Jharkhand High Court
Md. Moin vs The State Of Jharkhand .... Opp. Party on 21 April, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:11722)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 665 of 2025
Md. Moin, aged about 60 years, s/o late Md. Said @ Sayeed, r/o Type
2/591, Double Story, Village-Rajrappa Project, P.O.-Sandi, P.S.-
Rajrappa, Dist.-Ramgarh, Jharkhand .... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Baibhaw Gahlaut, Advocate
For the State : Mr. Pankaj Kr. Mishra, 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 the Bharatiya
Nagarik Suraksha Sanhita, 2023 with a prayer to quash and set
aside the F.I.R. including the entire criminal proceeding of
Rajrappa P.S. Case No. 118 of 2022 registered for the offences
punishable under Section 406/420/34 of the Indian Penal Code
and under Section 138 of the Negotiable Instrument Act, 1881.
3. The brief fact of the case is that the allegation against the
petitioner is that the son of the petitioner namely Md. Hasnain @
Md. Husnain @ Captain hired the JCB Machine of the informant
on a monthly rent of Rs.70,000/- after entering into an agreement
and subsequently took Rs.3,40,000/- on hand loan, for the
purpose of marriage of his sister and the petitioner stood
guarantor against the said loan taken by his son from the
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informant and is also a signatory in the agreement entered into
between the co-accused and the informant. There is also allegation
against the petitioner that as the co-accused was delaying the
repayment of the loan taken by him, the petitioner issued a
cheque of Bank of India, Rajrappa Project Branch of Rs.2,50,000/-
drawn in favour of the informant but the said cheque was
dishonoured.
4. The learned counsel for the petitioner, relying upon the
Judgment of Hon'ble Supreme Court of India in the case of Neetu
Singh & Ors. Vs. State of U.P., reported in 2022 Live Law (SC)
281 submits that therein the Hon'ble Supreme Court of India has
observed that failure to pay rent may have civil consequences, but
is not an offence under the Indian Penal Code and submits that
non-payment of the rent for the JCB Machine at best can give rise
to civil dispute but certainly the same cannot give rise to any
offence under the Indian Penal Code.
5. Relying upon the Judgment of this Court in the case of
Satyabhama Dubey @ Satyabhama Devi and Ors. Vs. The State
of Jharkhand and Ors., reported in 2024 0 Supreme (Jhk.) 171, it
is submitted by the learned counsel for the petitioner that in that
case, this Court relied upon the Judgment of 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, the relevant
paragraph no. 6 of which reads as under :-
6. Xxxx xxxx xxxx
It is well settled that every breach of contract would not
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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)
Wherein the Hon'ble Supreme Court of India reiterated the
settled principle of law 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.
6. It is next submitted by the learned counsel for the petitioner that
there is absolutely no allegation that the petitioner had any
dishonest intention since the beginning of the transaction between
the parties. It is further submitted by the learned counsel for the
petitioner that in fact the co-accused has paid part of the amount
and the petitioner has also issued a cheque but even though the
cheque was dishonoured, only a complaint case could have been
filed if the petitioner would not have paid the amount mentioned
in the cheque in-spite of the notice demanding payment of the
cheque amount, within the stipulated period, in view of section
142 of the Negotiable Instrument Act, 1881 but a police case
cannot be filed, for dishonour of a cheque and the consequent
non-payment of the cheque amount; even after demand. Is next
submitted that as notice demanding payment of the cheque
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amount was never given to the petitioner, even a complaint could
not have been filed in this case.
7. It is next submitted by the learned counsel for the petitioner that
this Court in the said case also relied upon the Judgment of
Hon'ble Supreme Court of India in the case of Binod Kumar &
Ors. Vs. State of Bihar & Anr. 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)
Wherein the Hon'ble Supreme Court of India reiterated the
settled principle of law that to make out a case of criminal breach
of trust, it is not sufficient to show that property has been retained
by the accused persons but must also be shown that the accused
persons dishonestly disposed of the same in some way or
dishonestly retained the same.
