Jharkhand High Court
Prakash Jha vs The State Of Jharkhand on 8 February, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1647 of 2018
1. Prakash Jha
2. Holy Cow Pictures Private Limited through its Chairman cum
Managing Director, Mr. Prakash Jha
3. Candir Gobind Gidwani
4. Manmohan Shetty @ Manmohan Ramanna
5. Prabhat Jha .... ...Petitioners
Versus
1. The State of Jharkhand
2. M/s Classic Multiplex Private Limited through Saradindu Sekher Nag
duly authorized by the Chairman-cum-Managing Director, Sri Pawan
Kumar Singh ..... ...Opp. Parties
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Umesh Prasad Singh, Sr. Advocate
(thorough Video Conferencing)
Mr. Jitendra S. Singh, Advocate
Ms. Surbhi, Advocate
For the State :Mr. Prabhu Dayal Agrawal, Spl. P.P.
08/ Dated:-08.02.2024
Notice upon O.P. No.2 has already been effected in the
year, 2019 however nobody appeared on behalf of O.P. No.2 till date
in view of that this petition is being heard in absence of O.P. No.2.
2. Heard Mr. Umesh Prasad Singh, learned senior counsel
(through V.C.) assisted by Mr. Jitendra S. Singh and Ms. Surbhi for
the petitioners and Mr. Prabhu Dayal Agarwal, learned counsel for
the State.
4. This petition has been filed for quashing the entire
criminal proceeding including order taking cognizance dated
10.01.2018 in connection with Complaint Case No. 1499 of 2011,
pending in the Court of the learned Chief Judicial Magistrate,
Ranchi.
5. The complaint case has been filed alleging therein that
the complainant is the duly authorized Agent of the Chairman-cum-
Managing Director of M/s. Classic Multiplex Private Limited. It is
further alleged that the accused no.1 is the Director-cum-Producer
of Indian film industry whereas the accused no.2 to 5 are the
Directors of Holy Cow Pictures Pvt. Ltd. and they are responsible for
day to day business of the said company. It is alleged that the
accused no.1 intended to establish a multiplex in Jamshedpur and
for the same he made requisition before the State Government for
allotment of land measuring an area of 3-4 acres and with the
consent of the State Government and Tata Steel Ltd., 3.12 acres of
land of plot nos. 13, 14 and 17 under khata no.2 under the notified
area of Jamshedpur in Ward No.VI was allotted to him. It is further
alleged that the accused no.1 approached the Chairman-cum-
Managing Director of the complainant-Company, namely, Pawan
Kumar Singh and promised him to give 10,000 sq. ft. of super built
up area, which is going to be constructed at Jamshedpur. The
accused No.1 entered into the written agreement on 13.06.2006 at
Civil Court, Ranchi. The Chairman-cum- Managing Director of the
complainant got prepared three bank drafts of Rs.20 Lakh in the
name of the accused no.1 and handed over the same to the
accused No.1, who accepted the same. All the bank drafts were
handed over to the accused No.1 in presence of the accused Nos.2
to 5. The complainant further alleged that on 28.05.2009, the
Chairman-cum-Managing Director of M/s. Classic Multiplex Pvt. Ltd.
went on the construction site to see the premises, which was
booked by him, however, he was not allowed to enter into the
premises. The Chairman-cum-Managing Director of the complainant
enquired from the supervisor, who was present on the work site
where he has booked 10,000 sq. ft of super built up area on which
the supervisor verified the records and informed him that there is no
booking in his name. The Chairman-cum-Managing Director of the
complainant thereafter approached the accused no.1 on 23.06.2009
and the accused no.1 also confirmed that there is no booking in his
name..
