Allowed

Bhagwan Das v. the State of Jharkhand

Jharkhand HC5 Sept 2024Cr.M.P./555/2019

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings initiated against the petitioners in a cheque/receipt dispute. Finding no allegation of deception at the transaction's inception or dishonest misappropriation, the Court held that the ingredients for cheating and criminal breach of trust were not made out.

What did the court decide?

The entire criminal proceeding including the order taking cognizance dated 11.10.2018 passed by the learned Judicial Magistrate 1st Class, Garhwa in Complaint Case No. 824 of 2018 is quashed and set a

Bhagwan Das Vs the State of Jharkhand — Writ and Judicial Review | Jharkhand HC (2024)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 555 of 2019

¶2

Bhagwan Das, aged about 82 years, son of late Ramlakhan

¶3

Kunj Bihari Lal, aged about 55 years, son of Bhagwan Das

¶4

Amit @ Amit Kumar @ Janu, aged about 26 years, son of Kunj Bihari Lal

¶5

All residents of Village-Kachnarwa, P.O.-Kachnarwa, P.S.-Kone, Dist.-Sonbhadra (Uttar Pradesh)

¶6

.... Petitioners

¶7

Versus

¶8

The State of Jharkhand

¶9

Basisth Narayan Trivedi, son of late Shahdeo Tiwari, resident of Chandrapura, P.O. & P.S.-Kandi, Dist.-Garhwa, presently residing at Hesal, P.O. & P.S.-Hesal, Ranchi

¶10

…. Opp. Parties

¶11

P R E S E N T

¶12

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶13

For the Petitioners : Mr. Vishal Kr. Tiwari, Advocate : Mr. Amit Kr. Tiwari, Advocate : Ms. Nidhi Rani, Advocate For the State : Mr. Rajesh Kumar, Addl. P.P. For O.P. No.2 : Mr. Yadunandan Mishra, Advocate : Mr. Abhishek Kumar, Advocate

¶14

By the Court:-

¶15

Heard the parties.

¶16

This criminal miscellaneous petition has been filed invoking the

¶17

jurisdiction of this Court under Section 482 Cr.P.C with a prayer to set aside the entire criminal proceeding including the order taking cognizance dated 11.10.2018 passed by the learned Judicial Magistrate 1^st Class, Garhwa whereby and where under, the learned

¶18

Cr.M.P. No.555 of 2019

¶19

¶20

Judicial Magistrate 1^st Class, Garhwa has found prima facie case for the offence punishable under Sections 406 and 420 of Indian Penal Code in connection with Complaint Case No. 824 of 2018.

¶21

The allegation against the petitioners is that the petitioner no.1 executed a receipt dated 22.09.2010 of Rs.1,50,000/in acknowledgement of taking as advance for selling his land worth Rs.8,50,000/- to the complainant. It is also stated that later on 27.01.2013 the petitioner no.1 given a written assurance that he will transfer the land in the name of the complainant or else he will return the money. It is further alleged that the complainant in total paid Rs.3,00,000/- but the petitioners are neither executing the sale deed nor returning the money.

¶22

On the basis of the complaint, statement on solemn affirmation of the complainant and the statement of the inquiry witnesses, the learned Judicial Magistrate 1^st Class, Garhwa has found prima facie case for the offences punishable under Sections 420 and 406 of Indian Penal Code vide order dated 11.10.2018 in Complaint Case No. 824 of 2018.

¶23

It is submitted by the learned counsel for the petitioners that the petitioners are innocent and have not committed any offence and they have been falsely implicated in this case due to mala fide intention. It is then submitted by the learned counsel for the petitioners that there is absolutely no allegation against the petitioner nos.2 and 3 neither of entrustment of money nor of cheating and thereby inducing the complainant or for that matter anyone else, to part with money. It is further submitted by the learned counsel for the petitioners that though the money was first

¶24

Cr.M.P. No.555 of 2019

¶25

¶26

stated to be given on 22.09.2010 but the complaint case was filed only on 02.05.2018 much after the time period of limitation for recovery of the said money was elapsed. It is also submitted by the learned counsel for the petitioners that there is absolutely no allegation against the petitioners of playing deception since the beginning of the transaction between the parties and had that been; so there would not have been any allegation of making any further payment to the petitioners by the complainant. It is then submitted that even if the entire allegation are considered to be true in their entirety still neither the offence punishable under Section 420 nor the offence punishable under Section 406 of Indian Penal Code is made out. It is lastly submitted that the prayer as made in this criminal miscellaneous petition be allowed.

