Jamuna Saha, aged about 68 years, s/o late Panchu Sah, permanent resident of Village-Bichamahal v. 1. The State of Jharkhand 2. Milan Kumar Dutta, aged about 54 years, s/o
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3946 of 2022 Jamuna Saha, aged about 68 years, s/o late Panchu Sah, permanent resident of Village-Bichamahal, P.O.-Bichamahal, P.S.-Littipara, Dist.- Pakur, Jharkhand at present r/o Village-Koriodih (Near Langta Masan Kenal Road), P.O.-Hiranpur, P.S.-Littipara, Dist.-Pakur, Jharkhand .... Petitioner Versus 1. The State of Jharkhand 2. Milan Kumar Dutta, aged about 54 years, s/o Ajit Dutta, r/o Village-Hiranpur Bazar, P.O.-Hiranpur, P.S.-Hiranpur, Dist.-Pakur, Jharkhand …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. Pankaj Kr. Choudhary, Advocate : Mr. Pankaj Kumar, P.P. : Mr. Yasir Arafat, Advocate ….. By the Court:- I.A. No. 8413 of 2023 1. 2. 3. Heard the parties. This interlocutory application has been filed for early hearing of the case. The hearing of the case is taken up today. Hence, this interlocutory
Decision
application is disposed of being infructuous. (Anil Kumar Choudhary, J.) Cr.M.P. No.3946 of 2022 1 Cr.M.P. No. 3946 of 2022 1. 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 order dated 18.07.2022 passed by the learned A.C.J.M., Pakur in connection with Hiranpur P.S. Case No. 91 of 2021, corresponding to G.R. No. 429 of 2022 by which the learned A.C.J.M., Pakur has taken cognizance for the offence punishable under Section 420 of Indian Penal Code. 2. 3. Learned counsel for the petitioner files the certified copy of the final report submitted by the police in connection with Hiranpur P.S. Case No. 91 of 2021. Keep the same in the record. The allegation against the petitioner is that the informant paid Rs.7,00,000/- to the petitioner for purchasing the land of the petitioner out of the total consideration amount of Rs.21,00,000/- but the petitioner is neither retuning the money nor executing the sale deed. 4. Learned counsel for the petitioner submits that there is no allegation against the petitioner that the petitioner has taken any money nor there is any document to show entrustment of money to the petitioner and the dispute between the parties is basically a civil dispute and a cloak of criminality has been given to a purely civil dispute. It is next submitted by the learned counsel for the petitioner that there is no allegation against the petitioner of having any Cr.M.P. No.3946 of 2022 2 intention to cheat the informant since the beginning and in the absence of the same no offence punishable under Section 420 of Indian Penal Code is made out. 5. Relying upon the judgment of this Court in the case of Sunil Singh @ Sunil Kumar Singh & Ors. vs. The State of Jharkhand & Anr. dated 01.03.2024 in Cr.M.P. No. 2241 of 2021, it is submitted by the learned counsel for the petitioner that therein this Court has relied upon the judgment of 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. 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) and also the judgment of Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. vs. State of West Bengal & Ors. reported in (2022) 7 SCC 124, paragraph no. 38 of which reads as under:- Ranjan “38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this Court in Hridaya of Prasad Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Verma v. State Cr.M.P. No.3946 of 2022 3 Respondent 2 does not disclose dishonest or fraudulent intention of the appellants.” (Emphasis supplied) as well as the judgment of Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. The State of Punjab & Anr. reported in (2023) 5 SCC 360, paragraph no.13 of which reads as under:- “13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest 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.” and also the judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. vs. State of Bihar & Anr. reported in (2014) 10 SCC 663, paragraph no. 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 Cr.M.P. No.3946 of 2022 4 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.” Emphasis supplied) And submits that it is a settled principle of law that breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants but it must also to be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same and the mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust. It is further submitted that in the case of Sunil Singh @ Sunil Kumar Singh & Ors. vs. The State of Jharkhand & Anr. (supra), where the allegation against the accused persons of that case was that in due course of business, the accused persons of that case availed some loan but did not return the amount, this Court quashed the FIR. 6. Hence it is submitted that order dated 18.07.2022 passed by the learned A.C.J.M., Pakur in connection with Hiranpur P.S. Case No. 91 of 2021, corresponding to G.R. No. 429 of 2022 be quashed and set aside. Cr.M.P. No.3946 of 2022 5 7. Learned Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the order dated 18.07.2022 passed by the learned A.C.J.M., Pakur in connection with Hiranpur P.S. Case No. 91 of 2021, corresponding to G.R. No. 429 of 2022 and submits that there is specific allegation against the petitioner of having taken the advance by way of cheating. It is submitted by the learned counsel for the opposite party no.2 that the petitioner was given the privilege of anticipatory bail vide order dated 15.03.2022 in A.B.A. No. 1893 of 2022 upon the undertaking to pay Rs.3,50,000/- to the opposite party no.2 but the petitioner has not yet surrendered before the trial court nor has deposited the same. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that by now it is a settled principle of law that for constituting the offence punishable under Section 420 of Indian Penal Code, the accused must have the intention to deceive the victim since the very inception. If the intention to cheat is developed later on, the same cannot amount to cheating. 9. Now coming to the facts of the case, there is no allegation against the petitioner of having any intention to deceive the informant since the very beginning. There is no document of proof of entrustment of money to the petitioner. 10. Under such circumstances, this Court is of the considered view that even if the allegation made in the FIR, case diary and the charge Cr.M.P. No.3946 of 2022 6 sheet are considered to be true in its entirety, still the offence punishable under Section 420 of Indian Penal Code is not made out. Hence, continuation of the criminal proceeding will amount to abuse of process of law. 11. Accordingly, the order dated 18.07.2022 passed by the learned A.C.J.M., Pakur in connection with Hiranpur P.S. Case No. 91 of 2021, corresponding to G.R. No. 429 of 2022 is quashed and set aside. 12. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 10th April, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. 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