Dismissed

Manoj Kumar Sood v. the State of Jharkhand

Jharkhand HC6 Oct 2023Cr.M.P./783/2020

Case brief

AI extract

What is this about?

The High Court rejected a criminal miscellaneous petition seeking quashing of an order taking cognizance under cheating sections. Holding that money taken on a false promise to repay constitutes cheating even if returned post-FIR, the court found no infirmity in the order and dismissed the appeal.

What did the court decide?

The criminal miscellaneous petition stands rejected as the court found no infirmity in the order taking cognizance.

Manoj Kumar Sood Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M. P. No. 783 of 2020

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1.Manoj Kumar Sood 2.Aarti Sood 3.Allisha Kashyap 4.Aniket Sood .... .. ... Petitioner(s) Versus 1.The State of Jharkhand. 2.Sanjay Kumar .. ... ...Opp. Party(s)

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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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......... For the Petitioner(s) : Mr. Hemant Kr. Shikarwar, Advocate Mr. Anjani Nanda, Advocate For the State : Mr. Ashok Kumar, APP For the O.P. No.2 : Mr. Shailesh Kumar Singh, Advocate Mr. Abhijeet Kumar Singh, Advocate

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09/ 06.10.2023 . Heard, learned counsel for the parties.

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1. Learned counsel for the petitioners submits that he has filed the amended Cr. M. P. stating therein that petitioner no.1 (Manoj Kumar Sood) has died.

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2. Considering the submission, the name of petitioner no.1 is expunged from the cause title of the instant Cr. Misc. Petition. Office is directed to delete the name of Petitioner no.1 from the cause title of the petition.

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3. The instant Cr. M. P. has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 04.05.2020 passed by SDJM, Bokaro in Balidih P.S. Case No.206 of 2019 (G.R. No.376 of 2020) whereby and whereunder cognizance of the offence has been taken under Sections 406/ 420/ 506/ 34 IPC against the petitioners.

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4. The case of the prosecution in brief is that petitioner no.1 (since deceased) and petitioner no.2 had entered into an agreement of sale with the informant with regard to one shop at Shimla, Himachal Pradesh and another agreement was entered between the same parties for sale of Hotel at Shimla, Himachal Pradesh for a consideration amount of Rs.53,60,000/- and Rs.90 Lakhs respectively. Police after investigation submitted charge-sheet and cognizance of the offences has been taken.

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5. Initially FIR was under-challenge, but by way of amendment, the order taking cognizance has also been assailed in the instant Cr. Misc. Petition.

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6. It is submitted by learned counsel for the petitioners that the agreement of sale is forged and fabricated. As a matter of fact, petitioner no.3 (Allisha Kashyap) had come in contact with the informant through social media and had developed friendship. The informant offered to marry her, but because of age difference, she did not accept the proposal of marriage.

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7. It is further submitted that because of close relationship between the informant and the family of the petitioners, he had extended an advance of Rs.53,60,000/for the treatment of petitioner no.1 (Manoj Sood, since deceased) as friendly loan which they are ready to return. There was no inducement on the part of the petitioners to get the said sum of money. Mere non-payment of financial assistance which was voluntary, in the absence of any dishonest intention on the part of the petitioners, will not make out an offence under Sections 406 /420 IPC . Informant has also filed one Civil Suit for specific performance of the agreement which is pending before the original jurisdiction of Hon’ble High Court of Himachal Pradesh, Shimla.

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8. It is submitted that petitioner no.3 (Allisha Kashyap) has also filed a case being Shimla Sadar P.S. Case No.06 of 2020 under Sections 420, 120B IPC against the informant for taking the signature of the informant on a plain sheet of paper for pursuing her case before the D.R.AT., Chandigarh.

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9. The sum and substance of the submission on behalf of the petitioners is that the informant is try to make a capital out of friendly loan to grab their immovable property. Matter is a purely civil in nature and with a view to give texture of criminal case, the instant FIR has been lodged.

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10. Learned counsel for the petitioners in support of his submissions has relied upon the following authorities.

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(i) (2001) 8 SCC 645

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(ii) 1959 SCC On Line SC 2

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(iii) 2023 Live Law (SC) 67

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(iv) Cr. M. P. No.1744 of 2022 Jharkhand High Court

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11. Learned APP for the State assisted by learned counsel for the O.P. No.2 ha opposed the prayer. It is submitted that Rs.53,60,000/- was transferred by way of Bank transfer (through RTGS) and during that period, amount in cash was also given to the petitioners as a friendly loan. Initially it was a friendly loan and when the petitioners expressed their inability to return the said amount, agreement was entered into between the parties on 04.10.2019 and the same was registered on 10.12.2019 for sale with respect to shop and hotel. The informant not only paid the amount to the petitioners, but also cleared the entire dues of the Bank. The loan was taken by mortgaging those properties. After the loan(s) was cleared, the petitioners completely resiled from the agreement to dispose of the property.

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12. Against this backdrop, it is submitted by learned counsel for the O.P. No.2 that this a case of not only raising of civil liability, but also the dishonest intention of

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the Petitioners is writ large which was from very inception as not a penny has been returned nor the agreement has been honoured.

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13. Reliance is placed on AIR 1959 SC 1390 wherein it has been held that in case of criminal breach of trust, the offence will be made out in the event where the amount has not been accounted for or a false explanation has been given with respect to the amount so received.

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14. It is submitted that the petitioner no.3 (Allisha Kashyap) had filed one case being Shimla P.S. Case No.06 of 2020 in which after investigation a closure report was submitted with a finding of the investigating agency that it was a false case. Further another case was filed by the same petitioner after being released from the custody in the present case being Safdarganj P.S. Case No.351 of 2021 in which the closure report has been submitted.

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15. Law is settled that offence of cheating is made out if there is intention of deception from its very inception. Illustration (f) to Section 415 IPC illustrates that where a person intentionally deceives one into a belief that he intends to repay any money that may be lent to him and thereby dishonestly induces Z to pay money, the offence of cheating will be made out.

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16. Intention being a mental element is to be gathered from the conduct of the party. At this stage, the scope of judicial scrutiny is a limited one to see whether a prima facie case is made out or not on the basis of materials on record. It has not been disputed that a huge sum to the tune of ₹ 53 lakhs and more was transferred by RTGS to the petitioners which had not been returned by the time the case was lodged. Subsequent agreement to sell has been disputed by the petitioners.

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This court is of the view that in view of the law as discussed above, once an amount is taken on a false promise to return the same, the offence will be made out of cheating. Had any amount been returned before the institution of the case, then the plea that there was no intention of deception from the very beginning would have been available to the petitioners. After the case is registered, the return of the amount will not efface the offence already committed.

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Under the aforesaid facts and circumstance and for the reasons discussed above, that there is no infirmity in the impugned order and it is not a fit case for exercise of the inherent jurisdiction of this court to quash order taking cognizance.

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Criminal miscellaneous petition accordingly stands rejected.

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Sandeep/uploaded.

Manoj Kumar Sood v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Manoj Kumar Sood v. the State of Jharkhand

Case brief

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What did the court decide?

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