6. Mr. Umesh Prasad Singh, learned senior counsel for the
petitioners submits that the said complaint case was sent by the
learned court under section 156 (3) Cr.P.C. for registration of F.I.R
and investigation and pursuant to that Kotwali P.S. Case No. 480 of
2009 was registered and the police submitted final form stating the
case civil in nature however on the protest petition the learned court
has taken cognizance under section 418 of the I.P.C. by order dated
10.01.2018. He further submits that the allegations are made that
three bank drafts to the tune of Rs. 20 lakhs were given to the
accused no.1 by the O.P. No.2. He further draws the attention of the
Court to the supplementary affidavit filed by the petitioners and
submits that the document of the State Bank of India, SME Branch,
Ranchi has been annexed therein. By referring the letter, learned
senior counsel for the petitioners submits that an amount of Rs. 20
lakh with regard to three drafts which is subject matter of the
complaint is not issued as yet by the bank and the amount of that
drafts is not encashed. By way of referring this document he further
submits that in view of that even if it is accepted that any
agreement is there that agreement itself is void in the light of
Section 25 of the Indian Contract Act, 1872. He further draws the
attention of the Court to para 8 of the complaint petition and
submits that in the said para itself there is admission that for the
breach of agreement if any the present complaint case has been
filed. He further submits that O.P. No.2 has already instituted title
suit for specific performance being Title Suit No. 107 of 2009 which
is pending in the court of learned Civil Judge (Senior Division)-IX,
Jamshedpur. He further submits that in these background if any
case is made out that is civil in nature and the police has rightly
submitted final form inspite of that the learned court has been
pleased to take cognizance under section 418 of the I.P.C. which is
not maintainable. He relied in the case of Inder Mohan Goswami
v. State of Uttaranchal, (2007) 12 SCC 1. He refers to para 42,
45 and 47 of the said judgment which is quoted hereinbelow:-
"42. On a reading of the aforesaid section, it is manifest that
in the definition there are two separate classes of acts which
the person deceived may be induced to do. In the first class of
acts he may be induced fraudulently or dishonestly to deliver
property to any person. The second class of acts is the doing or
omitting to do anything which the person deceived would not
do or omit to do if he were not so deceived. In the first class of
cases, the inducing must be fraudulent or dishonest. In the
second class of acts, the inducing must be intentional but need
not be fraudulent or dishonest. Therefore, it is the intention
which is the gist of the offence. To hold a person guilty of
cheating it is necessary to show that he had a fraudulent or
dishonest intention at the time of making the promise. From his
mere failure to subsequently keep a promise, one cannot
presume that he all along had a culpable intention to break the
promise from the beginning.
45. Even if all the averments made in the FIR are taken to be
correct, the case for prosecution under Sections 420 and 467
IPC is not made out against the appellants. To prevent abuse of
the process and to secure the ends of justice, it becomes
imperative to quash the FIR and any further proceedings
emanating therefrom.
47. Before parting with this appeal, we would like to discuss
an issue which is of great public importance i.e. how and when
warrants should be issued by the court? It has come to our
notice that in many cases bailable and non-bailable warrants
are issued casually and mechanically. In the instant case, the
court without properly comprehending the nature of
controversy involved and without exhausting the available
remedies issued non-bailable warrants. The trial court
disregarded the settled legal position clearly enumerated in the
following two cases."
7. Relying on the said judgment he submits that intention
of cheating from the very beginning ingredient is lacking in the
case in hand however, the learned court has been pleased to take
cognizance under section 418 of the I.P.C. which is not in
accordance with law. He further relied in the case of Murari Lal
Gupta v. Gopi Singh, (2005) 13 SCC 699 . He refers to para 6
of the said judgment which is quoted hereinbelow:-
"6. We have perused the pleadings of the parties, the
complaint and the orders of the learned Magistrate and the
Sessions Judge. Having taken into consideration all the material
made available on record by the parties and after hearing the
learned counsel for the parties, we are satisfied that the
criminal proceedings initiated by the respondent against the
petitioner are wholly unwarranted. The complaint is an abuse of
the process of the court and the proceedings are, therefore,
liable to be quashed. Even if all the averments made in the
complaint are taken to be correct, yet the case for prosecution
under Section 420 or Section 406 of the Penal Code is not made
out. The complaint does not make any averment so as to infer
any fraudulent or dishonest inducement having been made by
the petitioner pursuant to which the respondent parted with the
money. It is not the case of the respondent that the petitioner
does not have the property or that the petitioner was not
competent to enter into an agreement to sell or could not have
transferred title in the property to the respondent. Merely
because an agreement to sell was entered into which
agreement the petitioner failed to honour, it cannot be said that
the petitioner has cheated the respondent. No case for
prosecution under Section 420 or Section 406 IPC is made out
even prima facie. The complaint filed by the respondent and
that too at Madhepura against the petitioner, who is a resident
of Delhi, seems to be an attempt to pressurise the petitioner for
coming to terms with the respondent."
