Shasank Gupta vs State Of Jharkhand
2021 Latest Caselaw 1125 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                            Cr. M. P. No. 1097 of 2008

           1.Shasank Gupta
           2. Jagjot Singh         ...    ...      ...        Petitioners
                                   Versus
           1. State of Jharkhand
           2. Kaushar Alam               ...     ...        Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioners : Mr. Anil Kumar Sinha, Senior Advocate Mr. Pankaj Kumar, Advocate For the State : None For the O.P. No. 2 Mr. Sharabil Ahmed, Advocate

Through Video Conferencing

17/05.03.2021

1. Heard Mr. Anil Kumar Sinha, learned senior counsel appearing on behalf of the petitioners.

2. Heard Mr. Sharabil Ahmed, learned counsel appearing on behalf of the opposite party No. 2.

3. Nobody appears on behalf of the State.

4. Learned senior counsel for the petitioners had advanced his argument on 19.02.2021 and today the case was fixed for the argument of opposite party No. 2.

5. Learned counsel appearing on behalf of opposite party No. 2 has referred to the impugned order taking cognizance. He submits that the order taking cognizance is an elaborate order dealing with every aspect of the matter and a well speaking order has been passed indicating the criminality of the petitioners involved in the present case. He also submits that altogether 4 witnesses were also examined from the side of the prosecution and thereafter the cognizance has been taken. Learned counsel submits that merely because there is an element of civil dispute between the parties that by itself does not exclude the applicability of criminal law as the basic ingredients of offence under Sections 420/406 of the Indian

Penal Code read with Section 120B are made out in the present case. He has referred to the judgment passed by the Hon'ble Supreme Court reported in (2009) 8 SCC 751 paragraph 8 and also the judgment reported in (2019) 9 SCC 677 para 8,9 and 10 to submit that it has been held by the Hon'ble Supreme Court that there could be situations where civil as well as criminal liability are involved. Learned counsel has referred to the impugned order taking cognizance to indicate that the learned court below has found the criminal intent of the petitioners.

6. In response, learned counsel appearing on behalf of the petitioners has submitted that the fact remains that apart from money transaction the factory premises was handed over to the complainant itself indicates that there was no criminal intent right from the beginning and the judgments which has been cited by the learned counsel for the opposite party No. 2 only indicates exception to the general rule that when there is civil dispute it cannot be given a colour of a criminal case. He has referred to the judgment passed by the Hon'ble Supreme Court reported in (2005) 10 SCC 336 para 7 as well as judgment reported in (2015) 8 SCC 293 para 9 to 12 which arose out of quashing of the F.I.R. and he submits that in this judgment it has been held that if at the initial stage, there is no criminal intent, subsequent change of intention will not give rise of a criminal case. However, during the course of argument it transpired that statement of the witnesses who have deposed before the learned court below prior to taking cognizance are not on record of this case .

7. Arguments concluded.

8. Post this case for judgment on 12.03.2021.

(Anubha Rawat Choudhary, J.) Binit/