Jharkhand High Court
Sabita Motilal Aged About 36 Years vs The State Of Jharkhand on 12 June, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2099 of 2021
1. Sabita Motilal aged about 36 years, w/o late Ashok Kumar Motilal
2. Rahul Kumar Motilal, aged about 39 years, s/o late Ashok Kumar
Motilal
both residents of ¼ Netai Nagar, Near Metro Cash and Carry E.M.
Byepass, Jai Ma Karuna MI Tower, Kolkata-700099, P.S.-Purba
Jadavpur, Dist.-24 Pargana (S)
.... Petitioners
Versus
1. The State of Jharkhand
2. Raj Kumar Gupta, son of late Rajendra Prasad Gupta, resident of
Badam Bazar, P.O. & P.S.-Sadar, Dist.-Hazaribagh
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Pratik Sen, Advocate
For the State : Mr. Deepankar, AC to GA III
: Mr. Manoj Kumar, GA III
For O.P. No.2 : Mr. Arun Kumar, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to
quash the entire criminal proceeding in connection with Sadar P.S.
Case No. 236 of 2018, corresponding to G.R. No.1147 of 2018
including the order dated 19.03.2021 passed by the learned Chief
Judicial Magistrate, Hazaribagh by which cognizance has been taken
by the learned Chief Judicial Magistrate, Hazaribagh upon
submission of the charge sheet.
3. The brief fact of the case is that the informant entered into an
agreement for sale of a property with the husband of the petitioner
no.1 who is also the father of the petitioner no.2 and the petitioners
are not parties to the said agreement but they have signed the said
agreement in capacity of the witnesses of the said agreement. It is
alleged that the husband of the petitioner no.1 namely Ashok Kumar
Motilal who is also the father of the petitioner no.2 died after about a
year of execution of the agreement for sale but did not execute the
sale deed and the petitioners later on demanded Rs.20,00,000/- and
though Rs.10,00,000/- has been paid to the petitioner no.2 through
bank transaction and another Rs.10,00,000/- by way of cash, the
petitioner no.2 did not execute the sale deed as promised by his
father.
4. It is submitted by the learned counsel for the petitioners that the
allegations against the petitioners are false. It is next submitted by
the learned counsel for the petitioners that the informant has
suppressed the material facts that the informant filed Title Suit No.
87 of 2017 prior to lodging of this FIR in the court of Civil Judge,
Senior Division-I, Hazaribagh with a prayer for specific performance
of contract entered into between him and the said Ashok Kumar
Motilal and during the pendency of the said suit; by suppressing the
material facts they have instituted this false case only for wreaking
vengeance and pressurizing the petitioners not to contest Title Suit
No. 87 of 2017, in which the petitioners are the defendants. It is
further submitted by the learned counsel for the petitioners that the
informant has suppressed the material fact that Ashok Kumar
Motilal executed a general power of attorney in favour of the son of
the informant vesting power upon the son of the informant to
execute the sale deed in respect of the land in question in favour of
the informant and this fact has also been suppressed by the
informant in the FIR by not specifically mentioning the same though
a copy of the general power of attorney was annexed with the FIR, a
copy of which has been kept at page no. 44 of the brief. It is next
submitted by the learned counsel for the petitioners that charge sheet
has been submitted alleging commission of the offences only under
Sections 406 and 420 of Indian Penal Code but though neither of the
offences is made out still the learned Chief Judicial Magistrate,
Hazaribagh has taken cognizance of the said offences vide order
dated 19.03.2021.
5. Relying upon the judgment of Hon'ble Supreme Court of India in
the case of Prof. R.K. Vijayasarathy & Anr. vs. Sudha Seetharam &
Anr. reported in (2019) 16 SCC 739, paragraph no.29 of which reads
as under:-
"29. In the present case, the son of the appellants has
instituted a civil suit for the recovery of money against the
first respondent. The suit is pending. The first respondent has
filed the complaint against the appellants six years after the
date of the alleged transaction and nearly three years from the
filing of the suit. The averments in the complaint, read on its
face, do not disclose the ingredients necessary to constitute
offences under the Penal Code. An attempt has been made by
the first respondent to cloak a civil dispute with a criminal
nature despite the absence of the ingredients necessary to
constitute a criminal offence. The complaint filed by the first
respondent against the appellants constitutes an abuse of
process of court and is liable to be quashed."
