Jharkhand High Court
Aarsh Sahu @ Arsh Sahu vs The State Of Jharkhand on 22 November, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1396 of 2017
Aarsh Sahu @ Arsh Sahu, son of Mr. K.P. Sahu, resident of Burdman
Compound, Kali Mandir Road, P.O. & P.S.-Lalpur, Ranchi-834001 and
one of the Director, Brahmaputra Metallics Limited, Kamta Gola, P.O.
& P.S.-Gola, Dist.-Ramgarh-829210
.... Petitioner
Versus
1. The State of Jharkhand
2. Manoj Saw, son of late Bhola Sao, proprietor of M/s M.S.
Construction, Village-Futkadih, P.O.-Barkipunu, P.S.-Mahuatand,
Dist.-Bokaro-829112
3. Proprietor of M/s. Jay Bajrangbali, Village-Petarwar, P.O. & P.S.-
Petarwar, Dist.-Bokaro-829121
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Chitranjan Kr. Jha, Advocate
For the State : Mr. Arup Kr. Dey, Addl. P.P.
For O.P. Nos.2 & 3 : Mr. Zaid Ahmed, 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 including the order dated
18.04.2017 passed by the learned S.D.J.M., Bermo at Tenughat in
connection with Complaint Case No.2 of 2017 whereby and where
under, learned S.D.J.M., Bermo at Tenughat found prima facie case
against the petitioner for having committed the offences punishable
under Sections 323, 406 and 420 of Indian Penal Code.
3. The allegation against the petitioner is that the petitioner is the
director of a plant, which engaged the complainant as a contractor.
The complainant was paid from 2008-14 but in 2014 the plant
stopped payment to the complainant. The complainant is entitled to
get Rs.62,24,000/- from the plant and when the complainant
demanded money from the petitioner, the petitioner pushed the
complainant and went away.
4. On the basis of the complaint, statement of the complainant on
solemn affirmation and statement of the inquiry witnesses, the
learned S.D.J.M., Bermo at Tenughat found prima facie case of the
offence punishable under Section 323, 406 and 420 of Indian Penal
Code.
5. Learned counsel for the petitioner relied upon the judgment of
Hon'ble Supreme Court of India in the case of Vir Prakash Sharma
vs. Anil Kumar Agarwal & Anr. reported in (2007) 7 SCC 373,
paragraph nos. 8 and 13 of which reads as under:-
"8. The dispute between the parties herein is essentially a civil
dispute. Non-payment or underpayment of the price of the goods
by itself does not amount to commission of an offence of
cheating or criminal breach of trust. No offence, having regard
to the definition of criminal breach of trust contained in Section
405 of the Penal Code can be said to have been made out in the
instant case. Section 405 of the Penal Code reads, thus:
"405. Criminal breach of trust.--Whoever, being in any
manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or disposes
of that property in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust, or
wilfully suffers any other person so to do, commits
'criminal breach of trust'."
Neither any allegation has been made to show existence of the
ingredients of the aforementioned provision nor any statement
in that behalf has been made.
13. The ingredients of Section 420 of the Penal Code are as
follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any property
and finally intentionally inducing that person to do or
omit to do anything which he would not do or omit.
No act of inducement on the part of the appellant has been
alleged by the respondent. No allegation has been made that he
had an intention to cheat the respondent from the very
inception." (Emphasis supplied)
as well as the paragraph no.15 of the judgment of Hon'ble Supreme
Court of India in the case of Hridaya Ranjan Prasad Verma vs. State
of Bihar & Anr. reported in (2000) 4 SCC 168 and submits that in
those cases the Hon'ble Supreme Court of India has in no uncertain
manner, reiterated the settled principle of law that non-payment or
underpayment of the price of the goods by itself does not amount to
commission of the offence of cheating or criminal breach of trust.
6. It is next submitted by the learned counsel for the petitioner that
there is no allegation against the petitioner of causing hurt to the
complainant or anyone else and in the absence of the same, even if
the entire allegation made against the petitioner are considered to be
true in its entirety, still the offence punishable under Section 323 of
Indian Penal Code is not made out, against the petitioner. It is
further submitted by the learned counsel for the petitioner that the
allegation against the petitioner is false and only for wreaking
vengeance this false case has been instituted against the petitioner.
Hence, it is submitted that the prayer as made in this criminal
miscellaneous petition be allowed.
7. Learned Additional Public Prosecutor and the learned counsel for
the opposite party no.2 on the other hand vehemently opposes the
prayer made by the petitioner in this criminal miscellaneous petition
and submits that there is direct and specific allegation against the
petitioner that the petitioner by way of cheating had defrauded the
complainant of Rs.62,24,000/- and has misappropriated the same
and in the complaint the complainant has stated that the petitioner
slapped him once though he has not supported the said part of the
complaint case, in his statement on solemn affirmation. 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 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 will not amount to cheating.
9. Now coming to the facts of the case, it is the admitted case of the
complainant that the complainant was paid his dues by the plant of
which the petitioner is stated to be a director, for the period of six
years from 2008 to 2014. So, it cannot be said that the petitioner has
played deception since the beginning of the transaction and in the
absence of the same, certainly, even if the allegation made against
the petitioner are considered to be true in its entirety, still the offence
punishable under Section 420 of Indian Penal Code is not made out.
10. So far as the offence punishable under Section 406 of Indian Penal
Code is concerned, this is the case at best of underpayment and as
has been reiterated by the Hon'ble Supreme Court of India in the
case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr.
(supra), underpayment of the price of the goods by itself does not
amount to commission of an offence of criminal breach of trust.
Further, there is no allegation of any entrustment to the petitioner.
The company in which the petitioner is stated to be a director has not
been arrayed as an accused. There is no allegation of entrustment to
the petitioner personally of any property nor there is any allegation
of dishonest misappropriation of any entrusted property against the
petitioner. 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.
11. So far as the offence punishable under Section 323 of Indian Penal
Code is concerned, though in the complaint there has been an
allegation that the petitioner slapped the complainant once, but the
said fact has not been supported by the complainant in his statement
on solemn affirmation rather in his statement on solemn affirmation
the complainant has stated that the petitioner pushed him. There is
no allegation that hurt was caused to the complainant or anyone else
by the petitioner. 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 323 of Indian Penal Code is not made out.
12. In view of the discussions made above this Court is of the
considered view that continuation of the criminal proceeding of the
petitioner in connection with Complaint Case No. 2 of 2017 will
amount to abuse of process of law and this is a fit case where the
entire criminal proceeding including the order dated 18.04.2017
passed by the learned S.D.J.M., Bermo at Tenughat in connection
with Complaint Case No.2 of 2017 be quashed and set aside.
13. Accordingly, the entire criminal proceeding including the order
dated 18.04.2017 passed by the learned S.D.J.M., Bermo at Tenughat
in connection with Complaint Case No.2 of 2017 is quashed and set
aside.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 22nd November, 2024
AFR/Sonu-Gunjan/-
