Allowed

Dhirendra Kumar Singh Alias Dheeraj Kumar Singh v. the State of Jharkhand

Jharkhand HC23 Mar 2023Cr.M.P./2217/2021

Case brief

AI extract

What is this about?

High Court quashed FIR against bank officers for alleged cheating and criminal breach of trust regarding a cancelled property auction, holding no offence made out and actions protected under SARFAESI Act.

What did the court decide?

FIR of Lohsinghna P.S. case no. 13 of 2019 and entire criminal proceedings pending in ACJM, Hazaribagh quashed and set aside.

Dhirendra Kumar Singh Alias Dheeraj Kumar Singh Vs… — Banking and Recovery | Jharkhand HC (2023)

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Cr.M.P. No. 2217 of 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2217 of 2021

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Dhirendra Kumar Singh @ Dheeraj Kumar Singh, son of Mr. RCPS Keshri, aged about 51 years, resident of Raod No. 10, Magadh Colony, Chanduli Gaya, P.O. & P.S.- Chanduli, DistrictGaya, 823001, State- Bihar

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Satyendra Mishra @ Satendra Mishra, son of Mr. Bhola Nath Mishra, aged about 51 years, resident of Sector – 4, Bokaro Steel City, P.O. & P.S.- Bokaro, District- Bokaro-827001, Jharkhand

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…... Petitioners

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Versus

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The State of Jharkhand

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Sanjay Kumar, S/o Late Mahavir Shaw, aged about 47 years, R/o Mandai Road, Noora, P.O.- Sadar, P.S.- Lohsinghna, DistrictHazaribag, Pin- 825301, Jharkhand

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….. Opposite Parties

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For the Petitioners :Mr. Sumit Prakash, Adv. For the State :Ms. Priya Shrestha, Spl. PP For the Opposite Party no. 2 : Mr. Awnish Ranjan Mishra, 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.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this court under Section 482 CrPC, with a prayer for quashing the FIR of Lohsinghna P.S. case no. 13 of 2019 registered for the offence punishable under Sections 409, 418, 420 and 120(B) of Indian Penal Code and the entire criminal proceedings arising out of the same, pending in the court of learned ACJM, Hazaribagh.

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The facts of the case is that the complainant –opposite party no. 2 instituted a complaint alleging therein that the petitioner no. 1, who being the Branch Manager at Punjab National Bank, Hazaribagh branch and the petitioner no. 2- being the Chief Manager of Punjab National Bank, Bokaro Regional office and the authorized officer under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as SARFAESI Act, 2002), was

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Cr.M.P. No. 2217 of 2021

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involved in conducting E-auction regarding sale of mortgaged land covered under Title deed. The complainant participated in the said E-auction on 13.09.18 after paying earnest money of bid amount of Rs. 35,000/- to Punjab National Bank, Hazaribagh. The bid of the complainant of Rs. 4,50,000/- for purchase of the property was accepted by the Punjab National Bank. Subsequently, the complainant deposited all the amount of bid amount to Punjab National Bank, Hazaribagh branch within 15 days and the sale certificate was to be issued in the name of the complainant but when the complainant visited the Punjab National Bank, Hazaribagh branch, the petitioner no. 1 in criminal conspiracy with the petitioner no. 2, evasively told the complainant to manage the bank otherwise they will cancel the bid, taking plea of technical error of e-auction. The complainant submitted an application to the petitioner no. 1 to issue sale certificate, execute registered deed of sale but the petitioner no. 1 did not give him any acknowledgment of receipt of the said letter and ultimately, told the complainant that as some other bidder who is ready, but, he could not participate in the bid due to technical error, so they will cancel the auction sale dated 13.09.2018. The complainant gave legal notices to the petitioners, but the same was in vain.

