Telangana High Court

Sripal Jain vs The State Of Telangana on 18 January, 2023

Bench: K.Surender

            HON'BLE SRI JUSTICE K.SURENDER

      CRIMINAL PETITION Nos.8390 and 11676 OF 2022
COMMON ORDER:
1.    Criminal Petition No.8390 of 2022 is filed to quash the

proceedings against the petitioner/A1 in C.C.No.386 of 2018

on the file of Chief Metropolitan Magistrate, Hyderabad for the

offences under Sections 420, 417, 406 and 120-B of IPC. The

2nd    respondent   is   one   Chandrakanth    Agarwal(A10/1st

petitioner in Criminal Petition No.11676 of 2022).

2. Criminal Petition No.11676 of 2022 is filed to quash the

proceedings against the petitioners/A10 to A13 in S.C.No.258

of 2022 on the file of VI Additional Metropolitan Sessions

Judge at Secunderabad for the offences under Sections 364,

364A, 365, 352, 368, 109, 120-B IPC r/w 149 IPC and Section

25(1) of the Arms Act, 1959. The 2nd respondent/Rahul Jain is

the cousin brother of Sripal Jain (A1 in Criminal Petition

No.8390 of 2022).

3. The facts leading to prosecution in C.C.No.386 of 2018

are that Chandrakanth Agarwal, who is the Director of Sri

Navdurga Billets Private Limited supplied material to an extent

of Rs.1.79 Crores to the petitioner/Sripal Jain-A1. However,

only an amount of Rs.50.00 lakhs was paid and Rs.1.29

Crores were due. On the basis of said business transaction,

Chandrakanth Agarwal filed criminal complaint on

14.07.2012, which was registered for the offences under

Sections 406, 417, 420 and 120-B IPC and the said case was

charge-sheeted on 05.07.2018.

4. The said Rahul Jain, who is the 2nd respondent in

Criminal Petition No.11676 of 2022 filed complaint on

18.12.2012 alleging that Chandrakanth Agarwal and his sons

were suspected of abducting his brother namely Sripal Jain for

the alleged outstanding amount of Rs.1.29 Crores. On the

basis of such information given, the police investigated the

case and found that Chandrakanth Agarwal and his sons had

engaged the services of A1 to A9 in S.C.No.258 of 2022, for

abducting Sripal Jain. Accordingly, A1 to A9 at the instance of

Chandrakanth Agarwal and his sons abducted Sripal Jain and

forcibly took his signatures on a blank stamp papers.

Aggrieved by the same, complaint was registered and

petitioners in Criminal Petition No.11676 of 2022 are arrayed

as A10 to A13 and charge sheeted.

5. In both the Criminal Petitions, learned counsel for the

petitioners would submit that the cases were outcome of

misunderstandings during the course of business

transactions. All of them have settled their issues and did not

intend to prosecute their cases, as such, prayed to quash the

proceedings against the petitioners in the cases registered

against them.

6. Further, on the basis of facts also, learned counsel for

the petitioners submits that in S.C.No.258 of 2022, the

petitioners have been implicated only on the basis of

confession of accused. There is no evidence to connect these

petitioners in any manner to the alleged abduction. Further,

the alleged abduction itself is doubtful in the manner in which

it was stated to have happened. None of the witnesses have

stated anything about the petitioners that they were complicit

in any manner in the alleged abduction that was carried out

by A1 to A9. The complaint of abduction is made up for the

reason of Chandrakanth/A1 filing a complaint of cheating and

misappropriation against Sripal Jain, who is the brother of the

defacto complainant/Rahul Jain.

7. In the other case, when the transactions are business

transactions and admittedly, an amount of Rs.50.00 lakhs

was paid out of Rs.1.79 Crores, which material was allegedly

supplied, the question of either cheating or criminal

misappropriation does not arise. Both, on the ground of

complainants in both the cases not intending to prosecute the

cases and settling the issues and further on facts also no

criminal case being made out against petitioners, both the

Criminal Petitions have to be allowed.

8. To attract an offence of cheating, there should be an

element of fraud from the inception in a business transaction.

In the present business transaction, material was supplied by

Chandrakanth Agarwal to Sripal Jain and out of the said

outstanding amount of Rs.1.79 Crores, Rs.50.00 lakhs was

already paid. Subsequently, not paying the outstanding for the

material received would not in any manner attract an offence

of cheating or criminal misappropriation. Failure of

contractual obligation in paying the amount gives rise to civil

dispute, but it cannot, in any manner be held that the

transaction is criminal in nature.

9. The allegation of dishonest intention at the inception is

missing in the said business transaction. Subsequent failure

to fulfill the obligation of paying the remaining amount

towards the goods delivered, will not, in any manner, attract

an offence of cheating.

10. In Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC

168, the Hon'ble Supreme Court held as follows:

"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."

11. In Indra Dalal v. State of Haryana [(2015) 11 SCC 31], the

Hon'ble Supreme Court held as follows:

"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and

torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.

17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible."

12. In the judgment reported in the case of Dipakbhai

Jagdishchandra Patel v. State of Gujarat[(2019)16 SCC 547]

the Hon'ble supreme Court held that the basis for framing

charge in a criminal trial cannot be confession of an accused.

13. Both on facts, since there is no evidence and also since

the parties have buried their differences and do not intend to

prosecute, this Court is of the opinion that the criminal

proceedings which are pending against the petitioners in both

the Criminal Petitions since the year 2012 would only result in

wasting of Courts' time when it is known that the parties are

not going to depose against one another.

14. In the result, the proceedings against petitioner/A1 in