Allowed

Sanjay Kakkar v. the State of Jharkhand and Anr.

Jharkhand HC21 Jun 2023Cr.M.P./2258/2014

Case brief

AI extract

What is this about?

Petitioner sought quashing of orders in criminal proceedings alleging cheating over partnership firm investments. The High Court held criminality cannot be made out due to lack of cheating intent and cited precedent on civil contract breach.

What did the court decide?

Quashed the entire criminal proceeding including order taking cognizance dated 17.05.2013 in C.P. Case No. 315 of 2013. Submitted that any proceeding initiated by parties regarding the dispute will be

Sanjay Kakkar Vs the State of Jharkhand… — Contract and Commercial Disputes | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 2258 of 2014

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Sanjay Kakkar ….. .... …Petitioner Versus 1.The State of Jharkhand 2.Sanjeet Kumar ….. Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner: Mr. Shailesh Kumar Singh, Advocate Mr. Abhijeet Kumar Singh, Advocate For the State : Mr. Pankaj Kr. Mishra, A.P.P. For the O.P. No. 2 : Mr. N.K. Sahani, Advocate

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M/s. Shridhi Priya, Dimpy Halder, Advocates

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5/ Dated:-21.06.2023

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Heard Mr. Shailesh Kumar Singh, learned counsel for the petitioner, Mr. Pankaj Kr. Mishra, learned counsel for the State and Mr. N.K. Sahani, learned counsel for the O.P. No. 2.

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This petition has been filed for quashing the order dated 17.05.2013 in connection with C.P. Case No. 315 of 2013, whereby cognizance has been taken under sections 406, 420, 120(B) of the I.P.C., pending in the Court of learned Judicial Magistrate, Ist Class, Bokaro.

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The complaint case has been filed alleging therein that there was one partnership firm in the name in style of M/s. Patiyala Peg Bar & Restaurant. The complainant Sanjeet Kumar and the two persons Sanjay Kakkar and Sudhir Kumar who are accused in the complaint case were the partners of the said firm.

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It was alleged that accused no.1 and 2 who are Sanjay Kakkar and Sudhir Kumar induced the complainant to part with Rs. 2,85,000/- (Rs. Two lakh eighty five thousand) for being inducted as a partner in the said firm and for that the complainant agreed and paid the money and in token thereof one of the accused Sudhir

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Kumar executed a hand note.

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It was further alleged in the complaint petition that the business went on for some time but then never the accused persons paid any return to the complainant as per the partnership agreement.

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It was further alleged that a loan was taken from the Union Bank of India, which became irregular and for that the bank is pressurizing the complainant to pay back the loan amount. That in this connection the complainant send two legal notices to the accused persons but they did not reply. That on 08.02.2012 it has been alleged that the accused persons violating the partnership agreement, inducted a new partner namely Abhay Vir Batra. Thus in sum and substance the complainant has alleged that the accused persons have fraudulently taken Rs. 2,85,000/- and have not returned the same as yet.

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Mr. Shailesh Kumar Singh, learned counsel for the petitioner submits that on 06.02.2012 a tenancy agreement was executed between the petitioner and his wife on one side and the Patiyala Peg Bar and Restaurant represented by the partners on the other hand for the purpose of opening the said restaurant and bar within the premises of the petitioner. He further submits that on 07.02.2012 a deed of partnership was entered into between Sudhir Kumar, petitioner and Sanjeet Kumar-complainant for running a business in the name and style of Patiyala Peg Bar and Restaurant. He further submits that on 10.04.2012 again a fresh deed of partnership was entered into between Sudhir Kumar, the petitioner and Sanjeet Kumar-complainant for running a business in the name and style of Patiyala Peg Bar and Restaurant. He submits that the petitioner has personally invested a huge money to make the said

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restaurant a successful business. He submits that the co-accused Sudhir Kumar had received a sum of Rs. 2,85,000/- in his personal capacity for the purpose of investing the sum in the said restaurant business and he has already returned the said amount to the O.P. No.2 for which he has filed compromise petition and on the basis of compromise so far the accused namely Sudhir Kumar is concerned, case has been disposed of however the case of the petitioner is pending before the learned Court. He submits that since the business was not going on smoothly that is why the present complaint has been filed. He submits that dues of the bank has already been paid by this petitioner and receipt to this effect has been annexed as Annexure-9 page 45 to this petition. On these grounds he submits that for the civil wrong, criminal case has been filed which is against the mandate of law.

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Mr. N.K. Sahani, learned counsel for the O.P. No. 2 submits that out of 2,85,000/-only half of the amount has been received and rest amount has not been received by the O.P. No.2. He submits that by the act of the petitioner, loss has occurred. He submits that the case is made out and at this stage this Court may not quash the entire criminal proceeding.

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In view of above submissions of the learned counsel for the parties the Court has gone through the contents of complaint petition as well as order taking cognizance. It is admitted in the complaint petition itself that the petitioner, Sudhir Kumar and Complainant-Sanjeet Kumar have entered into a deed of partnership agreement. The land premises in question was of this petitioner and in the said premises Patiyala Peg Bar and Restaurant was opened by the petitioner and O.P. No. 2. The petitioner has also invested huge

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amount to make the said restaurant a successful business. Subsequently, it appears that the said business was not succeeded that is why it came to an end. It is an admitted fact that document on record suggests that Sanjeet Kumar-O.P. No.2 has received Rs. 2,85,000/- however the same has been disputed by the learned counsel for the O.P. No.2. On the basis of compromise, the case of co-accused Sudhir Kumar has been disposed of by the learned court. The document contained in annexure-9 suggests that amount due to the bank has been paid and N.O.C. has been issued by the bank. Thus, it is crystal clear that for the business transaction the said firm was opened however subsequent thereto it came to an end. It is well settled that if there is breach of contract and only for the breach of contract criminality is not made out as has been held by the Hon’ble Supreme Court in the case “ MNG Bharateesh Reddy V.

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Ramesh Ranganathan and Another” 2022 Live Law (SC) 701 .

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Further the Court finds that from the very beginning there is no intention of cheating which is one of the parameters for making out case under the definition of section 415 of I.P.C. which is lacking in the case in hand.

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In view of above facts, reasons and analysis the entire criminal proceeding including order taking cognizance dated 17.05.2013 in connection with C.P. Case No. 315 of 2013, pending in the Court of learned Judicial Magistrate, Ist Class, Bokaro, is quashed.

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This petition stands allowed and disposed of. Pending I.A, if any, stands disposed of.

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It is made clear that if any proceeding initiated by the petitioner or O.P. No.2 with regard to said dispute which is civil in

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nature will be decided in accordance with law without being

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prejudice by this order.

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(Sanjay Kumar Dwivedi, J.)

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Satyarthi/-

Sanjay Kakkar v. the State of Jharkhand and Anr.

Case brief

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Sanjay Kakkar v. the State of Jharkhand and Anr.

Case brief

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