ground that intention to cheat from the very beginning was there. The O.P.No.2 invested Rs.10 lacs and in absence of any revocation deed he has been ousted and they have formed another partnership deed with another partners and in view of that the case is made out. 3 6. In paragraph no.8 of the complaint petition it has been disclosed that petitioners have entered into written partnership with Himanshu Arwind, Mrs. Premlata Devi and Abdul Rahman Ansari which was executed and registered on 26.02.2014 by deed no.1180/297 and further it is disclosed in paragraph no.9 that in order to cheat and defraud the complainant, other accused in connivance with each other had created a partnership firm namely D.S. Enterprises in their name and they themselves became seller by virtue of general power of attorney and purchaser by virtue of partnership deed. 7. In view of above it is crystal clear that the registered deed was there which was required to be revoked by way of another written deed of revocation and no document to that effect has been brought on record and in absence of that the complainant has been ousted without following the procedure and by forming another partnership deed, it is clear that from the very beginning the intention to cheat was there and in view of that under section 415 of IPC the case against the petitioners are made out. There is no doubt that if civil proceeding is there, the High Court is well within its jurisdiction to quash the entire criminal proceeding, however, if criminality is made out and the case is also of civil in nature, both proceeding can go on simultaneously as held by the Hon’ble Supreme Court in the case of Preeti Sharaf v. State (N.C.T of Delhi) and Another, (2021) 16 SCC 142, paragraph no.31 of the said judgment is quoted below: “31. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for 4 exercising inherent powers of the High Court under Section 482CrPC for quashing such proceedings. 8. Further exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before imparting to scrutiny the complaint, FIR or charge sheet in deciding whether the case is rarest of rare case to settle the prosecution at its inception or not. In the case in hand the allegation in the complaint clearly makes out the case of cheating with intention from the very beginning. 9. So far judgment relied by the learned counsel for the petitioners
Decision
Pending petition if any also stands disposed of accordingly. /SI ( Sanjay Kumar Dwivedi, J.)