Jharkhand High Court
Aspire Techno Engineers Represented ... vs The State Of Jharkhand on 3 November, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:32841)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1517 of 2025
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1. Aspire Techno Engineers represented through its Proprietor P. Arvind Kumar, aged about 45 years, son of P. Gurumurthy, having its registered office at D.No.31-29-11, Govind Road, Allipuram, P.O. and P.S. Allipuram, District Vishakhapatnam (Andhra Pradesh).
2. P. Arvind Kumar, aged about 45 years, son of P. Gurumurthy, resident of D.No.31-29-11, Govind Road, Allipuram, P.O. and P.S. Allipuram, District Vishakhapatnam (Andhra Pradesh).
... Petitioners
Versus
1. The State of Jharkhand
2. Tarun Kanti Ghosh, aged about 40 years, son of Tapan Kumar Ghosh, resident of D-368, New Dimna Road, P.S. Mango (Olidih), P.O. Mango, Jamshedpur, District East Singhbhum ... Opposite Parties
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For the Petitioners : Mr. Amit Kumar Sinha, Advocate
Ms. Vidhika Saboo, Advocate
Ms. Saman Ahmad, Advocate
For the State : Mr. Bhola Nath Ojha, Spl.P.P.
For the O.P. No.2 : None
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PRESENT
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 528 of the Bharatiya Nagarik 1 Cr. M.P. No.1517 of 2025 (2025:JHHC:32841) Suraksha Sanhita, 2023 with the prayer to quash the entire criminal proceedings in relation to Protest-cum-Complaint Case No.2203 of 2021 along with the order dated 07.03.2022 by which the learned Magistrate has found prima facie case for the offences punishable under Sections 406, 420, 120B and 34 of the Indian Penal Code and ordered for issue of summons.
4. The brief fact of the case is that the petitioners induced the complainant to part with 49 cheque leaves in connection with the business in the name of the company, with which the complainant was associated. The petitioners did not use the cheque leaves in the business but misused the same for instituting Calendar Case No.1298 of 2019 in the court of Special Magistrate-V, Vishakhapatnam in which the complainant has been convicted, for having committed the offence punishable under Section 138 of N.I. Act and has been sentenced to Simple Imprisonment of one year; despite taking the plea that the said cheques were stolen cheques.
5. Learned counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court of the India in the case of S.C. Garg vs. State of Uttar Pradesh passed in Criminal Appeal No(s).438 of 2018 dated 16th April, 2025 reported in 2025 LiveLaw (SC) 436 paragraph-20 of which reads as under:-
"20. For the above reason it is absolutely clear that Tyagi cannot maintain a prosecution on the basis of allegations which were precisely his defence in the earlier proceedings wherein he was an accused. Thus, the present criminal proceedings deserve to be quashed on this ground alone."2 Cr. M.P. No.1517 of 2025
(2025:JHHC:32841) and submits that therein it has been held by the Hon'ble Supreme Court of India that a person cannot maintain a prosecution on the basis of allegations which were precisely his defence in the earlier proceedings wherein he was an accused.
6. It is next submitted that in this case, except the plea that the cheques were misused, there is no allegation against the petitioner and even if the entire allegations made against the petitioners are considered to be true in their entirety, still none of the offences punishable under Sections 406, 420, 120B and 34 of the Indian Penal Code is made out against the petitioners. Hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.
7. Learned Spl.P.P. appearing for the State vehemently opposes the prayer of the petitioners made in the instant Cr.M.P. and submits that no illegality has been committed by the learned Magistrate in finding prima facie case for the offences in view of ample materials available in the record in support of the same. Therefore, 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, this Court finds that the dispute between the parties is basically a civil dispute regarding a mining lease which was taken by way of a power of attorney by the complainant. Some of the money has been paid to the complainant but Rs.1,88,00,000/- has not been paid. The undisputed fact remains that the complainant has been convicted in Calendar Case No.1298 of 2019 of the court of Special Judge-V, Vishakhapatnam for 3 Cr. M.P. No.1517 of 2025 (2025:JHHC:32841) having committed the offences punishable under Section 138 of N.I. Act; despite taking the plea that the cheques which were dishonoured, were stolen cheques. Since that plea has not been accepted even though weighing the same in the scale of the balance of preponderance of probability as a defence evidence, this Court is of the considered view that there is insufficient material so far as the offence punishable under Section 406 of the Indian Penal Code against the petitioner, in the absence of any entrustment of property or any dishonest misappropriation of the property against the petitioner. Thus, this Court has no hesitation in holding that even if entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners.
9. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, it is a settled principle of law that in order to constitute the offence punishable under Section 420 of the Indian Penal Code, the accused must have played deception since the beginning of the transaction between the parties and if the intention to cheat develops later on, the same will not 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 4 Cr. M.P. No.1517 of 2025 (2025:JHHC:32841) 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)
10. Now, coming to the facts of the case; there is absolutely no allegation against the petitioners of playing any deception since the beginning of the transaction between the parties and in the absence of the same even if the entire allegations made against them 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. In the absence of any of the ingredients of the offence punishable under Section 120B of the Indian Penal Code being made out from the materials available in the record, the said offence is not made out even if the entire allegations made against them are considered to be true in their entirety.
12. As none of the offences in respect of which learned Judicial Magistrate-1st Class, Jamshedpur has found prima facie is made out against the petitioners, this Court has no hesitation in holding 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 proceedings in relation to Protest-cum-Complaint Case No.2203 of 2021 along with the order dated 07.03.2022 passed by the learned Judicial Magistrate-1st Class, Jamshedpur, be quashed and set aside.
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(2025:JHHC:32841)
13. Accordingly, the entire criminal proceedings in relation to Protest-cum-Complaint Case No.2203 of 2021 along with the order dated 07.03.2022 passed by the learned Judicial Magistrate-1st Class, Jamshedpur, is quashed and set aside against the petitioners.
14. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 03rd of November, 2025 AFR/ Animesh Uploaded on- 07 / 11 /2025 6 Cr. M.P. No.1517 of 2025