Jharkhand High Court

Aspire Techno Engineers Represented ... vs The State Of Jharkhand on 3 November, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                                                                           (2025:JHHC:32841)




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No.1517 of 2025
                                         ------

1. Aspire Techno Engineers represented through its Proprietor P. Arvind Kumar, aged about 45 years, son of P. Gurumurthy, having its registered office at D.No.31-29-11, Govind Road, Allipuram, P.O. and P.S. Allipuram, District Vishakhapatnam (Andhra Pradesh).

2. P. Arvind Kumar, aged about 45 years, son of P. Gurumurthy, resident of D.No.31-29-11, Govind Road, Allipuram, P.O. and P.S. Allipuram, District Vishakhapatnam (Andhra Pradesh).

                                                             ...               Petitioners
                                            Versus
            1. The State of Jharkhand

2. Tarun Kanti Ghosh, aged about 40 years, son of Tapan Kumar Ghosh, resident of D-368, New Dimna Road, P.S. Mango (Olidih), P.O. Mango, Jamshedpur, District East Singhbhum ... Opposite Parties

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             For the Petitioners       : Mr. Amit Kumar Sinha, Advocate
                                         Ms. Vidhika Saboo, Advocate
                                         Ms. Saman Ahmad, Advocate
             For the State             : Mr. Bhola Nath Ojha, Spl.P.P.
             For the O.P. No.2         : None
                                              ------
                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. Though notice has validly been served upon the opposite party

No.2 yet 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 528 of the Bharatiya Nagarik

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Suraksha Sanhita, 2023 with the prayer to quash the entire criminal

proceedings in relation to Protest-cum-Complaint Case No.2203 of 2021

along with the order dated 07.03.2022 by which the learned Magistrate

has found prima facie case for the offences punishable under Sections

406, 420, 120B and 34 of the Indian Penal Code and ordered for issue of

summons.

4. The brief fact of the case is that the petitioners induced the

complainant to part with 49 cheque leaves in connection with the

business in the name of the company, with which the complainant was

associated. The petitioners did not use the cheque leaves in the business

but misused the same for instituting Calendar Case No.1298 of 2019 in

the court of Special Magistrate-V, Vishakhapatnam in which the

complainant has been convicted, for having committed the offence

punishable under Section 138 of N.I. Act and has been sentenced to

Simple Imprisonment of one year; despite taking the plea that the said

cheques were stolen cheques.

5. Learned counsel for the petitioners relies upon the judgment of

the Hon'ble Supreme Court of the India in the case of S.C. Garg vs.

State of Uttar Pradesh passed in Criminal Appeal No(s).438 of 2018

dated 16th April, 2025 reported in 2025 LiveLaw (SC) 436 paragraph-20

of which reads as under:-

"20. For the above reason it is absolutely clear that Tyagi cannot maintain a prosecution on the basis of allegations which were precisely his defence in the earlier proceedings wherein he was an accused. Thus, the present criminal proceedings deserve to be quashed on this ground alone."

(2025:JHHC:32841)

and submits that therein it has been held by the Hon'ble Supreme

Court of India that a person cannot maintain a prosecution on the basis

of allegations which were precisely his defence in the earlier

proceedings wherein he was an accused.

6. It is next submitted that in this case, except the plea that the

cheques were misused, there is no allegation against the petitioner and

even if the entire allegations made against the petitioners are

considered to be true in their entirety, still none of the offences

punishable under Sections 406, 420, 120B and 34 of the Indian Penal

Code is made out against the petitioners. Hence, it is submitted that the

prayer, as prayed for in the instant Cr.M.P., be allowed.

7. Learned Spl.P.P. appearing for the State vehemently opposes the

prayer of the petitioners made in the instant Cr.M.P. and submits that

no illegality has been committed by the learned Magistrate in finding

prima facie case for the offences in view of ample materials available in

the record in support of the same. Therefore, it is submitted that this

Cr.M.P., being without any merit, be dismissed.

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

carefully going through the materials available in the record, this Court

finds that the dispute between the parties is basically a civil dispute

regarding a mining lease which was taken by way of a power of

attorney by the complainant. Some of the money has been paid to the

complainant but Rs.1,88,00,000/- has not been paid. The undisputed

fact remains that the complainant has been convicted in Calendar Case

No.1298 of 2019 of the court of Special Judge-V, Vishakhapatnam for

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having committed the offences punishable under Section 138 of N.I.

Act; despite taking the plea that the cheques which were dishonoured,

were stolen cheques. Since that plea has not been accepted even though

weighing the same in the scale of the balance of preponderance of

probability as a defence evidence, this Court is of the considered view

that there is insufficient material so far as the offence punishable under

Section 406 of the Indian Penal Code against the petitioner, in the

absence of any entrustment of property or any dishonest

misappropriation of the property against the petitioner. Thus, this

Court has no hesitation in holding that even if entire allegations made

against the petitioners are considered to be true in their entirety still the

offence punishable under Section 406 of the Indian Penal Code is not

made out against the petitioners.

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

Penal Code is concerned, it is a settled principle of law that in order to

constitute the offence punishable under Section 420 of the Indian Penal

Code, the accused must have played deception since the beginning of

the transaction between the parties and if the intention to cheat

develops later on, the same will not amount to cheating as has been

held by the Hon'ble Supreme Court of India in the case of Uma

Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10

SCC 336 paragraph-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

(2025:JHHC:32841)

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)

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

allegation against the petitioners of playing any deception since the

beginning of the transaction between the parties and in the absence of

the same even if the entire allegations made against them are

considered to be true in their entirety still the offence punishable under

Section 420 of the Indian Penal Code is not made out against the

petitioners.

11. In the absence of any of the ingredients of the offence punishable

under Section 120B of the Indian Penal Code being made out from the

materials available in the record, the said offence is not made out even

if the entire allegations made against them are considered to be true in

their entirety.