Jharkhand High Court
Shankar Kumar Verma vs The State Of Jharkhand on 25 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2458 of 2014
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Shankar Kumar Verma, Son of Mahendra Sao @ Mahendra
Verma, Resident of Phusro Ranibagh, House No.475, P.O.-
Phusro, P.S.- Bermo, District- Bokaro;
... Petitioner
Versus
1. The State of Jharkhand
2. Santosh Kumar Verma, Son of Sri Madan Verma @ Madan Kumar
Verma, Resident of Jwaharnagar Near Durga Mandir, P.O. & P.s.-
Bermo, District- Bokaro;
... Opposite Parties
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For the Petitioner : Mr. Atanu Banerjee, Advocate
For the State : Mrs. Shweta Singh, Addl.P.P.
For the O.P. No.2 : Ms. Vandana Singh, Advocate
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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 the order dated 07.07.2014 passed by the learned
Additional Chief Judicial Magistrate, Bermo at Tenughat in connection with
C.P. Case No.528 of 2013 whereby and where under the learned Additional
Chief Judicial Magistrate, Bermo at Tenughat found prima facie case for the
offence punishable under Section 406 of the Indian Penal Code.
3. The allegation against the petitioner is that the petitioner entered into a
business of running a truck with the complainant by each of them investing
Rs.1,45,000/- each. There was some extravagant expenditure made by the
petitioner. A panchayati was held between the parties in which it was agreed to
by the petitioner that the petitioner would return the investment of the
complainant and will pay Rs.30,000/- over and above the same towards profit.
The petitioner paid cash amount of Rs.1,02,900/- and issued two cheques- one
for Rs.15,000/- and another for Rs.30,000/- in favour of the father of the
complainant but the cheques were dishonoured. After demand of the cheque
amount as made by giving notice, the amount was not paid. Hence, the
complainant filed the complaint case.
4. The learned Additional Chief Judicial Magistrate, Bermo at Tenughat, on
the basis of the complaint, statement on solemn affirmation and the statement
of enquiry witnesses, considered that the cheques were admittedly issued in
the name of the father of the complainant. The complainant is neither payee nor
the holder in due course of the said cheques. Hence, in view of the mandate
under Section 142(2)(a) of the Negotiable Instruments Act, 1881 since the
complaint was not made by the payee or the holder in due course of the
cheques, did not take cognizance of the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 but found prima facie case for the offence
punishable under Section 406 of the Indian Penal Code.
2. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Binod Kumar & Others vs.
State of Bihar & Another 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 it is a settled principle of law that to make out a case of
criminal breach of trust, it is not sufficient to show that money has been
retained by the accused persons; it must also be shown that the accused
persons dishonestly disposed of the same in some way or dishonestly retained
the same and the mere fact that the accused persons did not pay the money to
the complainant does not amount to criminal breach of trust.
3. Learned counsel for the petitioner next submits that the petitioner has
paid Rs.15,000/- and Rs.30,000/- in cash to the complainant but as the
complainant did not return the cheques, so the petitioner issued "Stop
Payment" instruction to his banker in respect of the said two cheques. Hence, it
is submitted that even after the allegation made in the complainant is
considered to be true in its entirety, still the offence punishable under Section
406 of the Indian Penal Code is not made out against the petitioner. It is,
therefore, submitted that the prayer as prayed for in this Criminal
Miscellaneous Petition be allowed.
4. 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 made by
the petitioner in this Criminal Miscellaneous Petition and submit that from the
conduct of the petitioner, the intention of the petitioner is crystal clear that he
had committed dishonest misappropriation of the money entrusted to him.
Hence, it is submitted that this Criminal Miscellaneous Petition, being without
any merit, be dismissed.
5. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, this Court is of the
considered view that admitted relationship of the petitioner and the
complainant is a commercial relationship of entering into a partnership. There
is no allegation that the complainant entrusted any money to the petitioner,
rather both the petitioner and the complainant invested their money in a
partnership business. So, the same cannot be termed as entrustment as
envisaged under Section 406 of the Indian Penal Code. Further, there is no
allegation against the petitioner of having any exclusive dominion over any
money nor there is any allegation of dishonest misappropriation of property
against him; rather it is the admitted case of the complainant that the petitioner
has already paid Rs.1,02,900/-to the complainant and issued two cheques for
the rest of the amount in the name of the father of the complainant.
6. Under such circumstances, this Court has no hesitation in holding that
even if the allegation made in the complaint is considered to be true in its
entirety; still the offence punishable under Section 406 of the Indian Penal Code
is not made out against the petitioner. Therefore, the continuation of this
criminal proceeding will amount to abuse of process of law. Hence, this is a fit
case where the order dated 07.07.2014 passed by the learned Additional Chief
Judicial Magistrate, Bermo at Tenughat in connection with C.P. Case No.528 of
2013, be quashed and set aside.
7. Accordingly, the order dated 07.07.2014 passed by the learned
Additional Chief Judicial Magistrate, Bermo at Tenughat in connection with
C.P. Case No.528 of 2013, is quashed and set aside.
8. In the result, this Criminal Miscellaneous Petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 25th of October, 2024
AFR/ Saroj
