Jharkhand High Court
Dilip Kumar (Aged Near About 50 Years) vs The State Of Jharkhand on 29 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No. 847 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 847 of 2021
Dilip Kumar (Aged near about 50 years), S/o Late Gobardhan
Singh, resident of village- Parbatta, P.O. & P.S.- Barkatha,
District- Hazaribag, Jharkhand, Permanent resident of Kallali
Road, Tilaya, P.O,. P.S. & District-Koderma, Jharkhand
........Petitioner
Versus
1.
The State of Jharkhand
2. Dular Chandra Modi, (Aged near about 76 years) s/o, Late
Jai Ram Modi, resident of Bagodar, P.O. & P.S. Bagodar, Dist.-
Giridih, Jharkhand ..... Opposite Parties
For the Petitioner : Mr. Prakash Chandra, Adv.
Mr. Virendra Kumar, Adv.
Ms. Neetu Verma, Adv.
For the State : Mr. Pankaj Kr. Mishra, Addl.PP
For the O.P. No. 2 : None
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties. Though notice has validly been served
upon the opp. party no. 2 but no one turns up on behalf of the opp.
party no. 2 in spite of repeated calls.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
for quashing the entire criminal proceeding arising out of Protest
-cum-Complaint Case No. 746 of 2019 registered for the offences
punishable under Section 323, 504, 406, 420 of the IPC, pending in
the court of learned JMFC, Hazaribag.
3. The brief facts of the case is that complainant gave Rs. 2,30,000/-
to the petitioner for purchase of land without having any
documentary proof of such payment but the petitioner did not
return money nor executed the sale deed in respect of which, he
had received money. The complainant first filed a written report,
basing upon the same, Barkatha P.S. case no. 98 of 2018 was
registered corresponding to G.R. Case no. 1602 of 2018 in which ,
the police submitted a Final Form for the lack of evidence and did
not send the petitioner for trial. Thereafter, the complainant filed a
protest cum complaint petition no. 746 of 2019 and learned JMFC,
Hazaribag, taking into consideration the complaint, the
statement on solemn affirmation, and the statement of the
enquiry witness, vide order dated 13.01.2020, the learned
Magistrate found the prima facie offence punishable under Section
504, 420, and 406 of IPC against the petitioner.
4. Learned counsel for the petitioner submits that the only grievance
of the informant-complainant against the petitioner is that the
informant-complainant paid Rs. 2,30,000/- for the purchase of the
land which money the petitioner is not returning nor executing
the sale deed. It is then submitted that the allegation against the
petitioner is false. It is further submitted that the petitioner has
not taken any money and the complainant has falsely alleged that
he has paid Rs. 2,30,000/- only to harass the petitioner. It is next
submitted that the complainant in his statement under Solemn
Affirmation, in no uncertain manner, has stated that he does not
have any proof of payment of money to the petitioner and the
enquiry witnesses, also could not say about exact money allegedly
paid by the complainant to the petitioner. It is next submitted that
the petitioner has no criminal antecedent and in fact, this is a case,
where there is no evidence against the petitioner, hence,
continuation of the criminal proceeding will amount of abuse of
process of law, hence, it submitted that entire criminal proceeding
arising out of Protest-cum-Complaint Case No. 746 of 2019, be
quashed and set aside.
5. Learned Addl.PP on the other hand, vehemently, opposes the
prayer for quashing the entire criminal proceeding arising out of
Protest -cum-Complaint Case No. 746 of 2019 and submits that
there is direct and specific allegation against the petitioner of
having cheated and committing criminal breach of trust by taking
Rs. 2,30,000/- but not executing the sale deed in favour of the
complainant by the petitioner. It is further submitted that the
perusal of the allegations made in the protest cum- complaint
petition, as well as the statement on Solemn Affirmation of the
complainant and the statement of the enquiry witnesses, it is
evident that the petitioner committed the offences punishable
under Section 504, 420 and 406 of IPC, hence, it is submitted that
this criminal miscellaneous petition, being without any merit be
dismissed.
6. Having heard the submissions made at the Bar and after 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 Uma Shankar
Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336,
paragraph no. 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)"
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.
7. Now coming to the facts of the case, there is no allegation against
the petitioner that the petitioner played deception at the very
inception, nor there is any documentary evidence in the record to
show the entrustment of any money to the petitioner. Under such
circumstances, this court is of the considered view that the
material in the record is inadequate to constitute the offence
punishable under Section 420 of IPC against the petitioner.
8. So far as the offence punishable under Section 406 of IPC is
concerned, in order to establish the offence punishable under
Section 406 of Indian Penal Code the following ingredients are to
be established :-
(i) Mens rea
(ii) There must be dishonest misappropriation or conversion to one's own
use, or use in violation of a legal direction or of any legal contract
(iii) The accused dishonestly used or disposed of the property
9. Now coming to the facts of the case, as has rightly been
concluded by the police during the investigation of the case, that
the complainant himself does not have any documentary proof for
entrustment of alleged money to the petitioner, which is highly
unlikely in any case of huge amount of money transaction for
purchase of a land and as there is no allegation of dishonest
mis-appropriation of the property by the petitioner, hence, this
court is of the considered view that the materials available in the
record, is inadequate to constitute the offence punishable under
Section 406 of IPC as well.
10. So far as the offence punishable under Section 504 of IPC is
concerned, it is a settled principle of law as has been held by the
Hon'ble Supreme Court of India in the case of Vikram Johar v.
State of Uttar Pradesh and another reported in (2019) 14 SCC
207, para 24 of which reads as under:-
"24. Now, we revert back to the allegations in the complaint against the
appellant. The allegation is that the appellant with two or three other
unknown persons, one of whom was holding a revolver, came to the
complainant's house and abused him in filthy language and attempted to
assault him and when some neighbours arrived there the appellant and the
other persons accompanying him fled the spot. The above allegation taking
on its face value does not satisfy the ingredients of Sections 504 and 506 as
has been enumerated by this Court in the above two judgments. The
intentional insult must be of such a degree that should provoke a person to
break the public peace or to commit any other offence. The mere allegation
that the appellant came and abused the complainant does not satisfy the
ingredients as laid down in para 13 of the judgment of this Court in Fiona
Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 :
(2014) 1 SCC (Cri) 715] ."
that mere allegation that the accused came and abused the
complainant does not satisfy the ingredients of the offence
punishable under Section 504 of IPC, hence, in the absence of any
allegation that the provocation was given intending or knowing it
to be likely that the complainant will cause him to break public
peace or to commit any other offence, this court has no hesitation
in holding that the allegations made in the FIR are also inadequate
to constitute the offence punishable under Section 504 of IPC.
11. In view of the discussions made above, this court has no
hesitation in holding that, as no offence for which, the FIR has
been registered is made out, even if the allegations made in the
FIR is stated to be true in its entirety; hence the continuation of the
criminal proceeding against the petitioner will amount to abuse of
process of law. Therefore, this is a fit case, where the entire
criminal proceeding arising out of Protest -cum-Complaint Case
No. 746 of 2019 be quashed and set aside.
12. Accordingly, the entire criminal proceeding arising out of Protest
-cum-Complaint Case No. 746 of 2019 is quashed and set aside.
13. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 29th January, 2024
Smita /AFR
