Jharkhand High Court
Sunil Singh @ Sunil Kumar Singh Aged ... vs The State Of Jharkhand on 1 March, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.2241 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2241 of 2021
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1. Sunil Singh @ Sunil Kumar Singh aged about 52 years son of Late
Satyanarayan Singh, as per FIR Resident of Qtr. No.77/L6, Main
Road, Agrico, P.O.- Agrico, P.S.- Sidgora, Town Jamshedpur,
District- East Singbhum, Jharkhand, however at present residing at
56/D block, Bagun Nagar, Baridih Colony, PO- Baridih, PS- Sidgora
Town Jamshedpur, Dist- East Singhbhum, Jharkhand.
2. Anil Singh @ Anil Kumar Singh, aged about 56 years, son of Late
Satyanarayan Singh, Resident of Qtr. No.77/L6, Main Road, Agrico,
P.O.- Agrico, P.S.- Sidgora, Town Jamshedpur, District- East
Singbhum, Jharkhand.
3. Amit Singh S/o- Anil Singh @ Anil Kumar Singh aged about 29
years, as per FIR Resident of Qtr. No.77/L6, Main Road, Agrico,
P.O.- Agrico, P.S.- Sidgora, Town Jamshedpur, District- East
Singbhum, Jharkhand, however at present residing at house no-135
A, 3rd Floor, J & k Block, Laxminagar Po+Ps- Laxminagar Dist- East
Delhi (Delhi) ... Petitioners
Versus
1. The State of Jharkhand
2. Sanjay Kumar @ Sanjay Kumar Yadav S/o- late Bisheshwar yadav,
permanent r/o- Cable Old DS Flat, Qt no-21 Gomuri, PS- Golmuri
Town Jamshedpur Dist- Singhbhum East.
... Opposite Parties
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For the Petitioners : Mr. Krishna Murari, Advocate
For the State : Ms. Priya Shrestha, Spl. P.P.
For the O.P. No.2 : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. Though notice has validly been served upon the opposite party No.2, yet
no one turns up on behalf of the opposite party No.2 in spite of repeated calls.
3. 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 and set aside the First Information Report and the entire
criminal proceedings of Golmuri P.S. Case No.24 of 2016 corresponding to G.R.
No.405 of 2016 which has been registered upon the complaint filed by the
complainant/opposite party No.2 vide C1 Case No.3050 of 2015 being
forwarded to police under Section 156 (3) of Cr.P.C. vide order dated 25.01.2016
even though the same has not been supported by the affidavit of the
complainant/opposite party No.2.
4. The allegation made in the complaint is that the petitioner No.1 used to
take money from the complainant who is a well-settled businessman. The
petitioner No.1 in due course of business had availed some loan after
acknowledging receipt of the loan amount and after calculation, the petitioner
No.1 admitted that he shall return balance amount of Rs.10,00,000/- to the
complainant in four installments each of Rs.2,50,000/- and undertook to pay
the first installment in July 2015 and other installments thereafter but did not
return the amount and the office of the petitioner No.1 is no longer existing in
the place where it earlier used to exist and in place of that one "Archi Dental
Enterprises" office was running. The petitioner No.1 did not pay single amount
of the second installment and on 20.12.2015 at about 6:30 pm when the
complainant was standing near Sona Maidan he could see three of the accused
persons were passing by that side. The complainant and other persons stopped
them. The petitioner No.2 abused the complainant in filthy language and the
petitioner No.3 attacked the complainant but the complainant escaped. The
petitioner No.3 snatched the gold chain worth Rs.26,000/- of the complainant
and the petitioner No.1 threatened him.
5. Learned counsel for the petitioner relies upon the judgment of this Court
in the case of Rashmi Jaiswal @ Rashmi Purayar @ Bulbul & Others vs. The
State of Jharkhand & Another dated 11th of April, 2023 passed in Cr.M.P.
No.1047 of 2021 wherein this Court in the facts and circumstances of that case
where the complaint was referred to police by the learned Magistrate, but there
was no compliance of Section 154 of Cr.P.C., as there was no averment nor any
documents attached with the complaint to suggest that the complainant went
to Superintendent of Police nor is there any document to suggest that the
complainant ever lodged any F.I.R. before any Officer-in-Charge of any police
station, in the facts of that case as there was absolutely no allegation against the
petitioners of being involved in the alleged offence punishable under Sections
406, 420 of the Indian Penal Code nor was there any allegation of direct
entrustment of money to the petitioner No.3 of that case, this Court quashed
the entire criminal proceedings.