8. It is next submitted by the learned counsel for the petitioner that
this Court has quashed the entire criminal proceeding of Rajrappa
(2025:JHHC:11722)
P.S. Case No. 118 of 2022 against the co-accused-son of the
petitioner namely Md. Hasnain @ Md. Husnain @ Captain vide
order dated 30.09.2024 in Cr.M.P. No. 2845 of 2024. It is further
submitted by the learned counsel for the petitioner that in the
absence of any allegation that the petitioner has dishonestly
retained the money or dishonestly disposed of the same, in any
manner, the offence punishable under Section 406 of the Indian
Penal Code is not made out. It is next submitted that the dispute
between the parties is purely a civil dispute and a cloak of
criminal case has been given to it by the informant for the purpose
of wreaking vengeance. Therefore, it is submitted that the
continuation of this criminal proceeding will amount to abuse of
process of law. Hence, it is submitted that the prayer as prayed for
by the petitioner in this criminal miscellaneous petition be
allowed.
9. The learned Addl. P.P. on the other hand vehemently opposes
the prayer as prayed for by the petitioner in this criminal
miscellaneous petition and submits that there is direct and specific
allegation against the petitioner of, in furtherance of common
intention with the co-accused person-son of the petitioner
committing the offence of cheating and criminal breach of trust by
taking the JCB Machine with the promise of paying rent for the
same but not paying the same. Hence, it is submitted that this
criminal miscellaneous petition being without any merit be
dismissed.
(2025:JHHC:11722)
10. Having heard the submissions made at the Bar and after going
through the materials available in the record, so far as the offence
punishable under Section 420 of the Indian Penal Code is
concerned, it is a settled principle of law that to constitute the said
offence, there has to be deception since the beginning of the
transaction between the parties.
11. Now coming to the facts of the case, there is no allegation of any
deception being played by the petitioner since the beginning of
the transaction between the parties. In the absence of the same,
this Court has no hesitation in holding that the offence punishable
under Section 420 of the Indian Penal Code is not made out.
12. So far as the offence punishable under Section 406 of the Indian
Penal Code is concerned, there is absolutely no allegation that the
petitioner dishonestly retained the property or dishonestly
disposed of the same in some way. In the absence of the same, the
offence punishable under Section 406 of the Indian Penal Code is
not made out; even if the entire allegations made against the
petitioner are considered to be true.
13. So far as the offence punishable under Section 138 of the
Negotiable Instrument Act, 1881 is concerned, certainly a police
case is not sustainable and for the offence punishable under
Section 138 of the Negotiable Instrument Act, 1881 a complaint is
to be filed before the concerned Magistrate; if the amount is not
paid even after service of notice of demand as is envisaged in
Section 142 of the Negotiable Instrument Act, 1881.
(2025:JHHC:11722)
14. This Court is of the considered view that the dispute between
the parties is basically a civil dispute and a cloak of criminal case
has been given only for the purpose of wreaking vengeance and
as already mentioned above, even if the entire allegation made
against the petitioner are considered to be true, neither the offence
punishable under Section 420 nor the offence punishable under
Section 406 of the Indian Penal Code is made out. Therefore,
continuation of this criminal proceeding will amount to abuse of
process of law. Hence, this is a fit case where the F.I.R. including
the entire criminal proceeding of Rajrappa P.S. Case No. 118 of
2022 registered for the offences punishable under Section
406/420/34 of the Indian Penal Code and under Section 138 of the
Negotiable Instrument Act be quashed and set aside qua the
petitioner only.
15. Accordingly, the F.I.R. including the entire criminal proceeding
of Rajrappa P.S. Case No. 118 of 2022 registered for the offences
punishable under Section 406/420/34 of the Indian Penal Code
and under Section 138 of the Negotiable Instrument Act being not
sustainable in law is quashed and set aside qua the petitioner only.
16. This criminal miscellaneous petition is allowed to the aforesaid
extent only.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st April, 2025
AFR/Sonu-Gunjan/-
