Nishant Kumar Singh @ Nischit Kumar Singh @ Nishit Kumar Singh, aged about 52 v. 1. The State of Jharkhand 2. Keshar Ali, S/O Abdul Mahan, R/O Kharpose, P.O
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3648 of 2023 ------ Nishant Kumar Singh @ Nischit Kumar Singh @ Nishit Kumar Singh, aged about 52 years, son of Narendra Kumar Singh, resident of Riga Road, Janki Asthan, Ward No.1, Chakmahila, P.O. Chakmahila, P.S. Chakmahila, District- Sitamarhi (Bihar). … Petitioner Versus 1. The State of Jharkhand 2. Keshar Ali, S/O Abdul Mahan, R/O Kharpose, P.O. & P.S.- Manjhgaon, Chaibasa District- West Singhbhum. … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
“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) and submits that even if the entire allegations against the petitioner are considered to be true in their entirety, still none of the offences for which the learned Additional Chief Judicial Magistrate, Chaibasa has found prima facie case is made out. 6. Learned counsel for the petitioner next relies upon the judgment of this Court in the case of Sandeep Bhargava vs. The State of Jharkhand & Another and allied case passed in Cr.M.P. No.3245 of 2021 & allied case wherein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of 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 4 Cr. M.P. No.3648 of 2023 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) Wherein the Hon’ble Supreme Court of India reiterated the settled principle of law that in order 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; it
Arguments
: Mr. Rishi Pallava, Advocate : Mr. Pankaj Kumar, P.P. : Mr. Madhav Prasad, 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 the order dated 29.01.2016 passed by the Additional Chief Judicial Magistrate, Chaibasa in connection with Manjhgaon P.S. Case No.07 of 2014 corresponding to G.R. Case No.95 of 2014 by which the learned Additional Chief Judicial Magistrate, Chaibasa has taken cognizance against the petitioner of the offences punishable under Sections 406, 420, 506 of the Indian Penal Code and also to quash the entire criminal proceeding in connection with the said case. 3. The brief fact of the case is that the co-accused Ramchandra Singh, after negotiation with the informant, took stone chips and the machine used for 1 Cr. M.P. No.3648 of 2023 construction of road on hire. He paid some money from time to time to the complainant in respect of the stone chips taken by him as well as for hiring the Road construction vehicle. Thereafter, the co-accused Ramchandra Singh entered into an agreement with the petitioner and the petitioner promised to pay the remaining amount the informant, in terms of the agreement entered into by the petitioner and the co-accused Ramchandra Singh; but the petitioner did not pay the remaining amount due and payable by the co-accused Ramchandra Singh, who is the informant. On the basis of the written report submitted by the informant, police registered Manjhgaon P.S. Case No.07 of 2014 and took up investigation of the case. After completion of investigation, police found the allegation against the petitioner to be true and submitted charge-sheet and basing upon the same, the learned Additional Chief Judicial Magistrate, Chaibasa has taken cognizance of the offences inter alia against the petitioner. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Naresh Kumar & Another vs. State of Karnataka & Another reported in 2024 SCC OnLine SC 268 paragraph-7 of which reads as under:- “7. Relying upon the decision in Paramjeet Batra(supra), this Court in Randheer Singh v. State of U.P., (2021) 14 SCC 626, observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. In Usha Chakraborty v. State of West Bengal, 2023 SCC OnLine SC 90, relying upon Paramjeet Batra (supra) it was again held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure.” (Emphasis supplied) and submits that the Hon’ble Supreme Court has time and again reiterated the settled principle of law that where a dispute, which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be 2 Cr. M.P. No.3648 of 2023 quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure. 5. Learned counsel for the petitioner next relies upon the judgment of this court in the case of Raj Kishore Modi & Another vs. State of Jharkhand & Another reported in 2023 SCC OnLine Jhar 2701 wherein this court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360, paragraph-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 the Hon’ble Supreme Court of India in the case of Dalip Kaur & Others vs. Jagnar Singh & Another reported in (2009) 14 SCC 696, paragraph-10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar 3 Cr. M.P. No.3648 of 2023 is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (Ajay Mitrav.State of M.P.[(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” (Emphasis supplied) as also the judgment of the Hon’ble Supreme Court of India in the case of Umashankar Gopalika vs. State of Bihar reported in (2005) 10 SCC 336, paragraph-6 of which reads as under:-
Decision
must also be shown that the accused persons 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. 7. It is next submitted that in this case, there is no allegation against the petitioner that the petitioner played deception from the very inception of the transactions between the parties. It is also submitted that there is no allegation against the petitioner that the petitioner, after deceiving the informant, induced the informant to part with money rather all the transactions of giving the stone chips and hiring the machine used for construction of road was made between the informant and the co-accused namely Ramchandra Singh. It is lastly submitted that the prayer made in this criminal miscellaneous petition be allowed. 8. Learned Public Prosecutor 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 and submit that the allegation made in the F.I.R. is sufficient to constitute all the offences, in respect of which cognizance has been taken by the learned Additional Chief Judicial Magistrate, Chaibasa; hence, at this nascent stage, the prayer for quashing the order dated 29.01.2016 passed by the Additional Chief Judicial Magistrate, Chaibasa in connection with 5 Cr. M.P. No.3648 of 2023 Manjhgaon P.S. Case No.07 of 2014 corresponding to G.R. Case No.95 of 2014, ought not be allowed. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 9. 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 (supra) 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 will not amount to cheating. 10. Now coming to the facts of the case, it is admitted case of the informant that there were business transactions between the informant and the co-accused namely Ramchandra Singh and the informant was paid money from time to time by the co-accused namely Ramchandra Singh. So, it cannot be said that the petitioner has played deception since the beginning of the transactions and in the absence of the same, certainly, even if the allegations made against the petitioner 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 petitioner. 11. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the essential ingredient to constitute the said offence is that there must be entrustment of any property to the accused or the accused person having dominion over any property. Now coming to the facts of the case, there is no allegation of any entrustment of any property to the petitioner rather the entrustment is against the co-accused Ramchandra Singh. There is also no 6 Cr. M.P. No.3648 of 2023 allegation of dishonest misappropriation or conversion to his own use of any property by the petitioner. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out. 12. So far as the offence punishable under Section 506 of the Indian Penal Code is concerned, the same is against the co-accused Ramchandra Singh and there is no allegation against the petitioner of threatening the informant in any manner. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 506 of the Indian Penal Code is not made out. 13. In view of the discussions made above, this Court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the order dated 29.01.2016 passed by the Additional Chief Judicial Magistrate, Chaibasa in connection with Manjhgaon P.S. Case No.07 of 2014 corresponding to G.R. Case No.95 of 2014, be quashed and set aside qua the petitioner only. 14. Accordingly, the order dated 29.01.2016 passed by the Additional Chief Judicial Magistrate, Chaibasa in connection with Manjhgaon P.S. Case No.07 of 2014 corresponding to G.R. Case No.95 of 2014, is quashed and set aside qua the petitioner only. 15. In the result, this Criminal Miscellaneous Petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 25th of November, 2024 AFR/ Saroj 7 Cr. M.P. No.3648 of 2023