Jharkhand High Court
Ranjeet Kumar Barnwal vs The State Of Jharkhand on 21 November, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1472 of 2022
1. Ranjeet Kumar Barnwal, aged about 52 years, S/o Ram Saran Lal,
R/o Barnwal Mansion, Shitla Mata Mandir Lane, Main Road Chas,
P.O., P.S. -Chas & District -Bokaro.
2. Vikash Kumar Barnwal, aged about 30 years, S/o Ranjeet Kumar
Barnwal, R/o Barnwal Mansion, Shitla Mata Mandir Lane, Main
Road Chas, P.O., P.S. Chas & District -Bokaro
.... Petitioners
Versus
1. The State of Jharkhand
2. Lav Khedia, aged about 30 years, S/o Binod Kumar Khedia, R/o 38,
Sahu Market, Main Road Chas, Near Government Hospital, P.O, P.S.
Chas & District -Bokaro.
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Ms. Aparajita Bhardwaj, Advocate
: Mr. Chanchal Jain, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
For the O.P. No.2 : Mr. Amritansh Vats, 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
Complaint Case No. 301 of 2022 including the order taking
cognizance dated 06.04.2022, passed by the learned Judicial
Magistrate -1st Class, Bokaro whereby and where under the
learned Magistrate has taken cognizance of the offences
punishable under Section 406/420 of the Indian Penal Code.
3. The allegation against the petitioners is that the petitioners are
the adjacent neighbor of the complainant and there was seepage
in the common boundary wall between the petitioners and the
complainant; apparently because of a prior existing soak pit of the
petitioners and near that some digging of the soil was made by
the complainant, at the time of construction of the boundary wall.
It is alleged that in 2021, the complainant paid Rs.27,000/- to the
petitioners, for which the complainant has no document, for
closing the drain but the petitioners did not do the work and have
misappropriated the said Rs.27,000/-. On the basis of the
complaint, statement of the complainant under solemn
affirmation and statement of the inquiry witnesses, the learned
Magistrate has found prima facie case of the offences punishable
under Section 406/420 of the Indian Penal Code.
4. It is submitted by the learned counsel for the petitioners,
drawing attention of this Court to annexure-5 (page no.55) of the
brief dated 31.01.2022 that there is no reference in the said
agreement of the complainant having paid Rs.27,000/- to the
petitioners. It is next submitted by the learned counsel for the
petitioners that the dispute between the parties is basically a civil
dispute regarding seepage of water in the common boundary wall
from the side of the petitioners to the side of the complainant and
in order to wreak vengeance, a cloak of criminal case has been
given to a purely civil dispute, only to harass the petitioners.
5. The learned counsel for the petitioners relying upon the
Judgment of Hon'ble Supreme Court of India in the case of Vesa
Holdings Pvt. Ltd. & Another Vs. State of Kerala & Others,
reported in (2015) 8 SCC 293 submits that in order to constitute
the offence of cheating, mere breach of contract would not suffice
and if and only if, deception played since the very inception is
alleged then only, the offence of cheating will be constituted and if
the intention to cheat has developed later on, the same cannot
amount to cheating. It is next submitted by the learned counsel for
the petitioners that in this case, there is no allegation against the
petitioners that the petitioners had played deception since the
very inception of the transaction between the parties, hence even
if the allegations made against the petitioners are considered to be
true, still the offence punishable under Section 420 of the Indian
Penal Code is not made out.
6. The learned counsel for the petitioners next relies upon the
Judgment of Hon'ble Supreme Court of India, in the case of
Indian Oil Corporation vs. NEPC India Ltd. and Others,
reported in (2006) 6 SCC 736 wherein the Hon'ble Supreme Court
of India has taken note of growing tendency in the business circles
to convert purely civil disputes to criminal cases and in this
respect, the learned counsel for the petitioners also relies upon the
Judgment of the Hon'ble Supreme Court of India in the case of G.
Sagar Suri Vs. State of U.P. and Others, reported in (2000) 2 SCC
636.
