Allowed

Pankaj Dey v. the State of Jharkhand

Jharkhand HC11 Apr 2023Cr.M.P./1107/2018

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed criminal proceedings for cheating. It held that the dispute was purely civil as there was no evidence of dishonest misappropriation or entrustment of property, and continuing the criminal trial would amount to an abuse of court process.

What did the court decide?

The entire criminal proceedings in connection with PCR Case No. 643 of 2016 and the impugned order dated 06.03.2018 were quashed and set aside.

Pankaj Dey Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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1 Cr.M.P. No. 1107 of 2018

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1107 of 2018

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Pankaj Dey, aged about 24 years, son of Parimal Chandra Dey, resident of Simanta Pally, P.O. and P.S.- Rupnarayanpur, DistrictBurdwan (West Bengal) ... Petitioner

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Versus

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The State of Jharkhand

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Dhirendra @ Munna Singh, son of Parshuram Singh, resident of village – Hanshipahari, P.O and P.S.- Mihijam , District- Jamtara

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….. Opposite Parties

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For the Petitioner : Mr. Kushik Sarkhel, Adv. For the State : Mr. A.P. Topno, Addl.PP For the O.P. No. 2 : Mr. Deb Nandan Rajak , Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties. Learned counsel for the petitioner files the supplementary affidavit today. Keep the same in the record.

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This Criminal Miscellaneous Petition has been filed with a prayer for quashing the entire criminal proceedings in connection with the P.C.R. Case No. 643 of 2016 including the impugned order dated 06.03.2018 passed by the learned SDJM, Jamtara, whereby and where under, the learned SDJM, Jamtara, found prima facie case against the present petitioner for the offence punishable under Section 406 of Indian Penal Code.

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The allegation against the petitioner is that between the year 2012 -15, the petitioner came in contact with the informant and supplied bricks worth Rs. 2,40,000/- to the petitioner for construction of his factory and supplied chimney bricks to the petitioner worth Rs. 3,84,800/- after purchasing the same from the market and later on, also paid Rs. 2,00,000/-. It is also the case of the complainant that the petitioner entered into partnership by way of registered deed but when the complainant asked for money, the petitioner did not pay the same to him, hence, it is

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Cr.M.P. No. 1107 of 2018

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alleged that the petitioner has cheated the complainant of Rs. 9,50,000/-. The complainant filed the complaint petition no. 38 of 2015, which was referred to the police under Section 156 (3 ) Cr.P.C. and basing upon the same, Mihijam P.S. case no. 275 of 2015 was registered. The police after investigation of the case submitted Final Form mentioning that the dispute between the parties is civil dispute. Thereafter, the complainant filed Protest Petition vide PCR case no. 243 of 2015 and on the basis of the Protest Petition, statement on Solemn Affirmation of the complainant and statement of two enquiry witnesses on oath, learned SDJM, Jamatara, found that the prima facie case for the offences punishable under Section 406 IPC is made out and directed for issuance of summons.

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Learned counsel for the petitioner submits that the allegation as made out against the petitioner, even if accepted to be true in its entirety, still no offence punishable under Section 406 of IPC is made out against the petitioner, rather the allegation made out is a purely civil dispute between the parties. It is next submitted that there is no chit of paper filed by the complainant to show any entrustment of money nor any date of entrustment has been mentioned anywhere and the allegations against the petitioner is general and omnibus in nature and the complaint has been filed to blackmail the petitioner to fetch illegal gratification. It is next submitted that though in his statement under Solemn Affirmation, the complainant has stated that there is registered partnership deed but the same is out and out false, and for the same, the complainant has not filed any document to suggest that there was ever any partnership between the parties.

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Relying upon the judgment of Hon’ble Supreme court of India in the case of Deepak Gaba and Others vs. State of Uttar Pradesh and Another reported in (2023) 3 SCC 423 , paragraph 15 of which reads as under:

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“

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15. For Section 405 of the IPC to be attracted, the following have to be established:

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(a) the accused was entrusted with property, or entrusted with dominion over property;

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Cr.M.P. No. 1107 of 2018

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(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and

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(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

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It is next submitted by learned counsel for the petitioner that the there is no allegation against the petitioner of dishonest misappropriation of money and in this respect, learned counsel for the petitioner next relies upon the judgment of Hon’ble Supreme court of India in the case of Vijay Kumar Ghai and others v. State of West Bengal and others , reported in (2022) 7 SCC 124 , para 30 of which reads as under :

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30. In Sudhir Shantilal Mehta v. CBI [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646] it was observed that the act of criminal breach of trust would, inter alia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.

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Hence, it is submitted by learned counsel for the petitioner that entire criminal proceedings in connection with the P.C.R. Case No. 643 of 2016 including the impugned order dated 06.03.2018 passed by the learned SDJM, Jamtara be quashed.

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Learned Addl. PP and learned counsel for the opposite party no. 2 on the other hand vehemently oppose the prayer for quashing the entire criminal proceedings in connection with the P.C.R. Case No. 643 of 2016 including the impugned order dated 06.03.2018 passed by the learned SDJM, Jamtara. Leaned counsel for the opposite party no. 2 submits that besides the complainant, two enquiry witnesses have supported the case of the complainant but it is fairly submitted by the learned counsel for the opposite party no. 2 that there is no material in the complaint or the statement of the complainant or the enquiry witnesses as to on which date, the entrustment of property was made to the petitioner, nor there is any document in respect of the same.

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Cr.M.P. No. 1107 of 2018

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the Hon’ble Apex court in the celebrated judgment of the State of State of Haryana and others v. Bhajan Lal and others r eported in 1992 Supp. (1) SCC 335 considered the detailed scope of power of High Court under Section 482 Cr.P.C. to quash the FIR, paragraph 102 of which reads as under :

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102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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5 Cr.M.P. No. 1107 of 2018

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After going through the materials in the record, this court is of the considered view that in absence of any allegation of any dishonest misappropriation of bricks, allegedly, supplied by the complainant albeit for which, there is no document with the complainant or lending of Rs. 2,00,000/- again for which, the complainant has no documents, in the facts of the case, the continuation of this criminal proceeding will amount to abuse to process of court; as the dispute between the parties, is at best a civil dispute. Hence, for the ends of justice, this court is inclined to quash the entire criminal proceedings in connection with the P.C.R. Case No. 643 of 2016 including the impugned order dated 06.03.2018 passed by the learned SDJM, Jamtara.

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Accordingly, the entire criminal proceedings in connection with the P.C.R. Case No. 643 of 2016 including the impugned order dated 06.03.2018 passed by the learned SDJM, Jamtara is quashed and set aside.

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In the result, this Criminal Miscellaneous Petition is allowed and consequently, the interim order, passed earlier stands vacated.

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High Court of Jharkhand, Ranchi Dated, the 11^th April, 2023 Smita /AFR

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(Anil Kumar Choudhary, J.)

Pankaj Dey v. the State of Jharkhand

Case brief

What is this about?

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Pankaj Dey v. the State of Jharkhand

Case brief

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