Somnath Ghosh vs The State Of Jharkhand
2023 Latest Caselaw 2688 Jhar

                                                                         Cr. M.P. No.2056 of 2021




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No.2056 of 2021
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Somnath Ghosh, aged about 50 years, son of Chitranjan Ghosh, resident of Road No.18, Baliharpur, P.O. Pakur, P.S. Pakur (Town), District Pakur (Jharkhand) ... Petitioner Versus

1. The State of Jharkhand

2. Manoj Dokania, son of Late Madan Mohan Dokania, resident of Harindanga, P.O. Pakur, P.S. Pakur, District Pakur (Jharkhand) ... Opposite Parties

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             For the Petitioner            : Mr. Indrajit Sinha, Advocate
                                             Mr. Ajay Kr. Sah, Advocate
                                             Mr. Md. Asadul Haque, Advocate
             For the State                 : Mrs. Priya Shrestha, Spl. P.P.
             For the O.P. No.2             : Mr. Rajesh Kumar, Advocate
                                             Mr. Amit Kumar, Advocate
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                                       PRESENT
                 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 entire criminal proceeding arising out of and

including the First Information Report being Kotal Pokhar P.S. Case No.74 of

2020 registered for the offence punishable under Sections 420 and 427 of the

Indian Penal Code; which is pending before the learned Additional Chief

Judicial Magistrate, Rajmahal, Sahibganj.

3. The brief facts of the case is that the petitioner along with the informant

and one Pradip Agrawal entered into a partnership agreement in the name and

style of M/s. S.B. Stone Works and purchased and acquired some machineries

like Poclain, J.C.B. 205 SC by investing some money. The petitioner, thereafter

Cr. M.P. No.2056 of 2021

entered into an agreement representing himself to be the sole owner of the said

partnership firm and when the informant went to the petitioner for enquiring

the matter, the petitioner threatened to kill him and drove him out of his house

by pushing him.

4. Learned counsel for the petitioner submits that the dispute between the

parties is purely a civil dispute. Drawing attention of this Court towards the

report submitted by the informant, learned counsel for the petitioner submits

that it is the admitted case of the petitioner that for some time the partnership

firm was running properly but after some months the attitude of the informant

changed and he avoided in rendering accounts of the partnership firm which

goes to show that the petitioner has no intention of cheating from the very

inception of the partnership agreement. Hence, the offence punishable under

Section 420 of the Indian Penal Code is not made out against the petitioner. In

support of his contention, learned counsel for the petitioner relies upon the

judgment of the Hon'ble Supreme Court of India in the case of Deepak Gaba &

Others vs. State of Uttar Pradesh & Another reported in (2023) 3 SCC 423

paragraphs-18 and 19 of which read as under:-

"18. In order to apply Section 420 IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415 IPC have to be satisfied. To constitute an offence of cheating under Section 415 IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201]

19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there

Cr. M.P. No.2056 of 2021

should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security."

5. Learned counsel for the petitioner next submits that in the absence of any

allegation of destruction of any property or any change in any property or the

situation thereof, the allegation of mischief is also not made out against the

petitioner. It is further submitted that even if the allegations made in the F.I.R.

are accepted to be true in its entirety, still the offence punishable under Sections

420 or 427 of the Indian Penal Code is not made out. It is further submitted that

the F.I.R. has been lodged for wrecking vengeance and for oblique purpose.

Hence, it is submitted that the entire criminal proceeding arising out of and

including the First Information Report being Kotal Pokhar P.S. Case No.74 of

2020 which is pending before the learned Additional Chief Judicial Magistrate,

Rajmahal, Sahibganj, be quashed and set aside.

6. Learned Spl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 vehemently oppose the prayer for quashing the entire

criminal proceeding arising out of and including the First Information Report

being Kotal Pokhar P.S. Case No.74 of 2020 which is pending before the learned

Additional Chief Judicial Magistrate, Rajmahal, Sahibganj and learned counsel

for the opposite party No.2 submits that in the written report itself it has been

mentioned that after looking at three agreements, it is crystal clear that the day

on which the petitioner entered into the first agreement, on that day he was

having malafide intention in his mind. Hence, in the name of the company he

added 'Proprietor- Somnath Ghos' though it was a partnership firm. It is next

submitted by the learned counsel for the opposite party No.2 that the petitioner

has received Rs.1,29,87,355/- from M/s. Siddi Vinayaka Aggregate Private

Limited which was never disclosed by the petitioner to the opposite party No.2

Cr. M.P. No.2056 of 2021

and the petitioner has taken money from the opposite party No.2/informant

from time to time and started his mining work and also took money to

purchase Poclain and Breaker machines through another agreement but no

profit amount has been paid to the opposite party No.2. Hence, it is submitted

that this Cr.M.P., being without any merit, be dismissed.

7. 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

informant and the other partners entered into partnership knowing pretty well

that the name of the partnership firm is M/s. S.B. Stone Works (Prop. Somnath

Ghosh) so, it is not that something the petitioner has committed behind their

back. So, when something which was done with the knowledge and consent of

the informant/opposite party No.2, the same cannot be said to have been done

by the petitioner with intention to deceive since the time of entering into the

agreement. Hence, this Court is of the considered view that even if the contents

of the F.I.R. are treated to be true in its entirety, still the offence punishable

either under Sections 420 of the Indian Penal Code is not made out. More so

because in the absence of any imputation against the petitioner that he had the

intention to deceive the informant/opposite party No.2 at the time of entering

into the partnership agreement with him. Further it appears that for some time

the partnership business was running properly and that's why the informant

made additional investment for purchasing a Poclain machine. So far as the

offence punishable under section 427 of the Indian Penal Code is concerned, to

constitute the same commission of mischief is sine qua non. Further, to

constitute mischief destruction of the property is an essential ingredient. In this

case, there is no allegation against the petitioner of causing any destruction of

any property. So in the absence of such allegation, the commission of mischief

Cr. M.P. No.2056 of 2021

by the petitioner is not made out. In the absence of mischief, the offence

punishable under section 427 of the Indian Penal Code; is not made out either.

8. Accordingly, in the considered opinion of this Court the continuation of

this criminal proceeding will amount to abuse of process of law and this is a fit

case where the entire criminal proceeding arising out of and including the First

Information Report being Kotal Pokhar P.S. Case No.74 of 2020 which is

pending before the learned Additional Chief Judicial Magistrate, Rajmahal,

Sahibganj, be quashed and set aside.

9. Accordingly, the entire criminal proceeding arising out of and including

the First Information Report being Kotal Pokhar P.S. Case No.74 of 2020 which

is pending before the learned Additional Chief Judicial Magistrate, Rajmahal,

Sahibganj, as prayed for by the petitioner, is quashed and set aside.

10. In the result, this Cr.M.P. stands allowed.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 08th of August, 2023 AFR/ Animesh