Jharkhand High Court

Om Prakash vs The State Of Jharkhand on 24 October, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No.180 of 2019
                                         ------

Om Prakash, aged about 66 years, son of Late Jagdish Prakash Lal, Resident of ISM, Dhanbad, P.O. ISM, P.S. Dhanbad, District:-

            Dhanbad, (Jharkhand)                        ...            Petitioner
                                        Versus
            1. The State of Jharkhand, and

2. Binod Kumar Sinha, son of Late Chhote Nath @ Chotelal, resident of Saraidhella, P.O. Saraidhella, P.S. Saraidhella, District:-Dhanbad present address Qtr. No.B/51 T.V. Centre, Koyla Nagar, P.O. and P.S. Saraidhella, District Dhanbad.

                                                         ...          Opposite Parties
                                              ------
             For the Petitioner        : Mr. Indrajit Sinha, Advocate
                                       : Mr. Ajay Kr. Sah, Advocate
             For the State             : Mr. Sanjay Kr. Srivastava, Addl.P.P.
             For the O.P. No.2         : Mr. Ajay Kumar Singh, Advocate
                                               ------
                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. 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 entire criminal proceeding including

the order taking cognizance dated 10.09.2018 passed by learned Judicial

Magistrate-1st Class, Dhanbad whereby and where under the learned Judicial

Magistrate-1st Class, Dhanbad has found prima facie case for the offence

punishable under Section 417 of the Indian Penal Code and has ordered for

issuance of summons against the petitioner.

3. The allegation against the petitioner is that the petitioner entered into an

agreement for sale of the land. The complainant paid an advance of

Rs.4,00,000/- (four lakhs), but the petitioner refused to get the land registered

in the name of the complainant. The complainant collected the non-judicial

stamp for the purpose of execution and registration of sale deed. On 27.07.2011,

the petitioner took a further amount of Rs.2,50,000/- for the purpose of selling

the said land and ultimately the petitioner registered 5 Katha of land being 8.25

decimals in the name of the complainant on 30.07.2011. The consideration

amount was mentioned in the sale deed as Rs.2,65,000/- and the petitioner

promised that the remaining advance amount will be adjusted, but later on did

not execute the sale deed.

4. Learned counsel for the petitioner relying upon the judgment of Hon'ble

Supreme Court of India in the case of Kunti and Another vs. State of Uttar

Pradesh and Another reported in (2023) 6 SCC 109 wherein the Hon'ble

Supreme Court of India relied upon the judgment in the case of Sarabjit Kaur

vs. State of Punjab and 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."

And submits that therein, the Hon'ble Supreme Court of India reiterated

the settled principle of law 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 between the parties.

5. Learned counsel for the petitioner next submits that there is no allegation

against the petitioner of playing deception since the beginning of the

transaction between the parties and that the dispute between the parties is civil

dispute and a cloak of criminal offence has been given to it to harass the

petitioner.

6. Learned counsel for the petitioner further submitted that even if the

entire allegations made against the petitioner are considered to be true in their

entirety still the offence punishable under Section 417 of the Indian Penal Code

is not made against him. It is lastly submitted that the prayer, as prayed for in

the instant Cr.M.P, be allowed.

7. Learned Addl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 on the other hand vehemently oppose the prayer of the

petitioner made in the instant Cr.M.P and submits that though the petitioner

has agreed to sale 21 decimals of land yet he has only executed sale deed in

respect of 8.25 decimals, hence, the offence punishable under Section 417 of

Indian Penal Code is squarely made out. Therefore, it is submitted that this

Cr.M.P., being without any merit, be dismissed.

8. 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 if the

dispute between the parties was essentially a civil dispute resulting from a

breach of contract on the part of the accused persons, by non-refunding of the

advance amount, the same would not constitute an offence of cheating, as has

been held by the Hon'ble Supreme Court of India in the case of Dalip Kaur and

Others v. Jagnar Singh and Another reported in (2009) 14 SCC 696 para-10 of

which reads as under:-

"10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )" (emphasis supplied)

9. Now, coming to the facts of the case, there is no allegation against the

petitioner of playing deception since the beginning of the transaction between

the parties rather the fact that the petitioner has executed sale deed in respect

of 8.25 decimals of land in favour of the complainant goes to show the absence

of any such deception being played by the complainant.

10. Under such circumstances, this court is of the considered view that the

dispute between the parties is essentially a civil dispute and a cloak of criminal

offence has been given only for the purpose of wreaking vengeance to harass

the petitioner, hence, the continuation of this criminal proceeding against the

petitioner will amount to abuse of process of law. Therefore, this is a fit case

where the entire criminal proceeding including the order taking cognizance

dated 10.09.2018 passed by learned Judicial Magistrate-1st Class, Dhanbad, be