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Learned counsel for the petitioners submits that the petitioners have acted bonafide and in good faith in their capacity of Branch Manager and authorized officer respectively of Punjab National Bank, on the date of alleged occurrence while exercising the rights of the bank as secured creditor under the SARFAESI Act, 2002 and they are protected under section 32 of the SARFAESI Act, 2002, which reads as under :

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“ Section 32. Protection of action taken in good faith . No suit, prosecution or other legal proceedings shall lie against [the Reserve Bank or the Central Registry or any secured creditor or any of its officers for anything done or omitted to be done in good faith under this Act.” (Emphasis supplied)

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It is next submitted by learned counsel for the petitioners that there were two bidders, one was the complainant and the other

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Cr.M.P. No. 2217 of 2021

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was Amar Kumar Yadav. During the auction time, Amar Kumar Yadav called the Nodal Officer of Bank intimating him that though he was trying to place his amount higher than the bid of the complainant- informant but the system was not allowing him for the same and ultimately he tried to submit the bid of amount of Rs. 5,50,000/- but it was not accepted and the system showing as invalid bid price. Later on, after examining the matter it was found that the complaint of the complainant – Amar Kumar Yadav was correct. Therefore, the informant was informed that after issuance of letter of acceptance of bid as it came to notice of the bank that due to the technical error in auction portal, access of other bidder in placing the bid got restricted and accordingly, it was decided not to confirm the sale of property. The bank expressed its regret and informed and requested the complainant – informant – opposite party no. 2 of this case, to participate in ensuing E-auction, whenever the property will be put to auction again in near future. It is next submitted by learned counsel that on the date of occurrence, several other properties were also put to E-auction sale where similar type of complaints were received in respect of prospective bidders also. It is next submitted that the bank after cancellation of E-auction, vide letter dated 28.09.2018 sent the demand draft of Rs. 4,50,000/- being the bid amount to the informant, however, the informant refused to accept the aforesaid letter and the same was returned with a remark ‘refused’. Though on the one hand, the informant refused to accept the demand draft, on the other hand, he lodged the FIR to put undue pressure on the petitioners by misusing the process of the court when legal option of approaching to Debt Recovery Tribunal under Section 17 of SARFAESI Act was available to him. It is next submitted by learned counsel for the petitioners that the petitioner no. 1 had no role in conducting the auction and cancelling the same and he has been implicated only because he on the relevant date, he was Branch Manager, of Punjab National Bank, Hazaribag and the petitioner no. 2 has been implicated only in view of technical problem and genuineness of the

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Cr.M.P. No. 2217 of 2021

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complaint of the bidder to give equal chance to each and every prospective bidders, in order to fetch highest bid price for the bank, the petitioner no. 2 used his right in good faith as authorized officer of the bank. It is next submitted that, in the counter affidavit filed by the State in ABA No. 3712 of 2020, it has been mentioned that prima facie it appears that the complaint of the technical error in auction process and cancellation of the auction process appears to be true. Learned counsel for the petitioners further submits that Section 32 of the SARFAESI Act, 2002 protects the action taken in good faith and prohibits any suit, prosecution or other legal proceeding interalia against any of the officers of the secured creditor for anything done or omitted to be done in good faith. It is next submitted by learned counsel that in order to constitute the offence punishable under Section 409 of the IPC, there has to be a criminal breach of trust and in this case, the complaint contends that the money deposited with the bank is the property, entrusted with the bank and, the undisputed fact remains that the bank has already returned the money deposited by the informant – complainant with the bank to the tune of Rs. 4,50,000/- which the opposite party no. 2 refused to receive and even today also, the bank is still ready and willing to return money if and when, the informant – complainant approaches the bank, hence, no offence under Section 409 of the IPC can be made out against the petitioners in absence of element of criminal breach of trust. So far as offences punishable under Sections 418, 420 read with Section 120B of the IPC is concerned, it is submitted by learned counsel for the petitioners that breach of contract does not necessarily amount to cheating, as there is no allegation against the petitioners of any dishonest or fraudulent intention at the moment, they went for the E-auction of the property, hence, no offence punishable under Section 418 or 420 read with the Section 120B IPC is made out against the petitioners either.

