Allowed

Ayub Khan v. the State of Jharkhand

Jharkhand HC9 Sept 2024Cr.M.P./2566/2024

Download

Case brief

from the order text

What is this about?

No.2566 of 2024 IN THE HIGH COURT OF…

What the court decided

AI extract

Ayub Khan Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2024)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2566 of 2024

¶2

------

¶3

Ayub Khan aged about 45 years, son of Late Ibrahim Khan, R/o Near Mashjid, Hesag P.O. Hatia and P.S. Jagarnathpur DistrictRanchi (Jharkhand) … Petitioner

¶4

Versus

¶5

… The State of Jharkhand Opposite Party

¶6

For the Petitioner : Mr. Suraj Kishore Prasad, Advocate For the State : Mr. Prabhu D. Agrawal, Spl.P.P. ------ P R E S E N T

¶7

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶8

By the Court:- Heard the parties.

¶9

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with a prayer to quash the entire criminal prosecution including the First Information Report in connection with Argora P.S. Case No.260 of 2022 for the offence punishable under Sections 406, 420, 467, 468, 471, 34 of the Indian Penal Code and the said case in now pending in the court of learned Judicial Magistrate-1^st Class-XIII, Ranchi.

¶10

The allegation against the petitioner is that the petitioner along with the co-accused persons showed one land to be sold to the informant and took Rs.32,00,000/- as advance out of the total consideration amount of Rs.54,00,000/- but later on, it was found that the land does not belong to Ranjan Khalkho and on the basis of the written report filed by the informant, police registered Argora P.S. Case No.260 of 2022 and the learned counsel for the

¶11

¶12

Cr. M.P. No.2566 of 2024

¶13

petitioner submits that investigation is going on and charge-sheet has not been yet submitted.

¶14

Learned counsel for the petitioner draws attention of this Court to the agreement enclosed with the written report, the certified copy of which has been kept at page Nos.19 to 24 and submits that in running page No.22, it has categorically been mentioned in the said agreement itself that the land in respect of which the said agreement for sale was made, was in the name of Mihir Samad on the date of such agreement and the opposite party no. 2, has entered into an agreement with Ranjan Khalkho and the informant is entering into a agreement with Ranjan Khalkho.

¶15

Learned counsel for the petitioner next submits that there is no allegation of impersonation against the petitioner nor there is any allegation of entrustment of any money to the petitioner. The allegation of entrustment of any money is against the co-accused Ranjan Khalkho. It is next submitted that since the informant admittedly was aware that the land was in the name of Mihir Samad, at the time of entering into the said agreement for sale; so, the land does not stand recorded in the name of Ranjan Khalkho, is nothing new and cannot be termed as a forgery.

¶16

Learned counsel for the petitioner relies upon the judgment of this Court in the case of Sudhir Prasad Verma & Others vs. State of Jharkhand reported in 2024 SCC OnLine Jhar 2357 wherein this Court reiterated that it is a settled principle of law that every breach of contract would not give rise to an offence of cheating where there was any deception played at the very inception. If the intention to cheat develops later on, the same cannot amount to cheating as has

¶17

been held by the Hon’ble Supreme court of India in the case of Umashankar

¶18

¶19

Cr. M.P. No.2566 of 2024

¶20

Gopalika vs. State of Bihar reported in (2005) 10 SCC 336, paragraph-6 of

¶21

which reads as under:-

¶22

“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)

¶23

and in that case, this Court also reiterated the settled principle of law 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 persons; it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same; as has been observed by the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another, reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:-

¶24

“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)”

¶25

In this respect, the learned counsel for the petitioner also relies upon another judgment of this Court in the case of Shiv Prasad Kerketta vs. State of

¶26

¶27

Cr. M.P. No.2566 of 2024

¶28

Jharkhand passed in Cr.M.P. No.1337 of 2023 dated 13.05.2024 wherein this Court also reiterated the settled principle of law regarding the ingredients of the offence punishable under Section 420 of the Indian Penal Code as has been observed by the Hon’ble Supreme Court of India in the case of A.M. Mohan vs. The State Represented by SHO & Another reported in 2024 INSC 233, paragraph-13 of which reads as under:-

¶29

“13. It could thus be seen that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:

¶30

(i) the deception of any person;

¶31

(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and

¶32

(iii) dishonest intention of the accused at the time of making the

¶33

inducement.”

¶34

It is next submitted that even if the allegations made against the petitioner are considered to be true in their entirety, still none of the offence for which the F.I.R. has been registered is made out against the petitioner. Hence, the prayer as prayed for by the petitioner be quashed and set aside.

¶35

Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner and submits that the allegation made in the F.I.R. is sufficient to constitute all the offences for which the F.I.R. has been registered. It is next submitted that at this nascent stage, the prayer for quashing the entire criminal prosecution including the First Information Report in connection with Argora P.S. Case No.260 of 2022 for the offence punishable under Sections 406, 420, 467, 468, 471, 34 of the Indian Penal Code ought not be

¶36

¶37

Cr. M.P. No.2566 of 2024

¶38

allowed. Learned Spl.P.P. fairly further submits that investigation is going on till now and charge-sheet has not been submitted yet.

¶39

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there is no allegation made in the F.I.R. of any false document has been created by anybody.

¶40

Perusal of the record reveals that in running page-22 which is the part of the agreement entered into between the informant and the co-accused Ranjan Khalkho in which the petitioner is one of the witness. It has been categorically mentioned that the land is in the name of Mihir Samad so contending in the written report by the informant that the informant was not aware that the land was not in the name of Ranjan Khalkho, at the time of entering into the agreement with him; is needless to mention, prima facie appears to be a false statement. There is no allegation of entrustment of any money to the petitioner. There is also no allegation against the petitioner of playing deception since the beginning of the transaction between the parties.

¶41

Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner in the F.I.R. are considered to be true in their entirety, still none of the offences punishable under Sections 406, 420, 467, 468, 471, 34 of the Indian Penal Code is made out against the petitioner. Hence, continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal prosecution including the First Information Report in connection with Argora P.S. Case No.260 of 2022 for the offence punishable

¶42

¶43

Cr. M.P. No.2566 of 2024

¶44

under Sections 406, 420, 467, 468, 471, 34 of the Indian Penal Code, be quashed and set aside.

¶45

Accordingly, the entire criminal prosecution including the First Information Report in connection with Argora P.S. Case No.260 of 2022, is quashed and set aside qua the petitioner only.

¶46

In the result, this Cr.M.P. is allowed.

¶47

(Anil Kumar Choudhary, J . )

¶48

High Court of Jharkhand, Ranchi Dated the 09^th of September, 2024 AFR/ Saroj

¶49

¶50

Cr. M.P. No.2566 of 2024

Ayub Khan v. the State of Jharkhand

Case brief

What is this about?

What the court decided

Ayub Khan v. the State of Jharkhand

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pradeep Kumar Sinha Alias Rocky Vs the State of Jharkhand

Kamakhya Yadav Alias Kemakhya Yadav Vs the State of Jharkhand

Mohammad Ibrar Vs the State of Jharkhand

Shabnam Praveen Alias Shabnam Parveen Vs the State of Jharkhand

Dilip Kumar Singh Vs the State of Jharkhand

Shekh Khalid Alias Shiekh Khalid Vs the State of Jharkhand