¶27

Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer as made by the petitioners in this criminal miscellaneous petition and submits that on the basis of the allegation both the offence punishable under Section 420 as well as the offence punishable under Section 406 of Indian Penal Code is made out against all the petitioners and the learned Judicial Magistrate 1^st Class, Garhwa having rightly found prima facie case for the offences punishable under Sections 406 and 420 of Indian Penal Code; this criminal miscellaneous petition being without any merit be dismissed.

¶28

Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that 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.

¶29

Cr.M.P. No.555 of 2019

¶30

¶31

State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph no. 6

¶32

of which reads as under :-

¶33

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)

¶34

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.

¶35

Now coming to the facts of the case, admittedly the initial amount was paid on 22.09.2010 and the subsequent amount was paid in the year 2015 and the complaint was filed on 02.05.2018. From the facts of the case it is crystal clear that there is no allegation against the petitioners of having played deception since the beginning of the transaction between the parties.

¶36

Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioners are considered to be true in its entirety still; in the absence of any allegation that the petitioners played deception since the beginning

¶37

Cr.M.P. No.555 of 2019

¶38

¶39

of transaction between the parties, the offence punishable under Section 420 of Indian Penal Code is not made out.

¶40

So far as the offence punishable under Section 406 of Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar and Others v. State of Bihar and Another reported in (2014) 10 SCC 663 , paragraph no. 18 of which reads as under:-

¶41

“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.”

¶42

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 but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same.

¶43

Now coming to the facts of the case, there is no allegation against the petitioners of any dishonest misappropriation of the money retained by the petitioners.

¶44

Under such circumstances, this Court is of the considered view that even if the entire allegation against the petitioners are considered to

¶45

Cr.M.P. No.555 of 2019

¶46

¶47

be true in their entirety; still in the absence of any dishonest misappropriation of any property; the offence punishable under Section 406 of Indian Penal Code is not made out.

¶48

It is pertinent to mention here that there is absolutely no allegation against the petitioner no.3 and the only involvement of the petitioner no.2 is that he is one of the witnesses to the money receipt executed by the petitioner no.1.

¶49

In view of the discussions made above, as neither the offence punishable under Section 420 nor the offence punishable under Section 406 of Indian Penal Code is made out against the petitioners; therefore, continuation of the criminal proceeding vide Complaint Case No. 824 of 2018 of the court of learned Judicial Magistrate 1^st Class, Garhwa will amount to abuse of process of law and this is a fit case, where the entire criminal proceeding including the order taking cognizance dated 11.10.2018 passed by the learned Judicial Magistrate 1^st Class, Garhwa be quashed and set aside.

¶50

Accordingly, the entire criminal proceeding including the order taking cognizance dated 11.10.2018 passed by the learned Judicial Magistrate 1^st Class, Garhwa is quashed and set aside.

¶51

In the result, this criminal miscellaneous petition is allowed.

¶52

(Anil Kumar Choudhary, J.)

¶53

High Court of Jharkhand, Ranchi Dated the 5^th September, 2024 AFR/Sonu-Gunjan/-

¶54

Cr.M.P. No.555 of 2019

¶55

Bhagwan Das v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Bhagwan Das v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anisha Kumari Alias Muni Swansi Vs the State of Jharkhand

K Sreekant And Anr. Vs The State Of Jharkhand

Ramesh Lal Srivastava And Ors. Vs The State Of Jharkhand And Anr.

Shubha Jubita Toppo Vs the State of Jharkhand

Ritesh Kumar Rajwar Vs the State of Jharkhand

Osin Kumar Keot Vs the State of Jharkhand