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Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court in the case of K Virupaksha and another

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Cr.M.P. No. 2217 of 2021

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vs. State of Karnataka and another reported in (2020) 4 SCC 440 , para 15 and 17 of which reads as under:-

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“15. The Sarfaesi Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower. In such circumstance, as already taken note of by the High Court in writ proceedings, if there is any discrepancy in the manner of classifying the account of the appellants as NPA or in the manner in which the property was valued or was auctioned, DRT is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under Section 13 of the Sarfaesi Act. This view is fortified by the decision of this Court in Indian Overseas Bank v. Ashok Saw Mill [Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 : (2009) 3 SCC (Civ) 403] wherein it is held as hereunder : (SCC pp. 375-76, paras 34-37)

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“34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of sub-section (4) of Section 13.

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35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub-section (3) thereof.

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36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee.

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37. The consequences of the authority vested in the DRT under subsection (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr Gopalan and Mr Altaf Ahmed that the DRT has no jurisdiction to deal with a post-Section 13(4) situation, cannot be accepted.”

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17. The appellants herein had also referred to the provision as contained in Section 32 of the Sarfaesi Act which provides for the immunity from prosecution since protection is provided thereunder for the action taken in good faith. The learned Senior Counsel for the complainant has in that regard referred to the decision of this Court in Army Headquarters v. CBI [Army Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88] to contend that the defence relating to good faith and public good are questions of fact and they are required to be proved by adducing evidence. Though on the proposition of law as enunciated therein there could be no cavil, that aspect of the matter is also an aspect which can be examined in the proceedings provided under the Sarfaesi Act. In a circumstance, where we have already indicated that a criminal proceeding would not be sustainable in a matter of the present nature, exposing the appellants even on that count to the proceedings before the investigating officer or the criminal court would not be justified.”

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Cr.M.P. No. 2217 of 2021

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It is further submitted by learned counsel for the petitioners that the protection provided under Section 32 of the SARFAESI Act, can be pressed in service in appropriate cases, for quashing the FIR and in this respect, learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287, para 27 and 33 of which reads as under :

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“27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the Sarfaesi Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.”

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33. At this juncture, we may fruitfully refer to Section 32 of the Sarfaesi Act, which reads as follows:

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“32.Protection of action taken in good faith.—No suit, prosecution

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or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.”

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In the present case, we are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC. It is because Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needless to emphasise, the legislative mandate has to be kept in mind.”

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Learned counsel for the petitioners further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Anand Kumar Mohatta and Another. Vs. State (NCT of Delhi) Department of Home and another reported in (2019) 11 SCC 706, para 14 to 16 of which reads as under:

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“14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] , this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16)

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Cr.M.P. No. 2217 of 2021

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“16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.

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16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.”

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and submits that the FIR of Lohsinghna P.S. case no. 13 of 2019 registered for the offence punishable under Sections 409, 418, 420 and 120(B) of Indian Penal Code and the entire criminal proceedings arising out of the same, pending in the court of learned ACJM, Hazaribagh be quashed.

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Learned Special PP and learned counsel for the opposite party no. 2, on the other hand, vehemently opposes the prayer for quashing the FIR and entire criminal proceeding and submits that the FIR shows the gravity of the offence and the complicity of the petitioners in the offence, hence, this petition being without any merit be dismissed.

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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 it is settled principle of law, as has been held by the Hon’ble Supreme court of India in the case State of Haryana and others vs Ch.Bhajan Lal and others reported in 1992 Supp (1) SCC 335 wherein in the facts of that case, the Hon’ble Supreme court of India extracted and reproduced the category of the cases, by way of illustration wherein inter alia the power of High Court under section 482 of the Code of Criminal Procedure, could be exercised either to prevent the abuse of process of court or

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Cr.M.P. No. 2217 of 2021

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otherwise to secure the ends of justice as mentioned in para 102, 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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Cr.M.P. No. 2217 of 2021