It is submitted by the learned counsel for the petitioners that
suppression of filing of the civil suit is without doubt an attempt
made by the informant to cloak a civil dispute with a case of criminal
nature despite the absence of the ingredients necessary to constitute
the criminal offence.
6. Learned counsel for the petitioners next relies upon the judgment
of Hon'ble Supreme Court of India in the case of Dalip Kaur & Anr.
vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696, paragraph
no. 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] )"
and submits that as the dispute between the parties is essentially a
civil dispute resulting through alleged breach of contract on the part
of the father of the petitioner no.2 and husband of the petitioner no.1
and subsequent to his death with the petitioners. Hence, neither the
offences punishable under Section 420 nor the offence punishable
under Section 406 of Indian Penal Code is made out. Therefore, it is
submitted that the prayer as made in this criminal miscellaneous
petition be allowed.
7. Learned counsel for the State and the learned counsel for the
opposite party no.2 on the other hand opposes the prayer to quash
the entire criminal proceeding and submits that though the
agreement was entered into by and between the informant and
Ashok Kumar Motilal who is the father of the petitioner no.2 and
who is the husband of the petitioner no.1 but the petitioner no.2
having taken Rs. 20,00,000/- cannot be absolved of the liability to
pay the same and as the same has been done by way of cheating as is
evident from the conduct of the petitioners as in the anticipatory bail
application before this Court, the petitioners undertook to deposit
Rs.70,00,000/- but still did not deposit the same and never appeared
before the trial court rather they filed this criminal miscellaneous
petition for quashing the entire criminal proceeding. Hence, it is
submitted that this criminal miscellaneous petition being without
any merit be dismissed.
8. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that as has been held by 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 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.
9. Now coming to the facts of the case, there is no allegation against
the petitioners that the petitioners played any deception at the very
inception as they themselves were not even parties to the agreement
for sale entered into between the informant and Ashok Kumar
Motilal. Thus, under such circumstances, this Court is of the
considered view that even if the entire allegation made against the
petitioners are considered to be true still the offence punishable
under Section 420 of Indian Penal Code is not made out.
10. It is also a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of Binod Kumar & Others vs.
State of Bihar & Another 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 money has been retained by the accused
persons. It must also be shown that the accused persons dishonestly
disposed of the same in some way or dishonestly retained the same.
11. Now coming to the facts of the case, there is no allegation of
entrustment of any money against the petitioner no.1. The advance
amount has alleged to have been taken by Ashok Kumar Motilal
who is no more alive.
12. As already indicated above, the petitioners are not the parties to
the agreement. There is no allegation of any dishonest
misappropriation of the property. There is no explanation as even
though admittedly Ashok Kumar Motilal executed a general power
of attorney empowering the son of the informant to execute sale
deed in favour of the informant on his behalf, in terms of the said
agreement entered into between the parties; why the son of the
informant did not execute the sale deed in exercise of such power.
13. Under such circumstances, this Court is of the considered view that
even if the entire allegation made against the petitioners are
considered to be true still the offence punishable under Section 406
of Indian Penal Code is not made out.
14. In view of the discussions made above, since neither of the offences
of which cognizance has been taken against the petitioners is made
out against them, hence, this Court is of the considered view that
continuation of the criminal proceeding will amount to abuse of
process of law and this is a fit case where the entire criminal
proceeding in connection with Sadar P.S. Case No. 236 of 2018,
corresponding to G.R. No.1147 of 2018 including the order dated
19.03.2021 passed by the learned Chief Judicial Magistrate,
Hazaribagh be quashed and set aside.
15. Accordingly, the entire criminal proceeding in connection with
Sadar P.S. Case No. 236 of 2018, corresponding to G.R. No.1147 of
2018 including the order dated 19.03.2021 passed by the learned
Chief Judicial Magistrate, Hazaribagh is quashed and set aside.
16. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 12th June, 2024
AFR/Sonu-Gunjan/-
