Allowed

MD Nazimuddin v. the State of Jharkhand

Jharkhand HC17 Apr 2023Cr.M.P./333/2022

Case brief

AI extract

What is this about?

High Court quashed criminal proceedings under Sections 420, 504, 506 IPC instituted for supplying inferior quality plywood. The court held the dispute arose purely from breach of contract without dishonest or fraudulent intent at the time of entering the contract, amounting to a civil dispute criminalized without basis.

What did the court decide?

The Complaint Case No. 2391 of 2018 and the order taking cognizance dated 29.11.2019 were quashed and set aside.

MD Nazimuddin Vs the State of Jharkhand — Contract and Commercial Disputes | Jharkhand HC (2023)

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Cr.M.P. No.333 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 333 of 2022

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Md. Nazimuddin S/o Md. Mohiuddin, aged about 44 years, residents of H.No. 12 Road No.16, Jawahar Nagar, P.O. Azadnagar, P.S. Mango, Dist. East Singhbhum at Jamshedpur

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.... Petitioner

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Versus

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The State of Jharkhand

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Salman Al Sayed, s/o Sayed Ahmad, residents of Azad Bangla, Itki, P.O. & P.S. Itki Dist. Ranchi

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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. Jitesh Kumar, Advocate For the State : Mr. Bhola Nath Ojha, Addl. P.P.

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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 Complaint Case No.2391 of 2018 and order taking cognizance dated 29.11.2019 passed by Judicial Magistrate 1^st Class, Ranchi passed in Complaint Case No.2391 of 2018 under Sections 420, 504 and 506 of Indian Penal Code.

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The allegation against the petitioner is that the petitioner supplied inferior quality of ply wood to the opposite party no.2complainant.

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Cr.M.P. No.333 of 2022

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It is submitted by the learned counsel for the petitioner that admittedly, the petitioner has supplied the ply wood; there is no allegation that the petitioner had any dishonest or fraudulent intention and the dispute between the parties is basically a civil dispute. In support of its case, the learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court of India in the case of Deepak Gaba & Ors. vs. State of Uttar Pradesh & Anr. reported in (2023) 3 SCC 423 , paragraph nos.28, 30, 32 and 34 of which reads as under:-

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“28. We are, therefore, of the opinion that the assertions made in the complaint and the presummoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , as it refers to earlier case laws in copious detail.

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30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; and Mehmood Ul

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Cr.M.P. No.333 of 2022

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Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124.]

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32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken. 34. We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713]; Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426.] Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued.”

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Learned counsel for the petitioner also relied upon the judgment of Hon’ble Supreme Court of India in the case of Mitesh Kumar J.

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Sha vs. State of Karnataka reported in 2021 SCC OnLine SC 976 , paragraph nos. 40 and 47 of which reads as under:-

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“40. Applying this dictum to the instant factual matrix where the key ingredient of having a dishonest

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Cr.M.P. No.333 of 2022

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or fraudulent intent under sections 405, 419 and 420 is not made out, the case at hand, in our considered opinion is a suitable case necessitating intervention of this Court.

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Whether the dispute is one of entirely civil nature and therefore liable to be quashed?

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47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety.”

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The Learned Additional Public Prosecutor on the other hand vehemently opposed the prayer for quashing the entire criminal proceeding and submits that there is ample material in the record to suggest the commission of the offence by the petitioner. It is fairly submitted by the learned Additional Public Prosecutor that there is no specific allegation of any dishonest intention on the part of the petitioner at the time of entrustment of money to him by the complainant for the purpose of supplying plywood.

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Having heard the submissions made at the Bar and after going

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through the materials in the record, it is pertinent to mention here that it is a settled principle of law that a mere breach of contract does not necessarily amount to cheating and it is also a settled principle of law that the guiding factor which converts a breach of contract into an offence of cheating is the dishonest and fraudulent intention of the accused at the moment he induces the complainant to enter into the contract as has been reiterated by the Hon’ble Supreme Court of India in the case of Vesa Holdings Private Limited & Another vs. State of Kerela & Others reported in (2015) 8 SCC 293 paragraph-12 of which reads as under:-

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Cr.M.P. No.333 of 2022

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12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out.

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Now coming to the facts of the case, there is no allegation of any criminal intimidation having been committed by the petitioner, in the statement on solemn affirmation of the complainant or the statement of the witnesses examined during the enquiry and there is also no allegation against the petitioner that he has any dishonest intention at the time of entrustment of money to him by the complainant for supply of the materials. It is also admitted fact that the petitioner has in fact supplied the materials but not up to the satisfaction of the complainant-opposite party no.2.

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In view of this undisputed fact as also the fact that the dispute between the parties is basically a civil dispute and a criminal colour has been given to a civil dispute by the complainantopposite party no.2, hence, the continuance of this criminal proceeding, in the considered opinion of this Court, will amount to abuse of the court and in the interest of justice the same be quashed.

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6 Cr.M.P. No.333 of 2022

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Considering the aforesaid facts, the entire Complaint Case No.2391 of 2018 and order taking cognizance dated 29.11.2019 passed by Judicial Magistrate 1^st Class, Ranchi passed in Complaint Case No.2391 of 2018 is quashed and set aside.

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In the result, this criminal miscellaneous petition is allowed.

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The interim order, if any, passed in this case stands vacated.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 17^th April, 2023 AFR/Sonu-Gunjan/-

MD Nazimuddin v. the State of Jharkhand

Case brief

What is this about?

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MD Nazimuddin v. the State of Jharkhand

Case brief

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What did the court decide?

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