Allowed

Omeo Kumar Bishwas Alias Dr Amiyo Kumar Biswas v. the State of Jharkhand

Jharkhand HC4 Sept 2024Cr.M.P./542/2019

Case brief

AI extract

What is this about?

Petition under Section 482 CrPC to quash criminal proceedings and cognizance order for Sections 406, 420, 120B IPC arising from a dishonoured cheque complaint. Court found no deception at inception and no entrustment, quashed the proceeding and cognizance order.

What did the court decide?

Entire criminal proceeding and order taking cognizance dated 30.11.2018 in Complaint Case No. 806 of 2018 quashed and set aside.

Omeo Kumar Bishwas Alias Dr Amiyo Kumar Biswas Vs the… — Quashing and FIR | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 542 of 2019

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Omeo Kumar Bishwas @ Dr. Amiyo Kumar Biswas, S/o Dr. Adhir Kumar Biswas, aged about 53 years, resident of Jhumri Telaiya Nagar Parishad, P.O.- Jhumri Telaiya, P.S.- Telaiya, Dist.- Koderma ...... Petitioner Versus

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The State of Jharkhand

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Veena Kumari, W/o Rajendra Kumar, D/o Sri Nanku Modi, resident of Jhumri Telaiya Nagar Parishad, near Shani Mandir, P.O.- Jhumri Telaiya, P.S.- Telaiya, Dist.Koderma ….. Opposite Parties

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For the Petitioner : Mr. Bharat Kumar , Adv. Mr. Raj Kumar Prasad , Adv. For the State :Mr. Bisambhar Shastri, Addl. PP

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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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By the Court:- Heard the parties. Though notice has been validly served upon the opp. party no. 2 but no one turns up on behalf of the opp. party no. 2 even after repeated calls.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding as well as the order taking cognizance dated 30.11.2018 passed by learned JMFC, Koderma whereby and where under, learned JMFC, Koderma has taken cognizance of the offences punishable under Sections 406, 420, 120B of the IPC, in connection with Complaint Case no. 806 of 2018 inter alia against the petitioner pending in the court of learned JMFC, Koderma.

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The allegation against the petitioner is that the petitioner was paid a cheque of Rs. 9,90,000/- by the complainant at the instance of the co-accused Madhusudan Daruka as

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Cr.M.P. No. 542 of 2019

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Madhusudan Daruka was owing that money to the petitioner as a security amount for purchasing a flat from Aastha Realtors. Subsequently, the complainant came to know that the Title Suit No. 59 of 1969 was pending in respect of the land over which the said apartment was constructed by M/s Aastha Realtors and he issued stop payment instruction to the bank in respect of the cheque issued to the petitioner and the petitioner issued a demand notice for dishonor of the cheque, which was replied by the complainant and thereafter the petitioner threatened the complainant and manhandled her. On the basis of the complaint, the statement on solemn affirmation and the statement of the enquiry witnesses, learned JMFC, Koderma found prima facie case for the offences punishable under Section 406, 420 read with Section 120B of the IPC.

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It is submitted by the learned counsel for the petitioner that admittedly the petitioner is no way associated with M/s Aastha Realtors nor he was involved since beginning of the transaction between the co-accused Madhusudan Daruk and the complainant, hence, even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out against the petitioner.

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It is next submitted that admittedly, no entrustment has been made to the petitioner as cheque purportedly issued by the complainant, has admittedly been dishonored because of the stop payment instruction issued by the complainant, hence, neither of the offences punishable under Section 406 of IPC is not made out against the petitioner, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

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Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer, as prayed for in this Criminal Miscellaneous Petition and submits that the involvement of the petitioner in the whole affairs shows that he was involved in

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Cr.M.P. No. 542 of 2019

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criminal conspiracy with the co-accused persons, hence, it is submitted that materials in the record is sufficient to constitute the offences in respect of which , learned Magistrate has found the prima facie case, hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

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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 it is the 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 cannot amount to cheating.

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Now coming to the facts of the case, admittedly, the petitioner was not involved in the transaction in between the complainant and M/s Aastha Realtors and the persons associated with the same, so even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of IPC is not made out against the petitioner.

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So far as the offence punishable under Section 406 of IPC is concerned, the essential ingredients of the offence under Section 406 of IPC as is applicable to the facts of the case is that, there must be an entrustment and there must be misappropriation or conversion to one’s own use or use in violation of legal direction or of any legal contract, as has been

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3 Cr.M.P. No. 542 of 2019

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observed by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli Vs. Central Bureau of Investigation reported in 2003 3 SCC 641 .

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Now coming to the facts of the case, admittedly there is no entrustment to the petitioner and the cheque which was issued to the petitioner has been dishonored.

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Under such circumstances, this court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of IPC is not made out against the petitioner and also there is no material in the record to suggest the involvement of the petitioner in any criminal conspiracy for the said offence.

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In view of the discussions made above, this court is of the considered view that none of offences for which, the cognizance has been taken by learned Magistrate, is made out against the petitioner, hence, the continuation of this criminal proceeding will amount to abuse of process of law and this is a fit case, where the entire criminal proceeding as well as the order taking cognizance dated 30.11.2018 passed by learned JMFC, Koderma in connection with Complaint Case no. 806 of 2018, be quashed and set aside.

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Accordingly, the entire criminal proceeding as well as the order taking cognizance dated 30.11.2018 passed by learned JMFC, Koderma in connection with Complaint Case no. 806 of 2018, 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 the disposal of this Criminal Miscellaneous Petition, the interlocutory application 1945 of 2023 also stands disposed of being infructuous.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 4^th September, 2024 Smita /AFR

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Cr.M.P. No. 542 of 2019

Omeo Kumar Bishwas Alias Dr Amiyo Kumar Biswas v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Omeo Kumar Bishwas Alias Dr Amiyo Kumar Biswas v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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