Bishnu Singh Vs the State of Jharkhand

------ For the Petitioners : Mr. Ashok Kr. Sinha No.4, Advocate Mr. Himanshu S. Pandey, Advocate For the State : Mr. Shiv Shankar Kumar, Addl.P.P. For the O.P. No.2 : Mr. Ankit Kumar, Advocate

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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.

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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 the prayer to quash the entire criminal proceedings of the Complaint Case No.595 of 2019 including the order dated 03.09.2021 passed by the learned Judicial Magistrate-1^st Class, Deoghar by which the learned Judicial Magistrate-1^st Class, Deoghar has taken cognizance of the offence

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punishable under Section 420 of the Indian Penal Code as well as the order dated 09.06.2022 passed by the learned Sessions Judge, Deoghar in Criminal Revision No.63 of 2022 by which the learned Sessions Judge, Deoghar has affirmed the order dated 03.09.2021 passed by the learned Judicial Magistrate-1^st Class, Deoghar in Complaint Case No.595 of 2019.

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The allegation against the petitioners is that the petitioner No.1 was a witness to a registered agreement of sale entered into between the complainant and the father of the petitioner No.1 dated 03.05.2017 and the petitioner Nos.2, 3 and 5 are the wife and sons of the petitioner No.1 and the petitioner No.4 is the niece of the petitioner No.1. It is further alleged in the complaint that the father of the petitioner No.1 namely Devnandan Singh has taken Rs.23,80,000/- as advance for selling his land for a total consideration amount of Rs.2,60,00,000/-. Neither he is returning the money nor he is returning the advance amount and later on, the complainant could know that a litigation is going on between the accused persons of the case with their relatives in respect of the land in respect of which agreement for sale was entered into by the complainant and the father of the petitioner no.1. It is further alleged that Devnandan Singh has taken advance from other persons also. On the basis of the materials available in the record including the complaint, the statement on solemn affirmation of the complainant and the statement of the enquiry witnesses, the learned Judicial Magistrate-1^st Class, Deoghar found prima facie case for the offence punishable under Section 420 of the Indian Penal Code.

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Learned counsel for the petitioners submits that the allegation against the petitioners is false. The main allegation is against Devnandan Singh who is not a petitioner before this Court. There is no allegation of

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impersonation of Devnandan Singh. Hence, the petitioner who is the witness to the said alleged registered agreement for sale, cannot be said to have committed any offence. It is next submitted that there is no material available in the records to constitute the offence punishable under Section 420 of the Indian Penal Code against any of the petitioners. The dispute between the parties is basically a civil dispute and a cloak of criminal offence has been given for the purpose of wreaking vengeance and to harass the petitioners. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

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Learned Additional Public Prosecutor appearing for the State and the learned counsel for the opposite party No.2 on the other hand submit that the main culprit- Devnandan Singh is dead.

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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 a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Ankur Gupta Vs. State of Uttar Pradesh and Another , reported in (2017) SCC Online SC 2023 , the relevant part of paragraph No.7 of which reads as under:-

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“7. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx Since the appellant is not a party to the agreement or any transaction between the complainant and other accused, there is no reason as to why he should face criminal trial and that too for the offences under Sections 406, 420 IPC etc. xxxxxxx xxxxx. (Emphasis Supplied)”

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wherein the Hon’ble Supreme Court of India has reiterated the settled

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principle of law that if an accused is not a party to the agreement or any transaction between the complainant and other accused, there is no reason, as to why he should face criminal trial and that too for the offences under Section 406/420 of the Indian Penal Code

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It is also a settled principle of law that as has been held by the Hon’ble Supreme Court of India in the case of Dalip Kaur and Others v. Jagnar Singh and Another , reported in (2009) 14 SCC 696, para-10 of which reads as under:-

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“10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” (emphasis supplied)

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wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating.

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It is also 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 & Another reported in (2005) 10 SCC 336 , para-6 of which reads as under :-

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“ 6. Xxxxx 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

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cheating and only in those cases breach of contract would amount to

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cheating where there was any deception played at the very inception and 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, the main allegation is against Devnandan Singh who is not a petitioner of this case. There is no allegation against the petitioners of playing any deception since the beginning of the transactions between the parties. There is also no allegation that the petitioner No.1 has been identified any wrong person, impersonating as Devnandan Singh.

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Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners, in absence of any allegation against them of playing any deception since the beginning of the transaction between the complainant and Devnandan Singh. Hence, continuation of the criminal proceeding will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceedings of the Complaint Case No.595 of 2019 including the order dated 03.09.2021 passed by the learned Judicial Magistrate-1^st Class, Deoghar as well as the order dated 09.06.2022 passed by the learned Sessions Judge, Deoghar in Criminal Revision No.63 of 2022, be quashed and set aside qua the petitioners only.

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Accordingly, the entire criminal proceedings of the Complaint Case No.595 of 2019 including the order dated 03.09.2021 passed by the learned Judicial Magistrate-1^st Class, Deoghar as well as the order dated 09.06.2022 passed by the learned Sessions Judge, Deoghar in Criminal Revision No.63 of 2022, is quashed and set aside qua the petitioners only.

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