Jharkhand High Court

Dilip Kumar Verma vs The State Of Jharkhand on 30 November, 2023

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                     1                        Cr.M.P. No. 567 of 2010
                                                                                        With
                                                                              Cr.M.P. No. 568 of 2010



                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 567 of 2010
                 Dilip Kumar Verma                                  ... Petitioner
                                       -Versus-
            1.   The State of Jharkhand
            2.   Ram Bilas Prasad                        ... Opposite Parties
                                         With
                                 Cr.M.P. No. 568 of 2010
                 Rajesh Kumar Verma                      ... Petitioner
                                       -Versus-
            1.   The State of Jharkhand
            2.   Ram Bilas Prasad                        ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Vibhor Mayank, Advocate (In both cases) Ms. Oishi Das, Advocate For the State : Mr. Shailesh Kumar Sinha, A.P.P. (In Cr.M.P.-567/2010) Mr. Pankaj Kumar Mishra, A.P.P. (In Cr.M.P.-568/2010)

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09/30.11.2023 Heard Mr. Vibhor Mayank and Ms. Oishi Das, learned counsel for the

petitioners and Mr. Shailesh Kumar Sinha and Mr. Pankaj Kumar Mishra,

learned counsel for the State.

2. These petitions have been filed for quashing the entire criminal

proceeding as well as the order taking cognizance dated

21.12.2009/23.12.2009 passed by the learned Chief Judicial Magistrate,

Ranchi in Lalpur P.S. Case No.90 of 2009, corresponding to G.R. No.1795 of

2009, pending in the Court of the learned Sub Divisional Judicial Magistrate,

Ranchi. The order framing charge dated 08.04.2022 was subsequently

challenged by way of filing I.A. Nos. 4034 of 2022 and 4035 of 2022, which

were allowed by this Court vide order dated 08.12.2022. Thus, the order

framing charge dated 08.04.2022 is also under challenge in these petitions.

3. The FIR was lodged alleging therein that Suryav Kumar Verma,

Rajesh Kumar Verma and Dilip Kumar Verma along with Jitendra Mahato

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have taken Rs.1,00,000/- from the informant on 12.02.2002 on entering

into an agreement of sale with regard to land measuring 30 decimals and

further between the year 2002-2004, they have taken Rs.13 Lacs on the

pretext of selling the said land to the informant and his daughter, but

Suryav Kumar Verma failed to execute the sale deed even after receiving

the said amount. It was further alleged that the daughter of the informant

lodged a case in Jamshedpur wherein Suryav Kumar Verma undertook to

pay the said amount in installments of Rs.1 Lac per month, but after three

months, Suryav Kumar Verma died. It was also alleged that when the

informant approached Rajesh Kumar Verma and Dilip Kumar Verma for

payment of the balance amount, a sum of Rs.50,000/- was paid by them

and on pressure being given, a cheque of Rs.5 Lacs was issued. It was

further alleged that the accused persons refused to make the subsequent

payments and when the cheque so issued by them was placed before the

banker, the same was dishonoured. Thereafter, the present case was lodged

against the petitioners.

4. Mr. Vibhor Mayank, learned counsel for the petitioners submits that

the police has mechanically conducted investigation and submitted charge-

sheet against the petitioners under Section 420 and 406 of the Indian Penal

Code and the learned Court has taken cognizance without applying judicial

mind. He further submits that the case is arising out of an agreement

between one Suryav Kumar Verma, who was the brother of these

petitioners and Ram Bilas Prasad, who is the informant. He also submits

that the agreement is between the brother of the petitioners and the

informant and unnecessarily, the petitioners have been made accused. He

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further submits that for registration of the sale deed, the present case has

been lodged. By way of referring photo copy of the cheques, he submits

that the entire amount was paid to Late Suryav Kumar Verma. He submits

that earlier one case was filed against Late Suryav Kumar Verma and he

died and, thereafter, the present case has been lodged against the

petitioners, who happened to be brothers of Late Suryav Kumar Verma. He

submits that the entire case is civil in nature, however, the learned Court

has taken cognizance.

5. Mr. Shailesh Kumar Sinha, learned counsel for the State in Cr.M.P.

No.567 of 2010 and Mr. Pankaj Kumar Mishra, learned counsel for the State

in Cr.M.P. No.568 of 2010 submit that the charge-sheet is submitted and,

thereafter, the learned Court has taken cognizance and charge has also

been framed.

6. The Court has gone through the documents on the record. The

contents of the FIR suggest that there was an agreement between Late

Suryav Kumar Verma and Ram Bilas Prasad for sale of certain land and the

cheques are issued in favour of Late Suryav Kumar Verma. In the FIR itself,

it is stated that Late Suryav Kumar Verma was refunding the amount in

form of installments of Rs.1 Lac per month and after three months, he has

left for his heavenly abode and that is why, the present FIR has been lodged

against the petitioners, which clearly suggests that if any case is made out

against the petitioners, that is under the provision of the Specific Relief Act,

whereas, criminal case has been filed against the petitioners and they have

been implicated in the present case and pursuant to that, they are facing

trial.

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7. A reference may be made to the judgment passed by the Hon'ble

Supreme Court in the case of Satishchandra Ratanlal Shah v. State of

Gujarat and another, reported in [(2019) 9 SCC 148], wherein, at

paragraph 13, it has been held as under:

"13. Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 :

2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred."

8. The amount was paid by the informant for purchase of the land to

Late Suryav Kumar Verma and he has already started to refund the amount

and in the meantime, he has left for his heavenly abode and, thereafter, the

present FIR was lodged against the petitioners, who happened to be

brothers of Late Suryav Kumar Verma. In view of that, there is no sufficient

evidence to indicate that the offence under Sections 406 and 420 of the

Indian Penal Code, so far as these petitioners are concerned, is made out.

9. The Court finds that the order taking cognizance dated 21.12.2009/

23.12.2009 is also not in accordance with law. The word cognizance and

name of the transferring Court are filled up in blank space, which suggests

that there is non-application of judicial mind.

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