Ranjeet Kumar Barnwal Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1472 of 2022

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Ranjeet Kumar Barnwal, aged about 52 years, S/o Ram Saran Lal, R/o Barnwal Mansion, Shitla Mata Mandir Lane, Main Road Chas, P.O., P.S. –Chas & District -Bokaro.

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Vikash Kumar Barnwal, aged about 30 years, S/o Ranjeet Kumar Barnwal, R/o Barnwal Mansion, Shitla Mata Mandir Lane, Main Road Chas, P.O., P.S. Chas & District -Bokaro

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.... Petitioners

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Versus

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The State of Jharkhand

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Lav Khedia, aged about 30 years, S/o Binod Kumar Khedia, R/o 38, Sahu Market, Main Road Chas, Near Government Hospital, P.O, P.S. Chas & District -Bokaro.

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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 : Ms. Aparajita Bhardwaj, Advocate : Mr. Chanchal Jain, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P. For the O.P. No.2 : Mr. Amritansh Vats, 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 to quash the entire criminal proceeding in connection with Complaint Case No. 301 of 2022 including the order taking cognizance dated 06.04.2022, passed by the learned Judicial Magistrate -1^st Class, Bokaro whereby and where under the learned Magistrate has taken cognizance of the offences punishable under Section 406/420 of the Indian Penal Code.

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Cr.M.P. No.1472 of 2022

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The allegation against the petitioners is that the petitioners are the adjacent neighbor of the complainant and there was seepage in the common boundary wall between the petitioners and the complainant; apparently because of a prior existing soak pit of the petitioners and near that some digging of the soil was made by the complainant, at the time of construction of the boundary wall. It is alleged that in 2021, the complainant paid Rs.27,000/- to the petitioners, for which the complainant has no document, for closing the drain but the petitioners did not do the work and have misappropriated the said Rs.27,000/-. On the basis of the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses, the learned Magistrate has found prima facie case of the offences punishable under Section 406/420 of the Indian Penal Code.

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It is submitted by the learned counsel for the petitioners, drawing attention of this Court to annexure-5 (page no.55) of the brief dated 31.01.2022 that there is no reference in the said agreement of the complainant having paid Rs.27,000/- to the petitioners. It is next submitted by the learned counsel for the petitioners that the dispute between the parties is basically a civil dispute regarding seepage of water in the common boundary wall from the side of the petitioners to the side of the complainant and in order to wreak vengeance, a cloak of criminal case has been given to a purely civil dispute, only to harass the petitioners.

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Cr.M.P. No.1472 of 2022

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The learned counsel for the petitioners relying upon the Judgment of Hon’ble Supreme Court of India in the case of Vesa Holdings Pvt. Ltd. & Another Vs. State of Kerala & Others , reported in (2015) 8 SCC 293 submits that in order to constitute the offence of cheating, mere breach of contract would not suffice and if and only if, deception played since the very inception is alleged then only, the offence of cheating will be constituted and if the intention to cheat has developed later on, the same cannot amount to cheating. It is next submitted by the learned counsel for the petitioners that in this case, there is no allegation against the petitioners that the petitioners had played deception since the very inception of the transaction between the parties, hence even if the allegations made against the petitioners are considered to be true, still the offence punishable under Section 420 of the Indian Penal Code is not made out.

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The learned counsel for the petitioners next relies upon the Judgment of Hon’ble Supreme Court of India, in the case of Indian Oil Corporation vs. NEPC India Ltd. and Others , reported in (2006) 6 SCC 736 wherein the Hon’ble Supreme Court of India has taken note of growing tendency in the business circles to convert purely civil disputes to criminal cases and in this respect, the learned counsel for the petitioners also relies upon the Judgment of the Hon’ble Supreme Court of India in the case of G. Sagar Suri Vs. State of U.P. and Others , reported in (2000) 2 SCC 636 .

