Jharkhand High Court

Rakesh Kumar vs The State Of Jharkhand on 9 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr.M.P. No. 87 of 2023


           1. Rakesh Kumar, aged about 57 years, son of Sri Shivnath Prasad
               Shrivastava
           2. Mamta Devi @ Mamta Srivastav, aged about 50 years, wife of
               Rakesh Kumar
           3. Mayank Kumar Srivastava @ Mayank Raj, aged about 24 years, son
               of Rakesh Kumar
               All resident of village Sandi (Teliya), P.O. -Bharechnagar Sandi and
               P.S. Mandu, District -Ramgarh (Jharkhand)
                                                 ....              Petitioners
                                     Versus
           1. The State of Jharkhand
           2. Arun Kumar Khatri, aged about 63 years, son of Sri Girja Prasad
              Sinha, Resident of Ramgarh College Colony, Near Reliance Tower,
              P.O. and P.S. + District - Ramgarh (Jharkhand) presently residing in
              Rajrappa Project, Qr. No. B6/5, P.O. and P.S. -Rajrappa, District -
              Ramgarh (Jharkhand).
                                                ....               Opp. Parties

                                       PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioners : Mr. Kumar Harsh, Advocate : Ms. Khushboo Kumari, Advocate : Mr. Suraj Kishore Prasad, Advocate For the State : Mr. V.K. Vashistha, Spl. P.P. For the O.P. No.2 : None .....

By the Court:-

1. Heard the parties.

2. No one turns up on behalf of the opposite party no.2 in-spite of

repeated calls.

3. 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 First

Information Report in connection with Mandu (Kujju) P.S. Case

No. 124 of 2021 and also to quash the order dated 21.11.2022,

passed by the learned A.C.J.M., Ramgarh, in which cognizance

has been taken for the offences punishable under Sections

406/420/323/504/34/120B of the Indian Penal Code.

4. The allegation against the petitioners is that the complainant

through a property broker approached the petitioner no.1 for

purchase of his land for total consideration of Rs.29,00,000/- and

agreement for sale was entered into between the parties on

08.08.2018 and the complainant paid Rs.8,00,000/- as part

payment. The petitioners agreed to transfer the land and house

within six months that is before 07.02.2019. The complainant is

ready and willing to perform his part of the contract but the

accused persons have not transferred the same but requested for

three months' time for which an agreement for extension was

entered into on 04.04.2019 and during the extended period also

the petitioners did not transfer the land and during these period,

the accused persons of the case took Rs.21,00,000/- but one of the

cheque of Rs.3,00,000/- was not presented by the accused within

the validity period, hence the amount has not been credited. The

complainant approached the accused persons several times and

by this act of the petitioners, the complainant got shocked and got

a cardiac attack. The complainant filed Complaint Case No. 234 of

2021 in the Court of Chief Judicial Magistrate, Ramgarh and the

same was referred to police under Section 156(3) Cr.P.C. On the

basis of the same Mandu (Kujju) P.S. Case No. 124 of 2021 has

been registered. Police after investigation of the case submitted a

charge sheet alleging commission of the offences punishable

under Section 406/420/323/504/34/120B of the Indian Penal

Code and on the basis of the same; the learned Magistrate took

cognizance of the said offences against the petitioners.

5. It is submitted by the learned counsel for the petitioners relying

upon the Judgment of Hon'ble Supreme Court of India in the case

of Hridaya Ranjan Prasad Verma Vs. State of Bihar, reported in

(2000) 4 SCC 168, para-15 of which reads as under:-

"15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

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

has reiterated the settled principle of law that mere breach of

contract cannot give rise to criminal prosecution for cheating

unless fraudulent or dishonest intention is shown right at the

beginning of the transaction, that is the time when the offence is

said to have been committed.

