Jharkhand High Court
Shahnawaz Sheikh vs The State Of Jharkhand on 3 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2126 of 2024
Shahnawaz Sheikh, aged about 49 years, s/o late Hyder Sheikh, r/o-At
Sheikh Mansion, Central Street, Hindpiri, P.O. & P.S.-Hindpiri, Dist.-
Ranchi (Jharkhand)
.... Petitioner
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Kalyan Roy, Advocate
: Mr. Sidhartha Roy, Advocate
: Mr. Abhishek Kumar, Advocate
For the State : Mr. Sunil Kr. Dubey, Addl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with a
prayer to quash the order dated 25.06.2024 passed in M.C.A. No.
6680 of 2022 by the learned Judicial Magistrate 1st Class, Ranchi as
well as the entire criminal proceeding in connection with Kotwali
(Hindpiri) P.S. Case No. 661 of 2011, corresponding to G.R. No. 3601
of 2011 registered for the offence punishable under Sections 420, 406,
120B and 506 of Indian Penal Code.
3. The allegation against the petitioner is that the informant paid
Rs.5,00,000/- to the father of the petitioner for purchasing a land in
presence of the petitioner but the petitioner and his father are not
returning the money nor transferring the land to the informant.
4. Police after investigation of the case has submitted charge sheet
alleging commission of the offence punishable under Sections 420,
406, 120B and 506 of Indian Penal Code against the petitioner.
5. Learned Judicial Magistrate 1st Class, Ranchi vide order dated
25.06.2024 has erroneously mentioned in the order that the allegation
is that the informant gave Rs.5,00,000/- to the petitioner but in fact
Rs.5,00,000/- was given to the father of the petitioner and not the
petitioner and upon considering the materials in the record the
learned Judicial Magistrate 1st Class, Ranchi, rejected the petition for
discharge and fixed the case for framing of charge.
6. It is submitted by the learned counsel for the petitioner that the
father of the petitioner- Hyder Sheikh died on 29.12.2012 and the
proceeding has been dropped against him vide order dated
23.07.2021. It is next submitted by the learned counsel for the
petitioner that there is no specific allegation of entrustment of money
to the father of the petitioner- Hyder Sheikh by the informant. It is
then submitted by the learned counsel for the petitioner that the
informant in the FIR has not anywhere stated as to who paid the
money to the father of the petitioner but Annexure- 4 series goes to
show that the cheque was issued by Anita Jaiswal in capacity of
director of Sri Aghoreshwar Sai Developers Private Limited. It is
further submitted by the learned counsel for the petitioner that there
is no specific allegation against the petitioner of playing deception
since the beginning of the transaction between the parties nor there
is any allegation of entrustment of any money to the petitioner.
Relying upon the judgment of this Court in the case of Rashmi
Jaiswal @ Rashmi Purayar @ Bulbul & Ors. vs. The State of
Jharkhand & Anr. in Cr.M.P. No. 1047 of 2021, it is submitted by the
learned counsel for the petitioner that therein this Court reiterated
the settled principle of law that in the absence of any dishonest
misappropriation of the money by the accused persons of the case or
any allegation of entrustment of the money, the offence punishable
under Section 406 of Indian Penal Code will not be made out. In this
respect, learned counsel for the petitioner also relies upon the
judgment of this Court in the case of Prem Kumar Sahu vs. The
State of Jharkhand & Anr. in Cr.M.P. No. 1473 of 2022 dated
24.08.2023. Hence, it is submitted that the prayer as made in this
criminal miscellaneous petition be allowed.
7. Learned Additional Public Prosecutor on the other hand opposes
the prayer as made by the petitioner in this criminal miscellaneous
petition and submits that if the allegations made against the
petitioner are considered to be true, the materials in the record are
sufficient to establish that the petitioner committed the offences of
which cognizance has been taken, in criminal conspiracy with the co-
accused persons. 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, there is no allegation of the
petitioner cheating and thereby deceiving the informant or anyone
else to part with any property et cetera and in the absence of the
same, certainly, the continuation of 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, there is absolutely no allegation against the
petitioner of being entrusted with any money. The only allegation is
that in presence of the petitioner money was entrusted to his father
but it has not been mentioned in the FIR as to who entrusted the
money. The petitioner has enclosed the copy of the cheques which
goes to show that the same was entrusted by one Anita Jaiswal being
the director of a company. There is no allegation against the
petitioner of committing any dishonest misappropriation of the
property entrusted to his father nor is there any allegation of any
criminal intimidation having been committed by the petitioner.
11. Under such circumstances, this Court is of the considered view that
even if the entire allegations made against the petitioner are
considered to be true in its entirety still the offences punishable
under Sections 420, 406, 120B or 506 of Indian Penal Code is not
made out against the petitioner.
12. Hence, continuation of the criminal proceeding will amount to
abuse of process of law and this is a fit case where the order dated
25.06.2024 passed in M.C.A. No. 6680 of 2022 by the learned Judicial
Magistrate 1st Class, Ranchi as well as the entire criminal proceeding
in connection with Kotwali (Hindpiri) P.S. Case No. 661 of 2011,
corresponding to G.R. No. 3601 of 2011 be quashed and set aside qua
the petitioner only.
13. Accordingly, the order dated 25.06.2024 passed in M.C.A. No. 6680
of 2022 by the learned Judicial Magistrate 1st Class, Ranchi as well as
the entire criminal proceeding in connection with Kotwali (Hindpiri)
P.S. Case No. 661 of 2011, corresponding to G.R. No. 3601 of 2011 is
quashed and set aside qua the petitioner only.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 3rd September, 2024
AFR/Sonu-Gunjan/-