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Cr.M.P. No.1472 of 2022

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The learned counsel for the petitioners next relies upon the Judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 , paragraph-18 of which reads as under :-

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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 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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And submits that therein the Hon’ble Supreme Court of India

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has reiterated the settled principle of law that in order to constitute the offence of criminal breach of trust, mere retention of money by the accused person will not suffice and dishonest misappropriation of the same is essential. It is next submitted by the learned counsel for the petitioners that as in this case, there is no allegation against the petitioners of having committed any dishonest misappropriation of the property nor there is any document to show any entrustment of the Rs.27,000/-, hence the offence punishable under Section 406 of the Indian Penal Code is not made out; in the facts of the case.

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Cr.M.P. No.1472 of 2022

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The learned counsel for the petitioners next relies upon the Judgment of Hon’ble Supreme Court of India in the case of All Cargo Movers (India) Private Limited and Others Vs. Dhanesh Badarmal Jain and Another , reported in (2007) 14 SCC 776 wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that breach of contract simpliciter does not constitute any offence and in the facts of that case, the Hon’ble Supreme Court of India took into consideration the correspondences exchanged by the parties and other admitted documents filed in the connected civil suit.

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It is next submitted by the learned counsel for the petitioners relying upon the Judgment of Hon’ble Supreme Court of India in the case of Hira Lal Hari Lal Bhagwati Vs. C.B.I., New Delhi , reported in (2003) 5 SCC 257 that from the failure of the accused to keep promise, the culpable fraudulent and dishonest intention at the beginning i.e. at the time when the promise was made cannot be presumed. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed.

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The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for in this criminal miscellaneous petition and submits that since there is direct and specific allegation against the petitioners that they have misappropriated Rs.27,000/- entrusted to them which they have obtained by way of cheating, hence both

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Cr.M.P. No.1472 of 2022

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the offences punishable under Section 406 and 420 of the Indian Penal Code are made out. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that there is absolutely no chit of paper in support of the contention of the complainant that the complainant paid Rs.27,000/- to the petitioners. From the admitted document at annexure-5 which is the agreement between the parties dated 31.01.2022 which though as per the case of the complainant is subsequent to the date of entrustment of Rs.27,000/- which was made in the year 2021 but there is no reference of such entrustment of Rs.27,000/- in the said agreement annexed as annexure-5. There is no allegation against the petitioners that the petitioners played deception since the beginning of the transaction between the parties nor there is any allegation of dishonest misappropriation of the amount of money allegedly entrusted by the complainant to the petitioners.

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Under such circumstances, keeping in view the admitted civil dispute between the parties regarding the leakage in the common wall of the parties, this Court is of the considered view that it is apparent that this criminal case has been instituted for the purpose of wreaking vengeance and neither the offence punishable under Section 406 nor the offence punishable under Section 420 of the Indian Penal Code is made out in the facts of

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Cr.M.P. No.1472 of 2022

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this case. Therefore, the continuation of this criminal case will amount to abuse of process of law. Hence, this is a fit case where the entire criminal proceeding in connection with Complaint Case No. 301 of 2022 including the order taking cognizance dated 06.04.2022, passed by the learned Judicial Magistrate -1^st Class, Bokaro whereby and where under the learned Magistrate has taken cognizance of the offences punishable under Section 406/420 of the Indian Penal Code be quashed and set aside.

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Accordingly, the entire criminal proceeding in connection with

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Complaint Case No. 301 of 2022 including the order taking cognizance dated 06.04.2022, passed by the learned Judicial Magistrate -1^st Class, Bokaro whereby and where under the learned Magistrate has taken cognizance of the offences punishable under Section 406/420 of the Indian Penal Code is quashed and set aside.

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In the result, this criminal miscellaneous petition is allowed.

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In view of disposal of this criminal miscellaneous petition, Interlocutory Application No. 10356 of 2023 is disposed of being infructuous.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 21^st November, 2024 AFR/Sonu-Gunjan/-

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Cr.M.P. No.1472 of 2022

Ranjeet Kumar Barnwal v. the State of Jharkhand

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Ranjeet Kumar Barnwal v. the State of Jharkhand

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