6. The learned counsel for the petitioners next relies upon the

Judgment of 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 wherein, it has been held that 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

7. The learned counsel for the petitioners next relies upon the

Judgment of Hon'ble Supreme Court of India in the case of Ankur

Gupta Vs. State of Uttar Pradesh and Another, reported in (2017)

SCC Online SC 2023, the relevant part of paragraph no.7 of which

reads as under:-

"7. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx Since the appellant is not a party to the agreement or any transaction between the complainant and other accused, there is no reason as to why he should face criminal trial and that too for the offences under Sections 406, 420 IPC etc. xxxxxxx xxxxx. (Emphasis Supplied)"

And submits that the Hon'ble Supreme Court of India has

reiterated the settled principle of law that if an accused person is

not a party to the agreement or any transaction between the

complainant and other accused, there is no reason, as to why he

should face criminal trial and that too for the offences under

Section 406/420 of the Indian Penal Code.

8. It is next submitted by the learned counsel for the petitioners

that there is absolutely no allegation against the petitioner nos. 2

& 3. The alleged entrustment or entering into an agreement is only

against the petitioner no.1. It is next submitted that there is no

allegation of dishonest misappropriation of the entrustment made

to the petitioner no.1 nor is there any allegation of any intentional

insult having been caused by any of the petitioners to the

informant or by anyone else. Hence, it is submitted that the

offence punishable under Section 504 of the Indian Penal Code is

not made out against the petitioners. It is then submitted that

there is no allegation against the petitioners of causing hurt to

anyone. Hence, the offence punishable under Section 323 of the

Indian Penal Code is not made out against the petitioners. It is

therefore submitted that the prayer as prayed for by the

petitioners in this criminal miscellaneous petition be allowed.

9. The learned Special Public Prosecutor on the other hand

vehemently opposes the prayer as prayed for in this criminal

miscellaneous petition and submits that the allegations made

against the petitioners are sufficient to constitute the offence in

respect of which the cognizance has been taken by the learned

Magistrate. Hence, at this nascent stage, the entire criminal

proceeding ought not to be quashed. It is lastly submitted that this

criminal miscellaneous petition being without any merit be

dismissed.

10. 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 (supra)

and similarly is the legal position in respect of an offence of

criminal breach of trust, 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)

11. Now coming to the facts of the case, there is absolutely no

allegation against the petitioner nos. 2 & 3. They are neither party

to the agreement nor any entrustment was made to them. So far as

the petitioner no.1 is concerned, there is no allegation of his

having playing deception since the beginning of the transaction

between the parties.

12. 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. There is no allegation of any

dishonest misappropriation against any of the petitioners and

there is no allegation of entrustment against the petitioner nos. 2

& 3. Under such, circumstances, this Court is of the considered

view that even if the entire allegations made against the

petitioners are considered to be true, still the offence punishable

under Section 420 or 406 of the Indian Penal Code is not made out.

13. So far as the offence punishable under Section 323 of the Indian

Penal Code is concerned, there is no allegation against the

petitioners of having caused hurt to anyone. Hence, the offence

punishable under Section 323 of the Indian Penal Code is not

made out. In the absence of any allegation against the petitioners

of intentionally insulting anyone, the offence punishable under

Section 504 of the Indian Penal Code is also not made out.

14. In view of the discussions made above, since none of the

offences in respect of which the cognizance has been taken by the

learned Magistrate is made out against the petitioners, hence

continuation of this criminal proceeding will amount to abuse of

process of law. Therefore, this is a fit case where the entire

criminal proceeding including the First Information Report in

connection with Mandu (Kujju) P.S. Case No. 124 of 2021 and also

the order dated 21.11.2022, passed by the learned A.C.J.M.,

Ramgarh, in which cognizance has been taken for the offences

punishable under Sections 406/420/323/504/34/120B of the

Indian Penal Code, be quashed and set aside.

15. Accordingly, the entire criminal proceeding including the First

Information Report in connection with Mandu (Kujju) P.S. Case

No. 124 of 2021 and also the order dated 21.11.2022, passed by the

learned A.C.J.M., Ramgarh, in which cognizance has been taken

for the offences punishable under Sections

406/420/323/504/34/120B of the Indian Penal Code is quashed

and set aside.