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Now coming to the facts of the cases, it is a settled principle of law that the distinction between cheating and breach of contract is a thin line. The guiding factor which converts a breach of contract into an offence of cheating, is dishonest or fraudulent intention of the accused, at the moment he induces the complainant to enter into the contract, as has been held by the Hon’ble Supreme Court of India in the case of Hari Prasad Chamaria vs. Bishun Kumar Surekha and others reported in AIR 1974 SC 301, para 3 and 4 of which reads as under :-

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“3. The complaint came up for hearing before the Subdivisional Magistrate Samastipur and on August 6, 1968 he took cognizance of the offence under S. 420 Indian Penal Code. It was directed that the process should issue against the respondents. The respondents thereafter approached the High Court under S. 561A of the Code of Criminal Procedure. The High Court was of the view that the case of the appellant was based upon contract. Mere breach of contract, in the opinion of the High Court, could not give rise to criminal prosecution. The appellant, it was further observed, had a remedy in the Civil Court and he could not be allowed to fight the matter in Criminal Court. In the result, the criminal proceedings against the respondents were quashed.

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4. We have heard Mr. Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000 by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating.” (Emphasis supplied)

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After carefully going through the complaint filed before the magistrate, which upon being referred to the police, under Section 156(3) of Cr.P.C., the FIR has been registered, there is nothing in the complaint to show that the petitioners had dishonest or fraudulent intention at the time of the parting of money by the complainant to the tune of Rs. 4,50,000/- nor there is any allegation that the petitioners made any representation to the

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Cr.M.P. No. 2217 of 2021

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complainant which the petitioners knew to be false. Further, there is nothing to indicate that the petitioners have induced the complainant to pay them Rs. 4,50,000/- by deceiving him, but here the undisputed case of the complainant is that he transferred the money to the account of Punjab National Bank, which is a body corporate but the body corporate Punjab National Bank, has not been arrayed as an accused in the FIR. It is the not the case of the complainant that he entrusted the money, either to petitioner no. 1 or the petitioner no. 2.

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In this backdrop, this court has no hesitation in holding that no offence punishable under Section 418 or 420 read with Section 120B of the IPC is made out against the petitioners. Similarly, in the absence of any misappropriation of any property by the petitioners, and in the absence of any allegation that the money entrusted by the complainant to the body corporate Punjab National Bank has come to the domain of the petitioners, no offence of criminal breach of trust or for that matter the offence punishable under Section 409 of IPC is made out against the petitioners either. Besides, as the undisputed fact remains that the petitioners being the officers of the secured creditor were acting under the provisions of SARFAESI Act, 2002 by holding an auction and it is crystal clear that the alleged acts against them was done by them in good faith for securing best available price for the auctioned property and in view of the technical snag a re-auction has to be done; certainly it is the case where section 32 of the SARFAESI Act, 2002 protects the petitioners from any suit, prosecution or other legal proceedings while discharging their official duty in good faith.

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Under such circumstances, this court is of the considered view that the allegations made against 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 petitioners, thus, this is a case covered under Clause 1,3 and 6 of the case of State of Haryana and others vs Ch.Bhajan Lal and others (supra) . Thus continuation of the criminal proceeding against the

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petitioners in connection with Lohsinghna P.S. case no. 13 of 2019 , will amount to an abuse of process of court and this is a fit case where in the interest of justice; the FIR of Lohsinghna P.S. case no. 13 of 2019 registered for the offence punishable under Sections 409, 418, 420 and 120(B) of Indian Penal Code and the entire criminal proceedings arising out of the same proceeding, pending in the court of learned ACJM, Hazaribag be quashed and set aside.

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Accordingly the FIR of Lohsinghna P.S. case no. 13 of 2019 registered for the offences punishable under Sections 409, 418, 420 and 120(B) of Indian Penal Code and the entire criminal proceedings arising out of the same proceeding, pending in the court of learned ACJM, Hazaribagh 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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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 23rd March, 2023 Smita /AFR

Dhirendra Kumar Singh Alias Dheeraj Kumar Singh v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Dhirendra Kumar Singh Alias Dheeraj Kumar Singh v. the State of Jharkhand

Case brief

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What the court decided

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