6. Learned counsel for the petitioner next submits that as mentioned in
paragraph-3 of the complaint itself; it is the admitted case of the complainant
that the petitioner No.1 used to take money from the complainant for his
business purpose and this is not the first time that he allegedly took money,
hence, in the absence of any allegation against the petitioners that the
petitioners have any intention to deceive the complainant since the beginning
or that the petitioners committed dishonest misappropriation of the entrusted
property, the First Information Report and the entire criminal proceedings of
Golmuri P.S. Case No.24 of 2016 corresponding to G.R. No.405 of 2016 be
quashed and set aside.
7. Learned Spl.P.P. appearing for the State on the other hand vehemently
opposes the prayer of the petitioner to quash and set aside the First
Information Report and the entire criminal proceedings of Golmuri P.S. Case
No.24 of 2016 corresponding to G.R. No.405 of 2016 but fairly submits that the
complaint has not been supported by affidavit or any document to show that
the complainant approached any police officer. It is further submitted that as
besides committing criminal breach of trust and cheating as the complainant
also was involved in an offence of 20.12.2015; when the petitioners committed
theft of gold chain besides criminally intimidating the complainant, hence, the
offences punishable under Sections 379, 506, 504, 34 of the Indian Penal Code is
made out against the petitioners. Hence, it is submitted that this Cr.M.P., being
without any merit, be dismissed.
8. 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 this is an admitted case of the complainant himself as mentioned in
paragraph-3 of the complaint, which though was not supported by affidavit
nor is there any averment that the complainant ever approached the
Superintendent of Police nor is there any document annexed with the
complaint to show that the complainant ever lodged any F.I.R.; on the
complaint being referred to police by the learned Magistrate under section
156(3) of the Code of Criminal Procedure, the F.I.R. of Golmuri P.S. Case No.24
of 2016 corresponding to G.R. No.405 of 2016 has been registered.
9. It is pertinent to refer to paragraph-31 of the judgment of the Hon'ble
Supreme Court of India passed in the case of Priyanka Srivastava and Another
vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287 which reads
as under:-
"31. We have already indicated that there has to be prior
applications under Sections 154(1) and 154(3) while filing a petition
under Section 156(3). Both the aspects should be clearly spelt out in the
application and necessary documents to that effect shall be filed. The
warrant for giving a direction that an application under Section 156(3)
be supported by an affidavit is so that the person making the application
should be conscious and also endeavour to see that no false affidavit is
made. It is because once an affidavit is found to be false, he will be liable
for prosecution in accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section 156(3). That apart,
we have already stated that the veracity of the same can also be verified
by the learned Magistrate, regard being had to the nature of allegations
of the case. We are compelled to say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family disputes, commercial offences,
medical negligence cases, corruption cases and the cases where there is
abnormal delay/laches in initiating criminal prosecution, as are
illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524]
are being filed. That apart, the learned Magistrate would also be aware of
the delay in lodging of the FIR." (Emphasis supplied)
wherein the Hon'ble Supreme Court of India has observed that the
information regarding commission of cognizable offence is to be given to the
Officer-In-Charge of the police station and Section 154 (3) of the Cr.P.C. which
provides that a person aggrieved by a refusal on the part of an Officer-In-
Charge of a police station to record the information referred to in Section
154 may send the substance of such information in writing and by post to the
Superintendent of Police concerned before filing a petition under Section 156
(3) of Cr.P.C. Further, it was also observed that an application under Section
156 (3) of Cr.P.C. is to be supported by an affidavit.
10. Now, coming to the facts of the case, there is no material in the complaint
to suggest that on being aggrieved by the refusal on the part of the Officer-In-
Charge of a police station to record the information referred to under Section
156 (3) of Cr.P.C. the complainant ever sent the substance of the information in
writing and by post to the Superintendent of Police concerned nor is there any
document annexed with the complaint to suggest that the complainant
submitted any First Information Report to the Officer-In-Charge of the
concerned police station. It is undisputed that the complaint was not supported
by the affidavit though the prayer in the complaint was to institute the present
case under Section 156 (3) of the Cr.P.C. Besides, paragraph-3 of the complaint,
the copy of the agreement allegedly entered into between the petitioner No.1
and the complainant, shows that there were series of giving and taking of
money between the complainant and the petitioner No.1 and after calculation
of the money taken, a total sum of Rs.10,00,000/- of the principal amount is
due and payable by the complainant which goes to show that there was a
business transaction of giving and taking money between the parties. There is
no allegation against the petitioners of having any intention to deceive the
complainant since the beginning of the transaction between them. It is a settled
principle of law as has been held by the Hon'ble Supreme Court of India in the
case of Sarabjit Kaur vs. The State of Punjab & Another reported in (2023) 5
SCC 360 paragraph-13 of which reads as under:-
"13. A breach of contract does not give rise to criminal prosecution
for cheating unless fraudulent or dishonest intention is shown right at
the beginning of the transaction. Merely on the allegation of failure to
keep up promise will not be enough to initiate criminal proceedings.
