Jharkhand v. 1. The State of Jharkhand 2. Chandrashekhar Paswan, son of Vijendra Paswan, aged about
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3972 of 2019 ------ 1. Sandeep Kumar Bhatia, son of Ved Prakash Bhatia, aged about 58 years, 2. Sabita Bhatia @ Savita Bhatia, wife of Sandeep Kumar Bhatia, aged about 48 years Both are residents of: P.P. Compound, P.O. & P.S. Chutia, Town and District: Ranchi, State: Jharkhand … Petitioners Versus 1. The State of Jharkhand 2. Chandrashekhar Paswan, son of Vijendra Paswan, aged about 37 years, resident of Kuswaha Nagar, Chas, P.O. & P.S. Chas, District Opposite Parties Bokaro, Jharkhand … ------ For the Petitioners For the State For the O.P. No.2
Legal Reasoning
Magistrate has found prima facie case is made out, even if the entire allegations made in the complaint, statement on solemn affirmation and the statement of enquiry witnesses are considered to be true in their entirety, hence, continuation of this criminal proceeding against the petitioners will amount to 6 Cr. M.P. No.3972 of 2019 abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding in connection with Complaint Case No.406 of 2018 which is now pending before the learned Judicial Magistrate-1st Class, Bokaro, be quashed and set aside qua the petitioners. 18. Accordingly, the entire criminal proceeding in connection with Complaint Case No.406 of 2018 which is now pending before the learned Judicial Magistrate-1st Class, Bokaro, is quashed and set aside qua the petitioners named above. 19. 20.
Arguments
: Ms. Surabhi, Advocate : Ms. Nehala Sharmin, Spl.P.P. : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Though notice has validly been served upon the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls. 3. 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 in connection with Complaint Case No.406 of 2018 whereby and where under the learned Judicial Magistrate-1st Class, Bokaro has found prima facie case for the offences punishable under Sections 420, 406, 468, 471, 506, 34 of the Indian 1 Cr. M.P. No.3972 of 2019 Penal Code and ordered to issue summons to the petitioners and the said case is now pending before the learned Judicial Magistrate-1st Class, Bokaro. 4. The allegation against the petitioners is that the complainant entered into an agreement with the petitioners and the petitioners took Rs.21,000/- in cash and Rs.10,00,000/- by cheque and later on also took Rs.2,00,000/- and Rs.1,00,000/- by issuing money receipt in a stamp paper and the petitioner No.1 has also issued a cheque of Rs.4,00,000/- in the name of the company of the complainant. It is alleged that the petitioner No.1 has taken Rs.17,21,000/- in total and entered into an agreement but subsequently they have entered into an agreement with a second person as well in respect of constructing an apartment but did not return the money. On the complainant issuing notice through his advocate, the same was replied by the petitioners contending therein that they have not taken any money from the complainant. The learned Judicial Magistrate-1st Class, Bokaro considering the complaint, statement on solemn affirmation and the statement of the enquiry witnesses found prima facie case for the offences punishable under Sections 420, 406, 468, 471, 506, 34 of the Indian Penal Code. 5. Learned counsel for the petitioners submits that the petitioners are innocent and they have not committed any offence. It is next submitted that the petitioners are the owner of the land and they have entered into a Development Agreement with M/s. Friends Home Care Private Limited represented through its Managing Director namely Mr. Sanjay Kumar. Some money was paid by the said developer to the petitioners but as the said developer failed and neglected to perform his part of the contract, the petitioners orally cancelled the development agreement; upon which the petitioners have refunded the money 2 Cr. M.P. No.3972 of 2019 to the said M/s. Friends Home Care Private Limited. It is next submitted that the petitioners have no concern with the complainant. It is further submitted that there is no chit of paper with the complainant to show entrustment of any money to the petitioners. The complainant is not a party to the development agreement entered into by the petitioners and the said M/s. Friends Home Care Private Limited. It is then submitted that the petitioners have not received any money from the complainant. It is next submitted that apparently because of some dispute between the complainant and M/s. Friends Home Care Private Limited, this false case has been foisted for wrecking vengeance. It is then submitted that there is no allegation against the petitioners of playing any deception since the beginning of the transactions between the parties, hence, the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners. 6. Learned counsel for the petitioners further submits that there is no allegation against the petitioners of any dishonest misappropriation. Hence, the offence punishable under Section 406 of the Indian Penal Code is not made out. It is next submitted that in the absence of any allegation of any commission of the offence of forgery, the offence punishable under Sections 468 and 471 of the Indian Penal Code is not made out against the petitioners and in the absence of any allegation of criminal intimidation, the offence punishable under Section 506 of the Indian Penal Code is also not made out against the petitioners. Hence, it is submitted that the prayer of the petitioners, as prayed for in the instant Cr.M.P., be allowed. 7. Learned Spl.P.P. appearing for the State on the other hand submits that the allegation made against the petitioners in the complaint, statement on 3 Cr. M.P. No.3972 of 2019 solemn affirmation and statement of enquiry witnesses are sufficient to constitute the offence, in respect of which the learned Judicial Magistrate-1st Class, Bokaro has found prima facie case against the petitioners. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. 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 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) 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. 9. Now, coming to the facts of the case, there is no allegation against the petitioners of deceiving the complainant since the beginning of the transaction between the parties; that too, in respect of which no chit of paper could be produced by the complainant nor the complainant could produce any chit of paper regarding entrustment of any money to the petitioners. 4 Cr. M.P. No.3972 of 2019 10. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners. 11. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India 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) 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. It must also be shown that the accused person dishonestly disposed of the same in some way or dishonestly retained the same. 12. Now, coming to the allegations against the petitioners, firstly there is no documentary evidence of entrustment of any money to the petitioners by the complainant. Secondly, there is no allegation against the petitioners of dishonestly disposing of any entrusted money or property or dishonestly 5 Cr. M.P. No.3972 of 2019 retaining the same. In the absence of the same, this Court is of the considered view that the offence punishable under 406 of the Indian Penal Code is not made out against the petitioners. 13. So far as the offence punishable under Sections 468 and 471 of the Indian Penal Code is concerned, the essential ingredient to constitute both the said offences, is forgery. But there is absolutely no allegation of forgery against the petitioners. 14. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Sections 468 and 471 of the Indian Penal Code is not made out against the petitioners. 15. So far as the offence punishable under Section 506 of the Indian Penal Code which relates to criminal intimidation is concerned, this Court after carefully going through the materials available in the record finds that there is no allegation against the petitioners of criminally intimidating the complainant or anyone else in any manner. 16. Under such circumstances, this Court is of the considered view that the offence punishable under Section 506 of the Indian Penal Code is not made out against the petitioners. 17. In view of the discussions made above, this Court is of the considered view that as none of the offences in respect of which the learned Judicial
Decision
In the result, this Cr.M.P., stands allowed. In view of disposal of the instant Cr.M.P., the interim order granted vide order dated 17.01.2020, is vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of August, 2024 AFR/ Animesh 7 Cr. M.P. No.3972 of 2019