8. Relying on the above judgement Mr. Singh further
submits that merely because the agreement is there that cannot be
subject matter of the criminal proceeding. On these grounds, he
submits that the entire criminal proceeding may be quashed.
9. On the other hand, Mr. Prabhu Dayal Agrawal, learned
senior counsel for the State submits that police submitted final
form saying the case civil in nature however the learned court has
been pleased to take cognizance on the protest petition.
10. Admittedly, the complaint case has been filed alleging
therein that three bank drafts to the tune of Rs. 20 lakh have been
issued which was received by the accused no.1. In para 8 of the
complaint petition itself it has been stated that accused no.1 is
required to refund Rs. 10 crore because of breach of agreement
which clearly suggests that if any case is made out that is civil in
nature and for that criminal colour has been provided by the O.P.
No.2. Further from the document brought on record by way of
supplementary affidavit it is crystal clear that the said bank drafts
have not been encashed as yet and if encashment is not there the
Court finds force in the argument of learned senior counsel for the
petitioners as Section 25 of the Contract is attracted. In the light of
Section 25 of the Contract Act in absence of any consideration the
contract deemed to be void contract. Section 415 I.P.C. is definition
of cheating. In the light of said definition to hold a person guilty of
cheating it is necessary to show that he had fraudulent and
dishonest intention at the time of making the promise.
Consequence of not encashing of drafts in question suggests that
intention from the very beginning was not there which is paramount
consideration in a case arising out under section 415 I.P.C. and
other sections with regard to the cheating.
11. Thus, in view of these facts the judgments relied by
the learned counsels for the petitioners in the case of Inder
Mohan Goswami (supra) and Murari Lal Gupta (supra) are in
favour of the petitioners.
12. It is well settled that a breach of contract does give
rise to criminal prosecution for cheating unless the fraudulent and
dishonest intention is there in the beginning of the transaction.
Merely on the allegation of failure to keep premises will not be
enough to initiate criminal proceeding. Further one fact is on the
record which suggests that Title Suit No. 107 of 2009 was instituted
by the O.P. No.2 which is still pending. Criminal Courts are not
meant to use for settling the scores or pressurize the parties to
settle the dispute. Whenever ingredients of criminal offences are
made out criminal courts can take cognizance.
13. In the case in hand F.I.R. has already been registered
and pursuant to direction of the learned court police investigated
the matter and submitted final form saying the case civil in nature.
In this background the Court finds that final form was rightly
submitted saying the case civil in nature however, the learned court
has taken cognizance on the basis of protest petition. Further the
learned court in order taking cognizance has stated that the case is
arising out of breach of agreement inspite of that he has taken
cognizance.
14. In view of above facts, reasons and analysis the
Court comes to the conclusion that if criminal proceeding is allowed
to be continue against the petitioners before the learned court will
amount the abuse of process of law.
15. Accordingly, the entire criminal proceeding including
order taking cognizance dated 10.01.2018 in connection with
Complaint Case No. 1499 of 2011, pending in the Court of the
learned Chief Judicial Magistrate, Ranchi, is quashed.
16. This petition is allowed and disposed of. Pending I.A,
if any, stands, disposed of. Interim order is vacated.
17. The Court has not opined on the merit of pending
Title Suit and that will be decided in accordance with law without
prejudice to this order.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R
