Jubilian Tiru, aged about 46 years, son of Samuel Tiru, resident of village-Monali Heights v. 1. The State of Jharkhand, and 2. Sami Oraon, aged about 48 years, son
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3252 of 2023 ------ Jubilian Tiru, aged about 46 years, son of Samuel Tiru, resident of village-Monali Heights Apartment, Kalyanpur, Jagarnathpur, P.O. + P.S.-Jagarnathpur, District Ranchi. … Petitioner Versus 1. The State of Jharkhand, and 2. Sami Oraon, aged about 48 years, son of late Karu Oraon, resident of Kalyanpur, P.O. + P.S.-Jagarnathpur, District-Ranchi, Jharkhand. … Opposite Parties For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
Ranchi found prima facie case for the offences punishable under Section 323 and 420/34 of Indian Penal Code against the petitioner and ordered for issuance of summons. 5. Learned counsel for the petitioner submits that the allegation against the petitioner is false and frivolous and even if the entire allegations made against the petitioner are considered to be true in their entirety, still no offence is made out against the petitioner. Admittedly the complainant is neither the land owner over which the apartment has been constructed nor he has paid any money for construction of the apartment. Hence, the prayer, as prayed for in the instant Cr.M.P, be allowed. 6. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submit that there is direct and specific allegation against the petitioner that the complainant helped the petitioner and in lieu of such help, by entering into an agreement, the petitioner undertook to ensure allotment of Flat No.4-A in favour of the complainant and in fact the same was allotted also, but after that he has been dispossessed. It is next submitted that the same has been done with an intention to cheat to the 2 Cr. M.P. No.3252 of 2023 complainant and hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a 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 as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-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) 8. It is a settled principle of law that two essential ingredients of the offence punishable under Section 420 of Indian Penal Code are; (a) deceit, that is to say dishonest or fraudulent misrepresentation and (b) inducing the person deceived to part with property as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641. 9. Now, coming to the facts of the case, there is absolutely no allegation against the petitioner that the petitioner made any deceit nor there is any 3 Cr. M.P. No.3252 of 2023 allegation against the petitioner of inducing the complainant deceived by him to part with any property. In the absence of any of these essential ingredients, this Court is of the considered view that even if the allegations against the petitioner are considered to be true in their entirety still the offence punishable under Section 420 of Indian Penal Code is not made out. 10. So far as the offence punishable under Section 323 of the Indian Penal Code is concerned, there is absolutely no allegation against the petitioner of causing any hurt to the complainant or anyone else. 11. Under such circumstances, this court is of the considered view that even if the allegations against the petitioner are considered to be true in their entirety still the offence punishable under Section 323 of Indian Penal Code is not made out. 12. In view of the discussion made above, as neither of the offences punishable under section 420 or punishable under Section 323 of the Indian Penal Code, in respect of which the learned Judicial Magistrate, 1st Class, Ranchi has found prima facie case is made out against the petitioner, even if the entire allegation made against them are considered to be true, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order taking cognizance dated 22.06.2018 passed by learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No.2788 of 2017, be quashed and set aside. 13. Accordingly, the entire criminal proceeding including the order taking cognizance dated 22.06.2018 passed by learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No.2788 of 2017, is quashed and set aside. 4 Cr. M.P. No.3252 of 2023 14.
Arguments
: Mr. Birendra Kumar, Advocate : Mr. Raj Kishore Sahu, Advocate : Mr. P.D. Agrawal, Spl.P.P. : Mr. Soumitra Baroi, Advocate : Mr. Rakesh Kumar No.2, Advocate ------ 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 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding including the order taking cognizance dated 22.06.2018 passed by learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No.2788 of 2017 whereby and where under the learned Judicial Magistrate-1st Class, Ranchi has taken cognizance of the offences punishable under Sections 323 and 420/34 of the Indian Penal Code, against the petitioner. 3. The allegation against the petitioner is that the petitioner promised the complainant to give Flat No.4-A in an apartment in lieu of the help rendered by 1 Cr. M.P. No.3252 of 2023 the complainant to the petitioner, but the petitioner back from his promise, as though the Flat No.4-A was given to the complainant and electric energy bill of the said flat was paid by the complainant; but the complainant was dispossessed of the said flat in January, 2017. 4. On the basis of the complaint, statement on solemn affirmation and statement of the enquiry witnesses, the learned Judicial Magistrate, 1st Class,
Decision
In the result, this Cr.M.P., stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of November, 2024 AFR/ Abhiraj 5 Cr. M.P. No.3252 of 2023