Jharkhand High Court

Md. Yasir @ Yasir @ Mohammad Yasir vs State Of Jharkhand on 24 February, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P. (Cr.) No. 810 of 2024


                 1. Md. Yasir @ Yasir @ Mohammad Yasir, aged about 42 years,
                   son of Late Babu Bhai Bauswale @ Gulam Mohammad;
                 2. Safura Siddiqui @ Safoora Siddiqui @ Safoora, aged about 36
                   years, son of Mohammad Yasir @ Md. Yasir;
                   Both are Residents of Lal Kothi, Near Eden Public School, P.O.
                   and P.S. -Bazdariapura, District -Bahraich, State -Uttar
                   Pradesh.
                                                   ....                Petitioners
                                            Versus

                 1. State of Jharkhand
                 2. Javed Alam, son of Md. Hadish, Resident of Ratanji Road,
                   Purana Bazar, P.O. and P.S. -Bankmore, District -Dhanbad.
                                                          ....

Respondents

PRESENT

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

For the Petitioner : Mrs. Jasvindar Mazumdar, Advocate For the Resp.-State : Mr. Jai Prakash, AAG-IA.

: Mr. Yogesh Modi, AC to AAG-IA For the Resp. No.2 : Mr. Niranjan Kumar, Advocate .....

By the Court:-

1. Heard the parties.

2. This Writ Petition has been filed invoking the jurisdiction of this

Court under Article 226 of the Constitution of India with a prayer

for quashing the entire criminal proceeding including the First

Information Report in connection with Bank More P.S. Case No.

100 of 2024 involving the offences punishable under Section

406/420 of the Indian Penal Code.

3. The allegation against the petitioners is that the petitioner no.1

took 200 tons of steamed coal from the supplier on the guarantee

of the informant, the value of which including the transportation

by truck charges was Rs.32,28,336/-, out of which the petitioner

no.1 has paid Rs.14,40,000/- to the informant but is not repaying

the remaining amount of Rs.17,88,336/-. The petitioner no.2 has

been arrayed as an accused only because he is one of the partners

of the petitioner no.1 in the partnership firm in the name and style

of Prayag Brick Field.

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

upon the Judgement of Hon'ble Supreme Court of India in the

case of Dalip Kaur and Others Vs. 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)

And submits that therein law has been settled by the Hon'ble

Supreme Court of India that if the dispute between the parties is

essentially a civil dispute resulting from a breach of contract on

the part of the accused persons; by non-refunding the amount of

advance, then the same would not constitute the offence of

cheating and similar is also the legal position in respect of the

offence of criminal breach of trust.

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

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

Sarabjit Kaur Vs. State of Punjab and Another, reported in

(2023) 5 SCC 360 para-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." (Emphasis supplied)

And submits that therein it has been categorically held by the

Hon'ble Supreme Court of India 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.

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

that that the allegations against the petitioners is false. It is then

submitted that in the absence of any misappropriation of any

property entrusted, the offence punishable under Section 406 of

the Indian Penal Code is not made out. It is further submitted that

the dispute between the parties arises from a commercial

transaction. Drawing attention of this Court to para-10 of the writ

petition, it is submitted by the learned counsel for the petitioners

that after lodging of the F.I.R. also, the petitioners have already

transferred Rs.3,00,000/- by way of NEFT to the account of the

employer of the informant namely Vasudeva Fuels & Lime.

Hence, it is submitted that the prayer as prayed for by the

petitioners in this writ petition be allowed.

7. The learned counsel for the State and the learned counsel for the

respondent no.2 on the other hand vehemently opposes the prayer

as prayed for by the petitioners in this writ petition and submits

that the undisputed fact remains that the petitioners have not paid

Rs.14,88,336/-. Hence, it is submitted that this writ petition being

without any merit be dismissed.

8. Having heard the submissions made at the Bar and after

carefully 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 Vir

Prakash Sharma vs. Anil Kumar Agarwal & Anr., reported in

(2007) 7 SCC 373, para -8 of which reads as under:-

"8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of

the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus:

"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'."

Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made." (Emphasis supplied)

Wherein the Hon'ble Supreme Court of India has reiterated the

settled principle of law that when the dispute between the parties

is essentially a civil dispute, non-payment or underpayment of the

price of the goods by itself will not amount to the offence of

cheating or criminal breach of trust.

9. It is pertinent to mention here that there is an inordinate delay in

lodging of this F.I.R. as though the transaction took place between

25.10.2022 to 08.12.2022, the F.I.R. was instituted only on

09.06.2024. It is also as settled principle of law as has been

reiterated 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.

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

allegation that the petitioners played deception at the very

inception of the transaction between the parties, rather it is the

admitted case of the informant that the petitioner no.1 has already

paid Rs.14,40,000/- and after lodging of the F.I.R. paid another

sum of Rs.3,00,000/-. Under such circumstances, this Court is of

the considered view that even if the entire allegation made in the

F.I.R. are considered to be true in their entirety, still the offence

punishable under Section 406 of 420 of the Indian Penal Code is

not made out. Hence, the continuation of the F.I.R., in the

considered opinion of this Court, will amount to abuse of process

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