From the facts available on record, it is evident that Respondent 2 had
improved his case ever since the first complaint was filed in which there
were no allegations against the appellant rather it was only against the
property dealers which was in subsequent complaints that the name of
the appellant was mentioned. On the first complaint, the only request
was for return of the amount paid by Respondent 2. When the offence
was made out on the basis of the first complaint, the second complaint
was filed with improved version making allegations against the appellant
as well which was not there in the earlier complaint. The entire idea
seems to be to convert a civil dispute into criminal and put pressure on
the appellant for return of the amount allegedly paid. The criminal courts
are not meant to be used for settling scores or pressurise parties to settle
civil disputes. Wherever ingredients of criminal offences are made out,
criminal courts have to take cognizance. The complaint in question on
the basis of which FIR was registered was filed nearly three years after
the last date fixed for registration of the sale deed. Allowing the
proceedings to continue would be an abuse of process of the court."
that a breach of contract does not give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is shown right at the
beginning of the transaction. Mere, the allegation of failure to keep up promise
will not be enough to initiate criminal proceedings.
11. To the same effect, is the judgment of the Hon'ble Supreme Court of
India in the case of Uma Shankar Gopalika vs. State of Bihar & Another
reported in (2005) 10 SCC 336, paragraph No.6 of which reads as under :-
6. Xxxxx 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)
12. It is also a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of Vijay Kumar Ghai & Others vs. State of
West Bengal & Others reported in (2022) 7 SCC 124 paragraph-38 of which
reads as under:-
"38. There can be no doubt that a mere breach of contract is not in itself a
criminal offence and gives rise to the civil liability of damages. However, as
held by this Court in Hridaya Ranjan Prasad Verma v. State of
Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168
: 2000 SCC (Cri) 786] , the distinction between mere breach of contract
and cheating, which is criminal offence, is a fine one. While breach of
contract cannot give rise to criminal prosecution for cheating, fraudulent
or dishonest intention is the basis of the offence of cheating. In the case at
hand, complaint filed by Respondent 2 does not disclose dishonest or
fraudulent intention of the appellants." (Emphasis supplied)
that there can be no doubt that a mere breach of contract is not in itself a
criminal offence and gives rise to the civil liability of damages. The distinction
between mere breach of contract and cheating is existence of fraudulent or
dishonest intention besides the breach of contract.
13. 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 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 accused persons did not
pay the money to the complainant does not amount to criminal breach of trust.
14. As already indicated above, there is no material in the record to suggest
that the petitioners have committed any dishonest misappropriation of the
entrusted property or had any intention to deceive the complainant since the
beginning of the transaction between them. So far as the occurrence on
20.12.2015 is concerned, it is apparent that the said allegation has been made to
institute a criminal case for wrecking vengeance as it is highly unlikely that the
petitioners who were admittedly entered into the transaction of giving and
taking money with the complainant, will assault him and snatch away his gold
chain on the complainant merely asking them to pay back his dues. Hence,
considering the aforesaid facts, this Court is of the considered view that even if
the allegations made against the petitioners are considered to be true in its
entirety still the offence punishable under Sections either 420 or 406 are not
made out against the petitioners.
15. Besides the above, the complaint though has been filed with a prayer to
direct the Office-In-charge of Golmuri Police Station to institute the case under
Section 156 (3) of Cr.P.C, it has not been supported by affidavit nor is there any
averment to the effect that the petitioners sent the copy of the substance in
writing or post to the Superintendent of Police concerned nor is there any
document to the effect that the complainant lodged the information with the
police, has been annexed.
16. Under such circumstances, this Court is of the considered view that the
continuation of this criminal proceeding against the petitioners, will amount to
abuse of process of law and for the ends of justice, this is a fit case where the
First Information Report and the entire criminal proceedings of Golmuri P.S.
Case No.24 of 2016 corresponding to G.R. No.405 of 2016, as prayed for by the
petitioners, be quashed and set aside.
17. Accordingly, the First Information Report and the entire criminal
proceedings of Golmuri P.S. Case No.24 of 2016 corresponding to G.R. No.405
of 2016 is quashed and set aside against the petitioners.
18. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 01st of March, 2024
AFR/ Animesh
