Jharkhand High Court

Punit Kumar Poddar @ Punit Poddar 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. 172 of 2022


            Punit Kumar Poddar @ Punit Poddar, aged about 54 years, son of late
            Prem Kumar Poddar, resident of Uma Shanti Apartment, Kanke Road,
            P.O.-Kanke, P.S.-Gonda, Dist.-Ranchi, Director, Premsons Motor
            Udyog Pvt. Ltd. Nexa, Main Road, Kadru Diversion in front of Hotel
            Radission Blue, Ranchi
                                                    ....               Petitioner


                                        Versus

            1. The State of Jharkhand
            2. Arvind Prasad, son of late Devi Charan Sah, resident of Ward
                 No.12, Purani Bazar, Garhwa, P.O. & P.S.-Garhwa, Dist.-Garhwa
                                                    ....                  Opp. Parties

                                        PRESENT

                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Mr. Sidhartha Roy, Advocate : Mr. Shashi Bhushan Sah, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P. For O.P. No.2 : None .....

By the Court:-

1. 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 Cr.P.C. with a prayer to

quash the entire criminal proceeding in connection with Complaint

Case No.155 of 2021 as well as the order taking cognizance dated

25.03.2021 by which the learned Chief Judicial Magistrate, Garhwa

found prima facie case for the offence punishable under Section 406 of

Indian Penal Code.

4. The allegation against the petitioner is that the petitioner is related

to M/s. Premsons Motor Industries Private Limited. On being

approached by the co-accused persons, the complainant became

ready to purchase a car. The complainant transferred Rs.5,000/- as

advance in the account of Premsons Motor and later on, further

transferred money to the Premsons Motor and without showing the

car to the complainant, the registration of the car was made. The

complainant got the car after four days. 15 days after brining the car,

the same became faulty. There were faults in the car 5-6 times. There

was sound in the engine. Bubbles were coming out in the paint.

Sensor was not working and there was difficulty. Premsons Motor

has forcibly taken the vehicle. Premsons Motor gave an old vehicle to

the complainant after making denting and painting of the same. The

co-accused persons told the complainant to sign a form and to

deposit Rs.3,50,000/- and told him that after that only, the car will be

repaired and told the complainant that unless the money is paid, the

car will not be repaired and if the complainant indulges in making

the complaint then he will be shot dead by hiring shooters.

5. Learned Chief Judicial Magistrate, Garhwa after taking into

consideration the materials in the record, found prima facie case for

the offence punishable under Section 406 of Indian Penal Code only.

6. Learned counsel for the petitioner by relying upon the judgment of

Hon'ble Supreme Court of India in the case of Deepak Gaba & Ors.

vs. State of Uttar Pradesh & Anr. reported in 2023 LiveLaw (SC) 3 :

Criminal Appeal No. 2328 of 2022, paragraph no.20 of which reads

as under:-

"20. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are: (i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant, (ii) goods supplied were different from the order placed, and (iii) goods lying with, and returned by Respondent 2 complainant have not been accounted for. These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of "insufficient funds"."

submits that even if the allegation made in the complaint,

statement of the complainant on solemn affirmation and the

statement of the inquiry witnesses are stated to be true in its entirety,

still the offence punishable under Section 406 of Indian Penal Code is

not made out against the petitioner.

7. It is next submitted by the learned counsel for the petitioner that

for the selfsame matter, a complaint has been filed in the District

Consumer Forum, Garhwa vide C.C. No. 09 of 2020 hence, the

dispute between the parties is at best a civil dispute but a cloak of

criminal offence has been given to a purely civil dispute. Hence, it is

submitted that the prayer as made in this criminal miscellaneous

petition be allowed.

8. Learned Special Public Prosecutor on the other hand opposes the

prayer for quashing the entire criminal proceeding in connection

with Complaint Case No.155 of 2021 as well as the order taking

cognizance dated 25.03.2021 passed by the learned Chief Judicial

Magistrate, Garhwa and submits that since the petitioner has taken

money and has supplied an old car so the allegations are sufficient to

constitute the offence punishable under Section 406 of Indian Penal

Code. Hence, it is submitted that this criminal miscellaneous petition

being without any merit be dismissed.

9. Having heard the submissions made at the Bar and after going

through the materials in the record, it is pertinent to mention here

that the allegation of entrustment of money is to Premsons Motor but

Premsons Motor has not been arraigned as an accused in this

complaint. There is no allegation of entrustment of any money or

any other property to the petitioner. The only allegation against the

petitioner is that the petitioner is related to Premsons Motor Udyog

Private Limited, Kanke Road, Ranchi.

10. The essential ingredients to constitute the offence punishable under

Section 406 of Indian Penal Code is that :-

(i) Mens rea

(ii) There must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract

as has been held by the Hon'ble Supreme Court of India in the case

of Ram Narayan Vs. CBI reported in (2003) 3 SCC 641.

11. Now coming to the facts of the case, there is no allegation of either

any entrustment or any dishonest misappropriation or conversion to

is its own use or dishonestly using or disposing of the entrusted

property against the petitioner.

12. Under such circumstances, this Court is of the considered view that

even if the entire allegation made against the petitioner are

considered to be true in its entirety, still, the offence punishable

under Section 406 of Indian Penal Code is not made out against the

petitioner. Hence, continuation of the criminal proceeding against

the petitioner will amount to abuse of process of law and this is a fit