7. The learned counsel for the petitioners next relies upon the
Judgment of 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)
And submits that therein the Hon'ble Supreme Court of India
has reiterated the settled principle of law that in order to
constitute the offence of criminal breach of trust, mere retention of
money by the accused person will not suffice and dishonest
misappropriation of the same is essential. It is next submitted by
the learned counsel for the petitioners that as in this case, there is
no allegation against the petitioners of having committed any
dishonest misappropriation of the property nor there is any
document to show any entrustment of the Rs.27,000/-, hence the
offence punishable under Section 406 of the Indian Penal Code is
not made out; in the facts of the case.
8. The learned counsel for the petitioners next relies upon the
Judgment of Hon'ble Supreme Court of India in the case of All
Cargo Movers (India) Private Limited and Others Vs. Dhanesh
Badarmal Jain and Another, reported in (2007) 14 SCC 776
wherein the Hon'ble Supreme Court of India has reiterated the
settled principle of law that breach of contract simpliciter does not
constitute any offence and in the facts of that case, the Hon'ble
Supreme Court of India took into consideration the
correspondences exchanged by the parties and other admitted
documents filed in the connected civil suit.
9. It is next submitted by the learned counsel for the petitioners
relying upon the Judgment of Hon'ble Supreme Court of India in
the case of Hira Lal Hari Lal Bhagwati Vs. C.B.I., New Delhi,
reported in (2003) 5 SCC 257 that from the failure of the accused
to keep promise, the culpable fraudulent and dishonest intention
at the beginning i.e. at the time when the promise was made
cannot be presumed. Hence, it is submitted that the prayer as
prayed for by the petitioners in this criminal miscellaneous
petition be allowed.
10. The learned Spl. P.P. and the learned counsel for the opposite
party no.2 on the other hand vehemently opposes the prayer as
prayed for in this criminal miscellaneous petition and submits
that since there is direct and specific allegation against the
petitioners that they have misappropriated Rs.27,000/- entrusted
to them which they have obtained by way of cheating, hence both
the offences punishable under Section 406 and 420 of the Indian
Penal Code are made out. Hence, it is submitted that this criminal
miscellaneous petition being without any merit be dismissed.
11. 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 there is absolutely no chit of paper in support of
the contention of the complainant that the complainant paid
Rs.27,000/- to the petitioners. From the admitted document at
annexure-5 which is the agreement between the parties dated
31.01.2022 which though as per the case of the complainant is
subsequent to the date of entrustment of Rs.27,000/- which was
made in the year 2021 but there is no reference of such
entrustment of Rs.27,000/- in the said agreement annexed as
annexure-5. There is no allegation against the petitioners that the
petitioners played deception since the beginning of the transaction
between the parties nor there is any allegation of dishonest
misappropriation of the amount of money allegedly entrusted by
the complainant to the petitioners.
12. Under such circumstances, keeping in view the admitted civil
dispute between the parties regarding the leakage in the common
wall of the parties, this Court is of the considered view that it is
apparent that this criminal case has been instituted for the
purpose of wreaking vengeance and neither the offence
punishable under Section 406 nor the offence punishable under
Section 420 of the Indian Penal Code is made out in the facts of
this case. Therefore, the continuation of this criminal case will
amount to abuse of process of law. Hence, this is a fit case where
the entire criminal proceeding in connection with Complaint Case
No. 301 of 2022 including the order taking cognizance dated
06.04.2022, passed by the learned Judicial Magistrate -1st Class,
Bokaro whereby and where under the learned Magistrate has
taken cognizance of the offences punishable under Section
406/420 of the Indian Penal Code be quashed and set aside.
13. Accordingly, the entire criminal proceeding in connection with
Complaint Case No. 301 of 2022 including the order taking
cognizance dated 06.04.2022, passed by the learned Judicial
Magistrate -1st Class, Bokaro whereby and where under the
learned Magistrate has taken cognizance of the offences
punishable under Section 406/420 of the Indian Penal Code is
quashed and set aside.
14. In the result, this criminal miscellaneous petition is allowed.
15. In view of disposal of this criminal miscellaneous petition,
Interlocutory Application No. 10356 of 2023 is disposed of being
infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st November, 2024
AFR/Sonu-Gunjan/-
