Allowed

MD Rafique v. the State of Jharkhand

Jharkhand HC24 Jan 2024Cr.M.P./231/2021

Case brief

AI extract

What is this about?

The High Court exercised jurisdiction under Section 482 Cr.P.C. to quash an FIR alleging cheating and criminal breach of trust. The Court held that the facts only disclosed a civil dispute regarding property distribution and lack of initial deception, making continuation of criminal proceedings an abuse of the process of law.

What did the court decide?

The First Information Report being Giridih (M) P.S. Case No. 72 of 2020 and criminal proceedings initiated thereunder are quashed and set aside.

MD Rafique Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2024)

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Cr.M.P. No.231 of 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 231 of 2021

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Md. Rafique aged about 61 years, s/o late Rasul Miyan

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Gulan Bibi @ Gulan aged about 56 years, w/o Md. Rafique

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Jahir Hussain aged about 38 years, s/o Md. Rafique

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Tajim Hussain @ Tajim aged about 36 years, s/o Md. Rafique

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Saddam Hussain @ Saddam aged about 34 years, s/o Md. Rafique

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Ramjan Hussain @ Ramjan aged about 29 years, s/o Md. Rafique Above all residents of Ward No.10, Filter Plant, Bajarpara, Bhatgaon Colliery, P.O.- Bhatgaon, P.S.-Sarguja, Dist.-Surajpur (Chhattisgarh)

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.... Petitioners

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Versus

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The State of Jharkhand

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Aayasha Khatoon, aged about 60 years, w/o Md. Rafique, resident of 16 Chunjka, P.O.-Chunjka, P.S.-Giridih (M), Dist.-Giridih (Jharkhand)

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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. Sanjay Kumar, Advocate For the State : Mr. Pankaj Kumar, P.P. For the O.P. No.2 : Mr. Kamdeo Pandey, 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

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invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the First Information Report being Giridih (M) P.S. Case No. 72 of 2020 involving the offence punishable under Section 420, 406 and 120B of Indian Penal Code.

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The allegation against the petitioners is that the petitioner no.1

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being the husband of the informant received Rs.42,00,000/towards his retiral benefits upon his superannuation from his

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Cr.M.P. No.231 of 2021

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service with S.E.C.L., Colliery, Bhatgaon, Chhattisgarh. He promised to pay Rs.10,00,000/- to the informant and gave the same in writing in a stamp paper but did not pay the same. It is further alleged that the other petitioners who are also the coaccused persons of the said case; have in criminal conspiracy with each other committed the said offences.

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It is submitted by the learned counsel for the petitioners that even if the entire allegations made in the FIR are treated to be true in its entirety still none of the offences punishable under Sections 420 or 406 or 120B of Indian Penal Code is made out. Hence, it is submitted that First Information Report being Giridih (M) P.S. Case No. 72 of 2020 be quashed and set aside.

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Learned P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer for quashing the First Information Report being Giridih (M) P.S. Case No. 72 of 2020 and submits that the failure on the part of the petitioner no.1 in criminal conspiracy with the other petitioners of not honouring the undertaking given in writing to pay Rs.10,00,000/-, amounts to cheating and criminal breach of trust. 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 in the record, it is appropriate to refer to Section 420 of Indian Penal Code which reads as under:-

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420. Cheating and dishonestly inducing delivery of property .—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or

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Cr.M.P. No.231 of 2021

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sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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The essential ingredients to constitute the offence punishable under Section 420 of Indian Penal Code is that :-

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(1) There should be fraudulent or dishonest inducement of a person by deceiving him;

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(2) (a) The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or

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(b) the person so induced to do anything which he would not do or omit if he were not so deceived, and

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(c) in cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person induced in body, mind or property

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as has been held by the Hon’ble Supreme Court of India in the case of R.S. Nayak vs. A.R. Antulay reported in (1986) 2 SCC 716 .

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Thus, it is clear from the plain reading of Section 420 of Indian Penal Code that to constitute the said offence there has to be deceit that is to say dishonest or fraudulent misrepresentation and inducing the person deceived to part with property.

