Allowed

Mritunjoy Goswami v. State of Jharkhand

Jharkhand HC4 Jul 2023Cr.M.P./660/2020

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a petition filed under Section 482 Cr.P.C. to quash criminal proceedings for cheating and criminal breach of trust. The court held that since the petitioner repaid the amount and no dishonest intention was alleged, the essential ingredients for the offences were not made out.

What did the court decide?

The entire criminal proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015 is quashed and set aside.

Mritunjoy Goswami Vs State of Jharkhand — Cheque Dishonour | Jharkhand HC (2023)

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Cr.M.P. No.660 of 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 660 of 2020

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Mritunjoy Goswami @ Mirtunjay Goswami @ Mirtunjay Goshwami, aged about 33 years, son of Sri Amarjit Goswami, resident of Aam Bagan, Officers Colony, Kuliya Road (Uttar), Bijpur More, Kanchrapara, P.O. & P.S. Kanchrapara, Dist. 24 Parganas, State- West Bengal

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.... Petitioner

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Versus

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The State of Jharkhand

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Vikash Kumar Vishwakarma, son of Sri Bachhu Lal Vishwakarma, resident of Bank More Road, Manoharpur, P.O. & P.S. Manoharpur, Dist. Singhbhum West.

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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. Ashish Priyadarshi, Advocate For the State : Mr. Suraj Mohan, Addl. P.P. For O.P. No.2 : Mr. Ganesh Ram, 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 proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015, corresponding to G.R. No. 54 of 2015 by which cognizance has been taken by the learned S.D.J.M., Porahat at Chaibasa for the offence punishable under Sections 406 and 420 of Indian Penal Code.

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Cr.M.P. No.660 of 2020

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The allegation against the petitioner is that the petitioner took money from the complainant-informant and issued a cheque which was dishonoured because of insufficiency of funds but the requisites condition for service of legal notice within 30 days of dishonour of cheque could not be issued hence, the complainant filed the complaint which was referred to police under Section 156 (3) Cr.P.C. and the police after investigation of the case found the offence punishable under Sections 420, 406 as well as under Section 138 of Negotiable Instrument Act but the learned Magistrate took cognizance for the offence punishable under Section 406 and 420 of Indian Penal Code only against the petitioner and the petitioner has already paid the amount through cheque in installment to the informant between 03.08.2015 to 08.04.2016.

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It is submitted by the learned counsel for the petitioner that the petitioner is innocent and has falsely been implicated in this case and no offence punishable under Section 420 of Indian Penal Code is made out; as there is no allegation of any intention of the petitioner to deceive the complainant since the beginning of the transaction and as admittedly the petitioner has taken loan hence, it cannot be said that there is dishonest misappropriation of the property of the complainant by the petitioner hence, the offence punishable under Section 406 of Indian Penal Code is also not made out. It is then submitted by the learned counsel for the petitioner that at best the offence punishable under Section 138 of Negotiable Instrument Act could have been possible had the

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Cr.M.P. No.660 of 2020

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notice being issued within the stipulated time and as the petitioner has already paid the said amount even the offence punishable under Section 138 of Negotiable Instrument Act is not made out. Hence, it is submitted that the entire criminal proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015, corresponding to G.R. No. 54 of 2015 be quashed.

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Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015, corresponding to G.R. Case No. 54 of 2015 and submits that though the petitioner has paid the money but the complainant has been harassed by prosecuting the case for a considerable period of time.

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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 the essential ingredients to constitute the offence punishable under Section 420 of Indian Penal Code is that the accused must have an intention to cheat the victim from the very inspection as has been held by the Hon’ble Supreme Court of India in the case

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of the Dalip Kaur and Ors. Vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , para 10 of which reads as under :-

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“10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position

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Cr.M.P. No.660 of 2020

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in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])” (Emphasis supplied)

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Now coming to the facts of the case, there is no allegation against the petitioner of having any dishonest intention to cheat since the beginning. More so, because the petitioner has undisputedly repaid the money taken by him hence, in the considered opinion of this Court, no offence punishable under Section 420 of Indian Penal Code is made out against the petitioner.

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So far as the offence punishable under Section 406 of Indian Penal Code is concerned, it is pertinent to mention here that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused. It must also be shown that the accused dishonestly disposed of the same in some way or dishonestly retained the same as has been held by the Hon’ble Supreme Court of India in the case of the Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 , para 15 and 18 of which reads as under :-

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“15. Section 405 IPC deals with criminal breach of trust. A careful reading of Section 405 IPC shows that a criminal breach of trust involves the following ingredients:

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(a) a person should have been entrusted with property, or entrusted with dominion over property;

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(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;

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(c) that 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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18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the

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Cr.M.P. No.660 of 2020

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complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied)

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Now coming to the facts of the case, there is no allegation of any dishonest retention of money by the petitioner rather undisputedly, the petitioner has returned the money.

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Therefore, mere delay in returning the money for period of time certainly, cannot constitute dishonest misappropriation of the property of the victim which is a sine-qua-non for constituting the offence punishable under Section 420 of Indian Penal Code. Under such circumstances, this Court is of the considered view that the offence punishable under Section 406 of Indian Penal Code is also not made out.

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In view of the discussions made above, this Court is of the considered view that the continuation of the criminal proceeding will amount to abuse of process of the court and for the ends of justice this is a fit case where the entire criminal proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015, corresponding to G.R. No. 54 of 2015 be quashed.

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Accordingly, entire criminal proceeding including the order taking cognizance dated 06.05.2016 in connection with Manoharpur P.S. Case No. 11 of 2015, corresponding to G.R. No. 54 of 2015 is quashed and set aside.

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6 Cr.M.P. No.660 of 2020

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In the result, this criminal miscellaneous petition is allowed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 4^th July, 2023 AFR/Sonu-Gunjan/-

Mritunjoy Goswami v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Mritunjoy Goswami v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

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