Jharkhand High Court
Amitabh Thakur vs The State Of Jharkhand on 10 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.2242 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2242 of 2023
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Amitabh Thakur, aged about 59 years, son of Sri V.N. Thakur,
proprietor of M/s Shyma Enterprises, resident of Ho. No. 77, Shyam
Path Kadma, P.O. and P.S.- Kadma, Town- Jamshedpur, District-
East Singhbhum, Jharkhand-831005 and permanent resident of Flat
No.F/2, Block- C, Kamdhanu Apartment, Marine Drive, Kadma,
P.O. and P.S.- Kadma, Town- Jamshedpur, District- East Singbhum-
831005, at present residing at Flat No.6/11, Road No.11, Ward No.15,
Harom Nagar, Adityapur, P.O. & P.S. Adityapur, District Saraikela-
Kharsawan. ... Petitioner
Versus
1. The State of Jharkhand
2. IDBI Bank Ltd. Represented through Branch Head Manager Sri
Ravi Bhusan, son of Shri Suraj Prasad having its Branch Office at
Holding No. 1378, Govindnagar, S.D. Singh Path Kadma, P.O. and
P.S. Kadma, Jamshedpur, East Singhbhum, Jharkhand 831005.
... Opposite Parties
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For the Petitioner : Mr. Anish Kr. Mishra, Advocate
Mr. Ashish Priyadarshi, Advocate
For the State : Ms. Kumari Rashmi, Addl. P.P.
For the O.P. No.2 : Mr. Parth S.A.S. Pati, 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 F.I.R. of Kadma P.S. Case No.147 of 2022 registered
for the offence punishable under Sections 406 and 420 of the Indian Penal Code
arising out of Complaint Case No.418 of 2021 along with entire criminal
proceedings of the said case which is now pending before the learned S.D.J.M.,
Jamshedpur.
3. The brief facts of the case is that the petitioner availed a loan for working
capital of Rs.6,00,000/- on 19.09.2017 from the complainant Bank by executing
various loan documents but subsequently he defaulted in repayment of the
loan amount and changed his residential address and mobile number without
informing the Bank as the complainant- Bank was of the feeling that right from
the beginning the petitioner-accused approached the Bank with dishonest
intention of cheating and committed criminal breach of trust and due to this
reason he has planned with cool mind and changed his residential address and
committed criminal breach of trust for his illegal gain causing illegal loss to
Bank. Hence, Complaint Case No.418 of 2021 has been filed which upon being
referred to police under Section 156 (3) of Cr.P.C., the F.I.R. of Kadma P.S. Case
No.147 of 2022 has been registered in which investigation is going on.
4. Learned counsel for the petitioner relies upon the judgment of this Court
in the case of Mr. Gunjan Koushik vs. The State of Jharkhand & Another
dated 23rd of November, 2023 passed in Cr.M.P. No.2050 of 2022 wherein this
Court relied upon the judgment of the Hon'ble Supreme Court of India in the
case of Uma Shankar Gopalika vs. State of Bihar & Anr. 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 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)
And this Court reiterated the settled principle of law 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 will not amount to cheating.
5. Learned counsel for the petitioner draws the attention of this Court
towards the supplementary affidavit and submits that as although the fact that
the loan was availed in the year 2017 but the complaint having been filed in the
year 2021 which shows that for four years the petitioner was satisfactorily
maintaining the accounts with the complainant-Bank and four years is too long
a period to allege that since the beginning of availing the loan the petitioner
had the intention to cheat the complainant- Bank. Hence, it is submitted that
the complainant- Bank has given a cloak of criminal offence to a purely civil
dispute. It is lastly submitted that the F.I.R. of Kadma P.S. Case No.147 of 2022
arising out of Complaint Case No.418 of 2021 along with entire criminal
proceedings of the said case which is now pending before the learned S.D.J.M.,
Jamshedpur, be quashed and set aside.
6. Learned Addl.P.P. appearing for the State and learned counsel for the
opposite party No.2 vehemently oppose the prayer of the petitioner to quash
and set aside the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of
Complaint Case No.418 of 2021 along with entire criminal proceedings of the
said case and submit that it not the case of mere default in repayment of loan
amount but additionally the petitioner has changed his residential address and
mobile number without informing the Bank. Hence, the same shows a criminal
intention of the petitioner which is sufficient to constitute the offence
punishable under Sections 406 and 420 of the Indian Penal Code. 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, it is pertinent to mention
here that it is a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar
& Anr. reported in (2014) 10 SCC 663, paragraph-18 of which reads as under :-
"18. In the present case, looking at the allegations in the complaint on
the face of it, we find that no allegations are made attracting the
ingredients of Section 405 IPC. Likewise, there are no allegations as to
cheating or the dishonest intention of the appellants in retaining the
money in order to have wrongful gain to themselves or causing
wrongful loss to the complainant. Excepting the bald allegations that
the appellants did not make payment to the second respondent and
that the appellants utilised the amounts either by themselves or for
some other work, there is no iota of allegation as to the dishonest
intention in misappropriating the property. To make out a case of
criminal breach of trust, it is not sufficient to show that money has
been retained by the appellants. It must also be shown that the
appellants dishonestly disposed of the same in some way or
dishonestly retained the same. The mere fact that the appellants did
not pay the money to the complainant does not amount to criminal
breach of trust." (Emphasis supplied)
that to make out a case of criminal breach of trust, it is not sufficient to
show that property has been retained by the accused persons but must also has
to be shown that the accused persons dishonestly disposed of the same in some
way or dishonestly retained the same and the mere fact that the accused did
not pay money to the complainant does not amount to criminal breach of trust.
8. Now, coming to the facts of this case, undisputedly the petitioner was a
borrower of the complainant- Bank for about four years and he defaulted
apparently after satisfactorily having his loan facility with the complainant-
Bank for about four years. Assuming for the sake of arguments that the
petitioner had the intention to deceive the complainant- Bank since the
beginning it is highly unlikely that he would have waited for four years to
default in making repayment of the loan amount.
9. The petitioner in paragraph-14 of the instant Cr.M.P., in categorical terms
has mentioned that the petitioner has never changed his mobile number and
the same is still active which remains undisputed. There is no allegation against
the petitioner of having dishonestly disposing of the loan availed by him in
some way or dishonestly retaining the same.
10. Under such circumstances, this Court is of the considered view, even
though the entire allegation against the petitioner made in the complaint which
has been treated as written report of the F.I.R., is treated to be true in its
entirety, still neither the offence punishable under Section 406 nor the offence
punishable under Section 420 of the Indian Penal Code is made out against the
petitioner, hence, the continuation of this criminal proceeding will amount to
abuse of process of law and this is a fit case where the F.I.R. of Kadma P.S. Case
No.147 of 2022 arising out of Complaint Case No.418 of 2021 along with entire
criminal proceedings of the said case which is now pending before the learned
S.D.J.M., Jamshedpur, as prayed for by the petitioner, be quashed and set aside.
11. Accordingly, the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of
Complaint Case No.418 of 2021 along with entire criminal proceedings of the
said case which is now pending before the learned S.D.J.M., Jamshedpur, as
prayed for by the petitioner, is quashed and set aside.
12. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 10th of January, 2024
AFR/ Animesh