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Now coming to the facts of the case, there is no allegation against the petitioners of inducement of the informant to part with any property. There is no allegation against the petitioners that the petitioners at any point of time did not have any intention to pay the said Rs.10,00,000/- which of course as pleaded by the

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Cr.M.P. No.231 of 2021

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petitioners is signed under force and coercion and without free will.

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It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph no. 6 of which reads as under :-

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6. Xxxx xxxx xxxx It is well settled 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 the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied)

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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 will not amount to cheating.

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Now coming to the facts of the case, as already indicated above, there is no allegation of any deception having been played by the petitioners at the very inception, this Court has no hesitation in holding that even if the entire allegation made in the FIR are treated to be true in its entirety, still, the offence punishable under Section 420 of Indian Penal Code is not made out against the petitioners.

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Cr.M.P. No.231 of 2021

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So far as the offence punishable under Section 406 of Indian Penal Code is concerned, the essential ingredients to constitute the offence punishable under Section 406 of Indian Penal Code are as follows :-

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(i) Mens rea

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(ii) There must be dishonest misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract

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(iii) The accused dishonestly used or disposed of the property

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It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Satish Chandra Ratanlal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148 , paragraph nos. 11 of which reads as under :-

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“11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with Section 406 IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that Respondent 2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit which is still pending adjudication. The law clearly recognises a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.(Emphasis supplied)

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that a mere breach of a promise, agreement or contract does not,

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ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment for which provision of punishment has been enshrined under Section 406 of Indian Penal Code.

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Cr.M.P. No.231 of 2021

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Now coming to the facts of the case, there is no allegation against the petitioners of being entrusted with any property or valuable security etc. In the absence of the same, this Court is of the considered view that even if the allegations made in the FIR are considered to be true in its entirety still the offence punishable under Section 406 of Indian Penal Code is not made out either.

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So far as the offence punishable under Section 120B of the Indian Penal Code is concerned, the essential ingredients of the said offence are as follows:-

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(i) An agreement between two or more persons to commit an offence

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(ii) In doing so, either commit or caused to be done an illegal act or act which is not in itself illegal, by illegal means

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(iii) such an act done or caused to be done; was an offence punishable under the Indian Penal Code and

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(iv) If the act so done was not an offence then an overt act had been done by one or more parties to such agreement in pursuance thereof.

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as has been held by the Hon’ble Supreme Court of India in the case of State vs. Nalini reported in (1995) 5 SCC 253 which has been reiterated in the case of Sudhir Shantilal Mehta vs. CBI reported in (2009) 8 SCC 1 as also in the case of Major E.G. Barsay

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vs. State reported in AIR 1961 SC 1762 as well as Ram Narayan

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vs. CBI reported in (2003) 3 SCC 641 .

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Now coming to the facts of the case, there is absolutely no allegation against the petitioners of having committed any of the acts, deeds and things to constitute the offence punishable under Section 120B of Indian Penal Code. So agreement, if any, between the petitioners themselves is insufficient to constitute the offence punishable under Section 120B of Indian Penal Code.

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Hence, in the considered opinion of this Court even if the entire allegation made in the FIR are treated to be true in its entirety, still, the offence punishable under Section 120B of Indian Penal Code is not made out.

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It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr. reported in (2009) 8 SCC 751 , para - 8 of which reads as under:-

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“8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] ) Let us examine the matter keeping the said principles in mind.” (Emphasis supplied)

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that the proceedings before the criminal courts are used for settling scores or to pressurize parties to settle civil dispute.

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The allegation goes to show basically the grievance of the informant is that the petitioner no.1 instead of giving his selfacquired property to the informant has given the same to his second wife and their children.

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Under such circumstances, this Court has no hesitation in holding that as the allegations made in the FIR is insufficient to constitute any of the offences for which the same has been registered. Thus, the continuation of the same will amount to abuse of process of law. Hence,p this is a fit case where the First Information Report being Giridih (M) P.S. Case No. 72 of 2020 be quashed and set aside.

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Accordingly, the First Information Report being Giridih (M) P.S. Case No. 72 of 2020 is quashed and set aside.

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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 24^th January, 2024 AFR/Sonu-Gunjan/-

MD Rafique v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

MD Rafique v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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