Jharkhand High Court
Latika Chari vs The State Of Jharkhand ..... Opposite ... on 31 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No. 1873 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1873 of 2023
1. Latika Chari, wife of Late Ratan Chandra Chari, aged about 80
years, resident of House No. 22- A, Mithu Road, P.O. & P.S.
Nirsa, DistrictDhanbad.
2. Ranjit Chari, son of Late Ratan Chandra Chari, 53 aged about
53 years, resident of House No. 22- A, Mithu Road, P.O. & P.S.
Nirsa, District Dhanbad.
3. Rajesh Chari, son of Late Ratan Chandra Chari, aged about 50
years, resident of House No. 22- A, Mithu Road, P.O. & P.S.
Nirsa, District- Dhanbad.
4. Rina Samanto @Reena Samanta, daughter of Late Ratan
Chandra Chari, aged about 57 years, resident of House No. 22-
A, Mithu Road, P.O. & P.S. Nirsa, District Dhanbad.
........Petitioners
Versus
The State of Jharkhand ..... Opposite Party
For the Petitioners : Mr. Rohitashya Roy @ Rohit Roy, Adv.
For the State : Mr. Bhla Nath Ojha, Addl.PP.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- I.A. No. 258 of 2024
Heard the parties.
Learned counsel for the petitioners submits that this
interlocutory application has been filed with a prayer to
substitute the age of the petitioner no. 2 to 4 as 53, 50 and 57 years
respectively, instead of 80 years, as mentioned in the criminal
miscellaneous petition, in the cause title of the criminal
miscellaneous petition.
Prayer is allowed.
The petitioners are directed to carry out the necessary
substitution as proposed and as allowed by this order; in course
of the day.
This interlocutory application stands disposed of
accordingly.
(Anil Kumar Choudhary, J.)
2 Cr.M.P. No. 1873 of 2023
Cr.M.P. No. 1873 of 2023
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 as well as the order
taking cognizance dated 21.04.2022 in connection with Bank More
P.S. Case No. 199 of 2021 corresponding to G.R Case no-
1131/2022, by which, learned JMFC, Dhanbad; whereby and
whereunder, cognizance has been taken for the offence punishable
under Sections 406, 420 / 34 of the I.P.C., inter alia against the
petitioners.
3. The allegation made against the petitioners is that the informant
entered into a development agreement with the petitioners on
16.11.2017, in respect of the five khattas of land and the petitioner
no. 1 executed power of attorney in favour of the informant. The
informant invested Rs. 50,00,000/- for development and paid
some money towards the personal expenses of the petitioners but
the petitioner adopted a delaying tactics in handing over the
concerned property to the informant. On the basis of the written
report, submitted by the informant, the police registered Bank
More P.S. Case No. 199 of 2021 and took up investigation of the
case and police submitted charge sheet against the petitioners for
having committed the offences punishable under Sections 406, 420
and 34 of IPC and learned JMFC, Dhanbad consequent upon the
same, cognizance has been taken of the offences.
4. Learned counsel for the petitioners by relying upon the judgment
of the Hon'ble supreme court of India in the case of Dalip Kaur &
Ors. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , para
10 of which reads as under:-
"10. The High Court, therefore, should have posed a question as to whether any
act of inducement on the part of the appellant has been raised by the second
respondent and whether the appellant had an intention to cheat him from the
very inception. If the dispute between the parties was essentially a civil
dispute resulting from a breach of contract on the part of the appellants by
non-refunding the amount of advance the same would not constitute an
offence of cheating. Similar is the legal position in respect of an offence of
criminal breach of trust having regard to its definition contained in Section
405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 :
2003 SCC (Cri) 703] )" (emphasis supplied)
submits that dispute between the parties is basically a civil
dispute resulting from the alleged breach of contract on the part
of the petitioner, hence, the offence punishable under Section 406
is not made out and in the absence of any dishonest
misappropriation of any entrusted property by the petitioner, the
offence punishable under Section 420 of IPC is also not made out,
hence the continuation of the criminal proceeding against the
petitioners, will amount to abuse of process of law. It is lastly
submitted that the entire criminal proceeding as well as the order
taking cognizance dated 21.04.2022 in connection with Bank More
P.S. Case No. 199 of 2021 corresponding to G.R Case no-
1131/2022, be quashed and set aside.
5. Learned Addl.PP on the other hand, vehemently, opposes the
prayer for quashing the entire criminal proceeding as well as the
order taking cognizance dated 21.04.2022 in connection with Bank
More P.S. Case No. 199 of 2021 corresponding to G.R Case no-
1131/2022, and submits the allegation made in the FIR and the
materials in the record is sufficient to establish the offence
punishable under Section 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 had played deception at the very
inception and even if the allegation made in the FIR is treated to
be true in its entirety, still the offence punishable under Section
420 of IPC is not made out.
8. So far as the offence punishable under Section 406 of IPC is
concerned, it is a settled principle of law that if the property
entrusted to an accused is used by him, mere retention of that
property would not amount to dishonest misappropriation of the
property as has been held by the Hon'ble Supreme Court of India
in the case of Satish Chandra Ratanlal Shah vs. State of Gujarat
& Anr. reported in (2019) 9 SCC 148, paragraph nos. 11 of which
reads as under:
"11. Having observed the background principles applicable herein, we need to
consider the individual charges against the appellant. Turning to Section
405 read with Section 406 IPC, we observe that the dispute arises out of a
loan transaction between the parties. It falls from the record that Respondent
2 knew the appellant and the attendant circumstances before lending the
loan. Further it is an admitted fact that in order to recover the aforesaid
amount, Respondent 2 had instituted a summary civil suit which is still
pending adjudication. The law clearly recognises a difference between simple
payment/investment of money and entrustment of money or property. A
mere breach of a promise, agreement or contract does not, ipso facto,
constitute the offence of the criminal breach of trust contained in Section 405
IPC without there being a clear case of entrustment.." (Emphasis supplied)"
9. Since, there is no allegation of entrustment of the property to the
petitioners nor there is any allegation of dishonest
misappropriation, hence, the allegation that informant has given
some money for the personal expenses to the petitioners, cannot
be termed as dishonest misappropriation. Thus even if the
allegations are considered to be true in its entirety and the
petitioners have used the money allegedly given by the informant
to them, since the said money was admittedly given to the
petitioners to be utilised by them, hence the money having been
utilized by the petitioners, for which, it was given; the same
cannot be said to constitute the dishonest misappropriation,
which a sine qua non to constitute the offence under Section 406 of
IPC. Accordingly, this court is of the considered view that even if
the entire allegation made in the FIR is considered to be true in its
entirety, still the offence punishable under Section 406 of IPC is
not made out.
10. In view of the discussions made above, this court has no
hesitation in holding that as no offence punishable in law is made
out against the petitioners; even if the allegations made in the FIR
, are considered to be true in its entirety, the continuation of the
criminal proceeding against the petitioners, will amount to abuse
of process of law. Therefore, this is a fit case, where the entire
criminal proceeding as well as the order taking cognizance dated
21.04.2022 in connection with Bank More P.S. Case No. 199 of 2021
corresponding to G.R Case no-1131/2022, by learned JMFC,
Dhanbad, be quashed and set aside.
11. Accordingly, the entire criminal proceeding as well as the order
taking cognizance dated 21.04.2022 in connection with Bank More
P.S. Case No. 199 of 2021 corresponding to G.R Case no-
1131/2022, by learned JMFC, Dhanbad is quashed and set aside.
12. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 31st January, 2024
Smita /AFR
