Srinivasalu Basapatti Alias Sinu Vs State of Jharkhand

(2025:JHHC:15956)

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 67 of 2024

Srinivasalu Basapatti @ Sinu, aged about 48 years, s/o Basapahti Lakshmi Narayan, r/o Teacher Colony, Adoni, P.O. & P.S.-Adoni, Dist.-Kurnool, State-Andhra Pradesh

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.... Petitioner

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Versus

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The State of Jharkhand

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Vaibhav Keshri, s/o Gauri Shankar Keshri, r/o H.I.G., House No.7, Housing Colony, Dhanbad, P.O. & P.S.-Dhanbad, Dist.-Dhanbad, State-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 Petitioners : Mr. Soumitra Baroi, Advocate : Mr. Rakesh Kumar No.2, Advocate For the State : Mr. Devesh Krishna, SC Mines III For O.P. No.2 : None …..

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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 invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding involving the offences punishable under Sections 406, 419, 420/34 of Indian Penal Code and also to quash the charge sheet including the order taking cognizance dated 16.10.2023 whereby and where under, cognizance for the said offences has been taken by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad P.S. Case No. 333 of 2018 corresponding to G.R. No. 2456 of 2023.

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Though notice has validly been served upon the opposite party no.2 yet no one turns up on behalf of the opposite party no.2 inspite of repeated calls.

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The brief fact of the case is that the petitioner has cheated the informant by not paying the cost of hard coke of Rs.21,48,190/-.

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Learned counsel for the petitioner submits by drawing attention of this Court to the charge sheet at page no. 91 of the brief that therein it has been categorically mentioned that the petitioner has paid the value of the hard coke supplied to his establishment by the informant. It is next submitted by the learned counsel for the petitioner that the allegation amounts to a commercial transaction, in which articles were supplied and the consideration amount of the same has been fully paid, so no offence is made out but the I.O. committed a grave illegality in submitting the charge sheet and the learned Chief Judicial Magistrate, Dhanbad has also committed a grave illegality by finding sufficient material to proceed against the petitioner. It is further submitted by the learned counsel for the petitioner that since the hard coke was supplied to the petitioner in course of a commercial transaction, it cannot be said that there is any entrustment of any property to the petitioner and in the absence of the same, the offence punishable under Section 406 of Indian Penal Code is not made out and in the

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absence of any allegation to show that the petitioner had played deception since the beginning of the transaction between the parties, hence, the offence punishable under Section 420 of Indian

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Penal Code is also not made out. In support of his contention, learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court of India in the case of Vesa Holdings Private Limited vs. State of Kerala & Ors. reported in (2015) 8 SCC 293 , paragraph nos. 12 and 13 of which reads as under:-

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“12. From the decisions cited by the appellant, the settled proposition of law is 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 other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out.”

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13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show 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. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.”

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Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

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The learned SC Mines- III on the other hand vehemently opposes the prayer as made in this criminal miscellaneous petition and submits that the petitioner has paid the consideration amount of the articles supplied after institution of the FIR hence, the offence for which cognizance has been taken is squarely made out. Therefore, 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 available in the record, it is pertinent to mention here that the petitioner was entrusted with the hard coke by way of selling the same to the petitioner. Hence, in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. and Ors. vs. State of Uttar

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Pradesh and Anr. reported in 2024 SCC OnLine SC 2248 ,

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paragraph no. 46 of which reads as under:-

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“46. It has been held in State of Gujarat v. Jaswantlal Nathalal [State of Gujarat v. Jaswantlal Nathalal, 1967 SCC OnLine SC 58 : AIR 1968 SC 700 : (1968) 2 SCR 408] : (SCC OnLine SC para 8)

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“8. The term “entrusted” found in Section 405IPC governs not only the words “with the property” immediately following it but also the words “or with any dominion over the property” occurring thereafter—see Velji Raghavji Patel v. State of Maharashtra [Velji Raghavji Patel v. State of Maharashtra, 1964 SCC OnLine SC 185 : AIR 1965 SC 1433 : (1965) 2 SCR 429] . Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another

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or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust — see Jaswantrai Manilal Akhaney v. State of Bombay [Jaswantrai Manilal Akhaney v. State of Bombay, 1956 SCC OnLine SC 46 : AIR 1956 SC 575 : 1956 SCR 483] . The expression “entrustment” carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an “entrustment”.” (Emphasis supplied)

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such taking of hard coke by the petitioner cannot be termed as entrustment as envisaged under Section 405 of Indian Penal Code and in the absence of the same, the offence punishable under Section 406 of Indian Penal Code is not made out.

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So far as the offence punishable under Section 420 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 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

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which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied)

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that in order to constitute the offence of cheating, deception at the very inception is sine-qua-non and 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, there is absolutely no allegation against the petitioner of playing any deception since the beginning of the transaction between the parties. Admittedly, the entire amount of hard coke taken by the petitioner has been paid.

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Under such circumstances, this Court is of the considered view that even if the entire allegations against the petitioner are considered to be true in its entirety, still the offence punishable under Section 420 of Indian Penal Code is not made out.

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In view of the discussions made above, as neither the offence punishable under Section 406 or 419 of Indian Penal Code nor the offence punishable under Section 420 of Indian Penal Code is made out against the petitioner hence, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding as also charge sheet including the order taking cognizance dated 16.10.2023 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad P.S. Case No. 333 of 2018 corresponding to G.R. No. 2456 of 2023 be quashed and set aside.

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