Dismissed

Samsher Alam v. the State of Jharkhand

Jharkhand HC15 Mar 2023Cr.M.P./2419/2022

Case brief

AI extract

What is this about?

The High Court at Ranchi dismissed a petition under Section 482 Cr.P.C. seeking to quash criminal proceedings for cheating and forgery. The Court held that specific allegations of fraudulent intention and suppression of material facts distinguished this case from precedents involving civil disputes, making it a fit case for trial.

What did the court decide?

Petition dismissed; interim order dated 19.09.2022 vacated.

Samsher Alam Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2023)

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Cr.M.P. No.2419 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2419 of 2022

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Samsher Alam, aged about 53 years, son of Md. Nazir, Resident of Purani Basti, Post Office and Police Station- Jugsalai, Jamshedpur, Dist.Singhbhum East. .... Petitioner

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Versus

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The State of Jharkhand

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Om Prakash Singh, son of late Ramesh Singh, Resident of House No.32, Kharangajhar, Near Hanuman Mandir, Post Office and Police Station- Telco Jamshedpur, Dist.- East Singhbhum

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…. Opp. Parties

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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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For the Petitioner : Mr. Praveen Shankar Dayal, Advocate For the State : Mrs. Vandana Bharti, Addl. P.P. For O.P. No.2 : Mr. Rajendra Prasad Gupta, Advocate

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By the Court:-

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Heard the parties.

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This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceedings and prosecution in connection with Telco P.S. Case No.100 of 2019 corresponding to G.R. No.1964 of 2021 registered under sections 406/420/467/468/471 and 120B of Indian Penal Code pending in the court of Judicial Magistrate 1^st Class, Jamshedpur.

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The allegation against the petitioner made out in the F.I.R. is that the petitioner is the owner of the Sam Builders and Developers and the co-accused- Madan Kumar Jha cheated the informantopposite party no.2 by entering into the agreement with the informant to sell a flat for Rs.11,00,000/- on the basis of forged

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Cr.M.P. No.2419 of 2022

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documents and took Rs.10,00,000/- as advance and the further allegation made in the F.I.R. is that later on the co-accused- Madan Kumar Jha took the informant to the petitioner of this criminal miscellaneous petition namely Samsher Alam and the petitioner in criminal conspiracy with the co-accused- Madan Kumar Jha induced the informant to pay Rs.20,00,000/- and promised him to allot three flats in the building to be constructed by the petitioner and for inducing the informant, the petitioner showed documents regarding the building to be constructed by him which will be handed over to the informant but later on the informant found out that the land upon which the petitioner was to construct the building out of which three flats were to be given to the informant has been seized by the bank consequent upon non-payment of the loan and the work of the building has been stopped. There is also allegation in the F.I.R. that both the petitioner and the co-accused suppressing the material facts and on the basis of the forged documents in criminal conspiracy with each other has cheated the informant and committed criminal breach of trust of Rs.30,00,000/-.

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Mr. Praveen Shankar Dayal, learned counsel for the petitioner submits that the allegation against the petitioner are all false and the co-accused- Madan Kumar Jha is the owner of the land in question and after entering into the agreement with co-accusedMadan Kumar Jha, the petitioner’s firm namely Sam Builders and Developers has started the construction work. It is then submitted by Mr. Dayal that the co-accused- Madan Kumar Jha took loan

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Cr.M.P. No.2419 of 2022

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from Punjab National Bank by mortgaging land in question but as the co-accused defaulted in repayment of the loan to the bank hence, the bank has seized and took possession over the land and subsequently, auctioned it. It is further submitted by Mr. Dayal that the petitioner has no intention to cheat the informant of this case. Mr. Dayal further submits that the petitioner admits that he has received Rs.10,00,000/- from the informant which he has given on 5% interest and till the date of filing of this criminal miscellaneous petition, the petitioner has paid Rs.9,00,000/- to the informant. It is further submitted by Mr. Dayal that the dispute between the parties is purely civil and commercial in nature and the co-accused has been granted regular bail. It is next submitted by Mr. Dayal that the petitioner was given the privilege of anticipatory bail by this Court in this case on the condition of depositing Rs.20,00,000/-. Mr. Dayal relied upon the judgment of a coordinate Bench of this Court in Cr.M.P. No.3227 of 2017 dated 11.07.2022 wherein the coordinate Bench relied upon the judgment of Hon’ble Supreme Court of India in the case Vijay Kumar Ghai & Ors. vs. State of West Bengal & Ors. reported in 2022 SCC OnLine SC 344 , paragraph no.25 and 38 of which reads as under:-

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“25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that : (Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6

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Cr.M.P. No.2419 of 2022

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SCC 736 : (2006) 3 SCC (Cri) 188] , SCC p. 749, para 13)

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“13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.”

