Sandeep Bhargava, aged about 50 years, S/o Desh Bandhu Bhargava, resident of 89 Shanti v. 1. The State of Jharkhand 2. Jaideep Singh, General Manager, Kashish Developers Ltd. 87
Case Details
1 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3245 of 2021 Sandeep Bhargava, aged about 50 years, S/o Desh Bandhu Bhargava, resident of 89 Shanti Vihar, 1st Floor, Karkarduma., East Delhi, P.O.- Karkarduma, P.S.- Anand Vihar, Dist.- East Delhi ...... Petitioner Versus 1. The State of Jharkhand 2. Jaideep Singh, General Manager, Kashish Developers Ltd. 87, Old AG Colony, Kadru, P.O. & P.S.- Doranda, District- Ranchi ….. Opposite Parties With Cr.M.P. No. 1084 of 2022 Pankaj Gupta, aged about 58 years, S/o Ram Krishna gupta, resident of E- 7/4, Land 1, Radha Kunj, Jaypee Greens, Greater Noida, Surajpur, P.O.- Alfa 1 Greater Noida, P.S.- Kasna, District- Gautam Buddha Nagar (Uttar Pradesh) Versus ...... Petitioner 1. The State of Jharkhand 2. Jaideep Singh, General Manager, Kashish Developers Ltd. 87, Old AG Colony, Kadru, P.O. & P.S.- Doranda, District- Ranchi ….. Opposite Parties For the Petitioners For the State For the O.P. No. 2
Legal Reasoning
: Mr. Indrajit Sinha , Adv. Mr. Rishi Pallav, Adv. Mr. Sagar Kumar, Adv. : Ms. Amrita Kumari, Addl. PP : Mr. Ajit Kumar, Sr. Adv. Mr. Sameer Ranjan, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Both these criminal miscellaneous petitions have been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C., inter alia with the prayer for quashing the entire criminal proceeding including the order taking cognizance dated 2 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 17.12.2022 for the offence punishable under Section 406/34 and 420/ 34 of IPC in connection with Doranda (Argora) P.S. Case no. 218 of 2011 corresponding to G.R. No. 2851 of 2011, hence, both
Decision
these criminal miscellaneous petitioners are being disposed of by this common judgment. 3. The allegation against the petitioners is that the petitioner of CrMP No. 1084 of 2022 being the Managing Director and the petitioner of Cr.MP No. 3245 of 2021 being the Sales Director of M/s Digital Broadcast India Pvt. Ltd, (DBIPL) approached the informant being the General Manager of M/s Kashish Developers Limited, Kadru, Ranchi, which also runs a news channel, for supply of the various devices, worth Rs. 2,46,00,000/- and the informant agreed to purchase the same. The informant paid Rs. 1,46,00,000/- to the DBIPL for supply of articles worth Rs. 1,10,11,339/-, out of which, devices worth Rs. 8,62,002/- , were found to be not fit for use but the petitioners, did not supply devices worth Rs. 35,88,711/- . On the informant, approaching the petitioners, they assured to supply the remaining devices, within ten days, and to replace the devices which were not fit for use but did not do so, hence, the FIR of this case was lodged, and after completion of the investigation, the police submitted charge sheet against these two petitioners. 4. Learned counsel for the petitioners submits that the dispute between the parties is at best a civil dispute arising out of commercial transaction and the cloak of criminal colour has been given to the civil dispute. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. state of Bihar reported in (2005) 10 SCC 336, para 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) 3 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 as well as the judgment of the Hon’ble Supreme Court of India in the case of Mariam Fasihuddin & Another vs. State of Adugodi Police Station and Another reported in 2024 SCC Online SC 58, para 24 of which reads as under:- “24. It is well known that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420 IPC. It must also be understood that a statement of fact is deemed ‘deceitful’ when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss.2 ‘Cheating’ therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.” It is submitted by the learned counsel for the petitioners that every breach of trust will 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 and if the intention to cheat, has developed later on, the same will not amount to cheating. 5. Relying upon the judgment of this Court of India in the case of Sanjay Kumar Srivastava and Ors. vs. The State of Jharkhand reported in MANU / JH/ 0852/ 2023, wherein, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. vs. State of West Bengal reported in (2022) 7 SCC 124, it is submitted by the learned counsel for the petitioners that it is a settled principle of law, that alleged breach of contractual terms, does not ipso facto, constitute the offence of criminal breach of trust, without there being a clear case of entrustment. It is next submitted by learned counsel for the petitioners that the allegation against the petitioners is false and the petitioners having supplied the materials, admittedly, as part of commercial transaction, between the parties, no offence either punishable under Section 420 of IPC or 406 of IPC is made out. It is further submitted that the opp. party no. 2 has failed to get the goods released from the custom and to do other formalities. It is next submitted that the company has supplied and delivered the items worth Rs. 1,77,57,123/- to the opp. party no. 2 and even if the allegations made in the FIR are treated to be true in its entirety, still the offence punishable under Section 420/34 of IPC 4 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 or 406/34 of IPC is not made out against the petitioners, hence, it is submitted that the entire criminal proceeding including the order taking cognizance dated 17.12.2022 in connection with Doranda (Argora) P.S. Case no. 218 of 2011 corresponding to G.R. No. 2851 of 2011 be quashed and set aside. 