Jharkhand High Court

Rajeev Kumar Agarwalla vs The State Of Jharkhand on 27 February, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P. (Cr.) No. 883 of 2023


                 Rajeev Kumar Agarwalla, aged about 53 yrs., s/o Kailash Prasad
                 Agarwalla, r/o Jagdamba Niwar, Nag Nagar, Thakur Kulhi,
                 Dhaiya, Bhaawardaha, P.O., P.S. & Dist.-Dhanbad
                                                   ....                Petitioner
                                        Versus

                 1. The State of Jharkhand
                 2. Vivek Kumar Banka, s/o late Banwari Lal Banka, r/o C-I, First
                   Floor, Uni Heights Complex, Old H.B. Road, P.O, P.S. & Dist.-
                   Ranchi
                                             ....                 Respondents

                                        PRESENT

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

For the Petitioner : Mr. Shailesh Kumar Singh, Advocate : Mr. Abhijeet Kumar Singh, Advocate For the State : Mr. Manoj Kumar, GA III : Mr. Deepankar, AC to GA III For the Respondent No.2 : Mr. Pandey Neeraj Rai, Advocate .....

By the Court:-

1. Heard the parties.

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

Court under Article 226 and Article 227 of the Constitution of

India with a prayer to quash the entire criminal proceeding in

connection with Lower Bazar P.S. Case No. 286 of 2023 registered

for the offence punishable under Sections 406, 420 and 120B of

Indian Penal Code.

3. The brief fact of the case is that the co-accused-Raj Kumar

Choudhary cheated and thereby induced the informant to part

with Rs. 6,85,94,073/- by enticing and alluring the informant and

his associates by making them invest huge amount of money with

Yash Alloys Private Limited and the only allegation against the

petitioner is that the petitioner was the original owner of Yash

Alloys Private Limited which has been taken over by the Punjab

National Bank.

4. It is submitted by the learned counsel for the petitioner by

relying upon the judgment of the Hon'ble Supreme Court of India

in the case of Naresh Kumar & Ors. vs. The State of Karnataka &

Ors. reported in MANU/SC/0193/2024 that High Court must not

hesitate in quashing such criminal proceeding which are

essentially of a civil nature. It is next submitted by the learned

counsel for the petitioner that this is a case essentially of civil

nature. Learned counsel for the petitioner next relied upon the

judgment of Hon'ble Supreme Court of India in the case of Delhi

Race Club (1940) Ltd. & Ors. vs. State of Uttar Pradesh & Anr.

reported in 2024 SCC OnLine SC 2248, paragraph no.46 of which

reads as under :-

"46. It has been held in State of Gujarat v. Jaswantlal Nathalal [State of Gujarat v. Jaswantlal Nathalal, 1967 SCC OnLine SC 58 : AIR 1968 SC 700 : (1968) 2 SCR 408] :

(SCC OnLine SC para 8) "8. The term "entrusted" found in Section 405IPC governs not only the words "with the property"

immediately following it but also the words "or with any dominion over the property" occurring thereafter-- see Velji Raghavji Patel v. State of Maharashtra [Velji Raghavji Patel v. State of Maharashtra, 1964 SCC OnLine SC 185 : AIR 1965 SC 1433 : (1965) 2 SCR 429] . Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner.

But that does not mean that such an entrustment need conform to all the technicalities of the law of trust -- see Jaswantrai Manilal Akhaney v. State of Bombay [Jaswantrai Manilal Akhaney v. State of Bombay, 1956 SCC OnLine SC 46 : AIR 1956 SC 575 : 1956 SCR 483] . The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an "entrustment".""

and submits that in the absence of entrustment of any property

to the petitioner or in the absence of any allegation against the

petitioner of dishonestly inducing anybody to part with any

property or money etc., the offence punishable under Section 420

or 406 of Indian Penal Code is not made out against the petitioner.

5. Learned counsel for the petitioner next relied upon the judgment

of Hon'ble Supreme Court of India in the case of Mahmood Ali &

Ors. vs. State of U.P. & Ors. reported in 2023 INSC 684,

paragraph no.13 of which reads as under :-

"13. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-

"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of

justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence 15 or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly.

At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....." (Emphasis supplied)"

and submits that only such materials that manifestly fails to

prove the accusation in the FIR can be considered for quashing an

FIR.

6. It is next submitted by the learned counsel for the petitioner that

the Memorandum of Understanding for running induction

furnace unit of Yash Alloys Private Limited was the subject matter

of dispute between the parties and the petitioner has got nothing

to get from the said Memorandum of Understanding rather the

profit or loss between the co-accused and the informant has been

specified therein; to be shared by others. It is also submitted by

the learned counsel for the petitioner that there is a delay of about

5 months in lodging of the FIR which only goes to show that this

case has been instituted on the basis of a concocted story. It is

further submitted by the learned counsel for the petitioner that the

entire transaction between the parties was a commercial

transaction and no element of criminal liability is involved in the

same. It is next submitted by the learned counsel for the petitioner

that there is no allegation against the petitioner of taking any

money from the informant. Hence, it is submitted that the prayer

as made in this writ petition be allowed.

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

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

as made by the petitioner in this writ petition and submits that

with the aid of Section 120B of Indian Penal Code both the

offences punishable under Sections 420 and 406 of Indian Penal

Code is attracted to the facts of the case. 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 there is absolutely no allegation against the

petitioner of having inducing the informant to take any money or

having taken any money from the informant. Under such

circumstances, this Court is of the considered view that the

offence punishable under Section 406 of Indian Penal Code is not

made out.

9. So far as the offence punishable under Section 420 of Indian

Penal Code is concerned, there is no allegation against the

petitioner of dishonestly inducing the informant to part with any

money rather the said allegation is against the co-accused person.

10. Under such circumstances, this Court is of the considered view

that even if the entire allegation made in the FIR are considered to

be true in their entirety, still, the same are insufficient to either

constitute the offence punishable under Section 406 or 420 of

Indian Penal Code even with the aid of Section 120B of Indian

Penal Code.

11. Hence, this Court is of the considered view that the continuation

of the criminal proceeding against the petitioner in connection

with Lower Bazar P.S. Case No. 286 of 2023 will amount to abuse

of process of law and this is a fit case where the entire criminal

proceeding in connection with Lower Bazar P.S. Case No. 286 of

2023 be quashed and set aside qua the petitioner only.

12. Accordingly, the entire criminal proceeding in connection with

Lower Bazar P.S. Case No. 286 of 2023 is quashed and set aside

qua the petitioner only.