Jharkhand High Court
Mahendra Pandit vs The State Of Jharkhand on 3 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2525 of 2022
Mahendra Pandit, aged about 39 years, S/o Bandhan Pandit, R/o -
Village Baghanal, P.O. -Keshkari, P.S. -Sariya, District -Giridih.
.... Petitioner
Versus
1. The State of Jharkhand
2. Pir Mohammad, S/o Late Noor Mohammad, R/o -Village Keshwari,
P.S. -Sariya, District -Giridih. .... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Tarun Kumar No.1, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For the O.P. No.2 : Mr. Ayub Ansari, 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 of Saria P.S. Case No. 27
of 2021, pending in the court of C.J.M. at Giridih.
3. The brief fact of the case is that the petitioner and the opposite
party no.2 were both working in the Indian Railways and both
were friends. The petitioner took a friendly loan of Rs.4,00,000/-
in the year 2013 but did not return the same, hence for the first
time on 07.02.2021, the opposite party no.2-informant lodged the
F.I.R. without having any document to show any entrustment of
property to the petitioner. On the basis of the same Saria P.S. Case
No. 27 of 2021 was registered and the investigation of the case is
going on.
4. It is submitted by the learned counsel for the petitioner that even
if the allegations made in the F.I.R. are considered to be true in
their entirety, still the offence punishable under Section 420 of the
Indian Penal Code is not made out against the petitioner as there
is no allegation against the petitioner of having any intention to
deceive the opposite party no.2-informant since the beginning of
the transaction between them and more so there is absolutely no
document to show any entrustment to the petitioner. It is next
submitted by the learned counsel for the petitioner that the
annexure-1 to the counter affidavit; purported to be an
acknowledgement of the said loan taken by the petitioner, shows
that the same is in relation to a transaction which took place in the
year 2017 whereas in the F.I.R., it has categorically been
mentioned that the money was taken by the petitioner on
11.02.2013. Hence, the document annexed with the counter
affidavit even if considered to be true, cannot be said to be a
document in respect of the transaction which took place on
11.02.2013 because the same relates to a transaction which took
place in the year 2017 i.e. about four years after the alleged date of
occurrence for which the F.I.R. has been lodged. Hence, it is
submitted that the entire criminal proceeding of Saria P.S. Case
No. 27 of 2021, pending in the court of C.J.M. at Giridih be
quashed and set aside.
5. The learned Addl. P.P. and the learned counsel for the opposite
party no.2 on the other hand vehemently opposes the prayer for
quashing the entire criminal proceeding of Saria P.S. Case No. 27
of 2021, pending in the court of C.J.M. at Giridih. It is submitted
by the learned counsel for the opposite party no.2 that besides
committing the offence of cheating and criminal breach of trust,
the petitioner also criminally intimidated the opposite party no.2.
Hence, it is submitted that the materials in the record are
sufficient to constitute the offence for which the F.I.R. has been
registered. 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 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 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 would not amount to cheating.
7. Now coming to the facts of the case, there is no allegation
against the petitioner of deceiving the informant since the
beginning. Hence, this Court is of the considered view that even if
the allegations against the petitioner are considered to be true in
its entirety, still the offence punishable under Section 420 of the
Indian Penal Code is not made out.
8. So far as the offence punishable under Section 406 of the Indian
Penal Code 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 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 be shown that the accused persons
dishonestly disposed of the same in some way or dishonestly
retained the same.
9. Now coming to the facts of the case, there is absolutely no
document to show any entrustment of property to the petitioner.
There is no allegation that the petitioner has dishonestly
misappropriated the property. The document annexed with the
counter affidavit claiming the same to be an acknowledgement of
the loan by the petitioner; shows that the same relates to the
transaction taking place in the year 2017 whereas the allegation
made in the F.I.R. of the petitioner taking the friendly loan is on
11.02.2013. Under such circumstances, the allegation is at best
non-repayment of friendly loan taken by the petitioner for which
there is no documentary proof and in the absence of any
allegation of dishonestly misappropriation of the same by the
petitioner; in the considered opinion of this Court, the same is not
sufficient to constitute the offence punishable under Section 406 of
the Indian Penal Code.
10. So far as the offence punishable under Section 504 and 506 of the
Indian Penal Code are 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 vs. State of Uttar Pradesh & Anr. reported in
(2019) 14 SCC 207, paragraph nos. 24 and 25 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] .
25. Now, reverting back to Section 506, which is offence of
criminal intimidation, the principles laid down by Fiona
Shrikhande [Fiona Shrikhande v. State of Maharashtra,
(2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] has also to be
applied when question of finding out as to whether the
ingredients of offence are made or not. Here, the only
allegation is that the appellant abused the complainant.
For proving an offence under Section 506 IPC, what are
the ingredients which have to be proved by the
prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th
Edn. with regard to proof of offence states the following:
"... The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his
person, reputation or property; or to the person,
reputation or property of someone in whom he was
interested;
(iii) That he did so with intent to cause alarm to that
person; or to cause that person to do any act which he
was not legally bound to do, or omit to do any act
which he was legally entitled to do as a means of
avoiding the execution of such threat."
A plain reading of the allegations in the complaint does
not satisfy all the ingredients as noticed above."
(Emphasis supplied)
That in order to constitute the offence punishable under Section
504 of the Indian Penal Code, the intentional insult must be of
such a decree that should provoke the person to break public
peace or to commit any other offence. There is no allegation
against the petitioner of intentionally insulting the informant or
anyone else in such a manner and degree that provoked any
person to break public peace or to commit any offence. Hence, in
the considered opinion of this Court, the allegations do not
constitute the offence punishable under Section 504 of the Indian
Penal Code.
11. So far as the offence punishable under Section 506 of the Indian
Penal Code is concerned, as already indicated above in the said
Judgment, the threat must be done with intent to cause alarm to
that person or to cause that person to do any act which he was not
legally bound to do, or omit to do any act which he was legally
entitled to do; as a means of avoiding the execution of such threat.
12. Now coming to the facts of the case, in the absence of any exact
verbatim of any threatening given by the petitioner, this Court is
of the considered view that even if the allegations made in the
F.I.R. are considered to be true, still the offence punishable under
Section 506 of the Indian Penal Code is not made out.
13. In view of the discussions made above, this Court is of the
considered view that even if the contents of the F.I.R. are treated
to be true in their entirety, still none of the offence for which the
F.I.R. has been registered is made out, therefore, continuation of
this criminal proceeding will amount to abuse of process of law.
Hence, this is a fit case where the entire criminal proceeding of
Saria P.S. Case No. 27 of 2021, pending in the court of C.J.M. at
Giridih be quashed and set aside.
14. Accordingly, the entire criminal proceeding of Saria P.S. Case
No. 27 of 2021, pending in the court of C.J.M. at Giridih is quashed
and set aside.
15. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 3rd May, 2024
AFR/Sonu-Gunjan/-