6. Learned counsel for the opp. party no. 2 and learned Addl. PP vehemently, opposes the prayer for quashing the entire criminal proceeding including the order taking cognizance dated 17.12.2022 in connection with Doranda (Argora) P.S. Case no. 218 of 2011 corresponding to G.R. No. 2851 of 2011. Learned counsel for the opp. party no. 2 relies upon the judgments of the Hon’ble Supreme Court of India in the case of Priti Saraf and Another. vs. State (NCT of Delhi) & Anr. reported in (2021) 16 SCC 142, Indian Oil Corporation vs. NEPC India Ltd. and Ors. reported in (2006) 6 SCC 736, Kamal Shivaji Pokarnekar vs. State of Maharastra and Ors. reported in (2019) 14 SCC 350, Kamala Devi Agarwal vs. State of West Bengal and Ors. reported in (2002) 1 SCC 555, Lalmuni Devi (Smt.) vs. State of Bihar & Ors. reported in (2001) 2 SCC 17, Nagpur Steel & Alloys Pvt. Ltd. vs. P. Radhakrishna @ Rajan and Ors. reported in 1997 SCC (Cri) 1073, and submits that it is a settled principle of law that the only because a civil dispute, arises out of a transaction, from which, a criminal offence also arises, the option for a civil dispute, is not a ground for quashing the entire criminal proceeding. It is next submitted that in those judgments, it has also been held by the Hon’ble Supreme Court of India, that the High Court in exercise of the power under Section 482 of CrPC, should not adopt a strict and hyper-technical approach and if it compels to a colander of finest gazes for testing the ingredients and further submits that it is also a settled principle of law that the endeavor may be testified during the trial. It is next submitted that as the petitioner has not supplied the part of the articles, hence, both the offence punishable under Sections 420 of IPC as well as 406 of IPC is made out; therefore these criminal miscellaneous petitions, being without any merit be dismissed. 5 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 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 as already indicated above, to constitute the offence punishable under Section 420 of IPC, the deception since very beginning the transaction between the parties, is essential. Now, coming to the facts of the case, the petitioners, as admitted by the complainant, himself, have supplied substantial portion of the purchase order and there is no allegation anywhere in the FIR or the materials collected by the I.O., during the investigation of the case, to show that the petitioners had any intention since very beginning to cheat or deceive the informant. 8. Under such circumstances, this court has no hesitation in holding that even if the contents of the FIR, is treated to be true, in its entirety, still the offence punishable under Section 420 of IPC is not made out. 9. It is pertinent to mention here that it is a settled principle of law, that to make out a case of criminal breach of trust, it is not sufficient to show that money 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 and the mere fact, that the accused persons did not pay, the money, to the complainant, does not amount to criminal breach of trust, as has been held by the Hon’ble Supreme Court of India in the case of the Binod Kumar & Others Vs. State of Bihar & Another reported in (2014) 10 SCC 663, paragraph-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 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) 6 Cr.M.P. Nos. 3245 of 2021 with 1084 of 2022 10. Now coming to the facts of the case, there is absolutely, no allegation of dishonest misappropriation of the entrusted property, against the petitioners. Under such circumstances, this Court has no hesitation in holding that the allegations as made in the FIR and the evidence collected during investigation of the case, even if are considered to be true in their entirety, still the offence punishable under Section 406/34 of IPC or Section 420 / 34 of IPC is not made out. Hence, in view of the discussion made above, this Court is of the considered view that continuation of the criminal proceeding, will amount to abuse of the process of law and these are fit cases, where the entire criminal proceeding including the order taking cognizance dated 17.12.2022 in connection with Doranda (Argora) P.S. Case no. 218 of 2011 corresponding to G.R. No. 2851 of 2011 be quashed and set aside. 11. Accordingly, the entire criminal proceeding including the order taking cognizance dated 17.12.2022 in connection with Doranda (Argora) P.S. Case no. 218 of 2011 corresponding to G.R. No. 2851 of 2011, is quashed and set aside. 12. In the result, these criminal miscellaneous petitions are allowed. High Court of Jharkhand, Ranchi Dated, the 11th March, 2024 Smita /AFR (Anil Kumar Choudhary, J.)