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38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants.”

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and in the facts of that case, where the opposite party no.2 of that

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case already approached the Consumer Forum, Ranchi under the provisions of Consumer Protection Act, the coordinate Bench of this Court quashed the criminal proceedings.

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It is lastly submitted by the learned counsel for the petitioner that the entire criminal proceeding of this case, as prayed for by the petitioner, be quashed.

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Learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer to quash the F.I.R and the entire criminal proceeding. It is next submitted that the petitioner has the fraudulent intention since the beginning and even though he undertook to pay Rs.20,00,000/and on that basis he was given the privilege of anticipatory bail vide order dated 03.02.2020 but till now, he has not surrendered before the learned trial court nor paid the amount undertaken by

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Cr.M.P. No.2419 of 2022

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him to be paid to the informant. It is further submitted by the learned counsel for the opposite party no.2 that the petitioner has sworn an affidavit before the Notary Public, Jamshedpur on 24.04.2018, wherein, he has accepted receipt of Rs.20,00,000/through R.T.G.S. from the informant on 19.02.2017. It is then submitted by learned counsel for the opposite party no.2 that the petitioner was well aware that the land was mortgaged by the coaccused to the Punjab National Bank, Jamshedpur but the petitioner along with co-accused in criminal conspiracy suppressed the material facts of loan having been taken by the coaccused by mortgaging the said land and induced the opposite party no.2 to part with huge amount of money. Mr. Gupta-the learned counsel for the opposite party no.2 further submits that the fraudulent activity of the petitioner is apparent from the fact that the petitioner has taken money from several parties and is in the habit of cheating various persons including the informant by concealing the material fact that the land in question is free from all encumbrances though he was very much aware at the time of making such inducement that the land was mortgaged. Hence, it is submitted that this is not a fit case where the entire criminal proceeding is to be quashed.

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Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that Courts ought not enter into the merits of the allegations or trench upon the power of the investigating agency to investigate into allegations involving the

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Cr.M.P. No.2419 of 2022

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commission of a cognizable offence; as has been reiterated by the Hon’ble Supreme Court of India in the case of Shambhu Kharwar vs. State of Uttar Pradesh and Another reported in 2022 SCC

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OnLine SC 1032 , paragraph no.7 of which reads as under:-

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“7. The parameters governing the exercise of the jurisdiction of Section 482 of CrPC are well-settled and have been reiterated in a consistent line of decisions of this Court. In Neeharika Infrastructure v. State of Maharashtra, a three Judge Bench of this Court which one of us was a part of (D.Y. Chandrachud J.), reiterated the parameters laid down in R.P. Kapur v. State of Punjab and State of Haryana v. Bhajan Lal and held that while the Courts ought to be cautious in exercising powers under Section 482, they do have the power to quash. The test is whether or not the allegations in the FIR disclose the commission of a cognizable offence. The Court does not enter into the merits of the allegations or trench upon the power of the investigating agency to investigate into allegations involving the commission of a cognizable offence.”

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As has been observed by the Hon’ble Supreme Court of India in

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the case of Vijay Kumar Ghai & Ors. vs. State of West Bengal & Ors. (supra), the distinction between mere breach of contract and cheating is a fine one. In this case, there is specific allegation against the petitioner of the petitioner cheating and having committed forgery by leading the informant to believe that the land in question, upon which it was projected by the petitioner that he is going to construct the building is free from encumbrances, though it is alleged that the petitioner at the time of making such inducement to the informant was very much aware about the land being encumbured having been mortgaged with the bank in respect of repayment of loan taken by co-accused from the bank.

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Cr.M.P. No.2419 of 2022

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This Court is of the considered view that the facts of Mukesh Kumar Sinha vs. State of Jharkhand & Anr. in Cr.M.P. No.3227 of 2017 dated 11.07.2022 are different from the facts of this case as in this case, as there is allegation of dishonest and fraudulent intention of the petitioner, hence the same is of no help to the petitioner of this case.

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Accordingly, this Court is of the considered view that this is not a fit case where the entire criminal proceedings and prosecution in connection with Telco P.S. Case No.100 of 2019 corresponding to G.R. No.1964 of 2021 pending in the court of Judicial Magistrate 1^st Class, Jamshedpur be quashed.

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Thus, this petition being without any merit is dismissed.

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12. In view of the dismissal of this criminal miscellaneous petition, the interim order dated 19.09.2022 which was continued from time to time is vacated.

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High Court of Jharkhand, Ranchi Dated the 15^th March, 2023 AFR/Sonu-Gunjan/-

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(Anil Kumar Choudhary, J.)

Samsher Alam v. the State of Jharkhand

Case brief

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Samsher Alam v. the State of Jharkhand

Case brief

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