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2005 DIGILAW 232 (PAT)

Ashok Kumar Lakhaiyar v. State of Bihar

2005-03-01

body2005
ORDER Petitioners above named have preferred this petition under section 482 of the Code of Criminal Procedure for quashing entire prosecution in Complaint Case No. 597(C) 2002 as well order of cognizance dated 13.8.2002 whereby the learned Judicial Magistrate, first class, Patna had ordered issuance of processes against the petitioners for facing trial for offences under sections 406, 420 and 120(B) of the Indian Penal Code. In this case notice was issued upon opposite party no.2, the complainant to show cause as to why this application should not be heard and disposed of at this stage. 2. Learned counsel for the petitioners and opposite party no.2 as well learned Additional Public Prosecutor have been heard. The opposite party no. 2, complainant had filed the complaint alleging therein that he was Director of J.C.C. Buildcon (I) Private Limited which was a partnership Firm, and was approached by petitioner no.1 for selling the concerned land for which sale deed was to be executed by petitioner no.2, and the complainant thereafter approached petitioner no.2 and it was agreed upon that for a consideration of Rs.5,44,452/- the land would be so sold. Petitioner no.2, thereafter, left Patna to attend his classes asking the complainant to hand over advance money to petitioner no.1, his father, and the complainant handed over a bank draft for Rs.2,00,000/- and Rs.50,000/ - in cash and a deed of agreement was prepared on 6.6.1999 upon which petitioner no.1 made endorsement of receipt of the advance amount on behalf of petitioner no.2 and the partner of the Firm also signed thereupon. As per the terms the registration of the sale deed was to be completed by 30.9.1999 but since the stipulated time passed without any registration. Complainant approached the father, accused, at Calcutta and received assurance from him where after petitioner no. 1 was transferred to Patna. 3. Further allegation is that on 20.2.2000 when complainant went to see petitioner no. 1, he found him having left Patna. A legal notice was also sent, but of no avail. 4. The simple argument on behalf of the petitioners was that even if all the allegations made in the complaint are accepted, the allegations nowhere show that at the time the negotiations were completed, any of the petitioners had criminal intent to commit criminal breach of trust or to cheat the complainant. 5. 4. The simple argument on behalf of the petitioners was that even if all the allegations made in the complaint are accepted, the allegations nowhere show that at the time the negotiations were completed, any of the petitioners had criminal intent to commit criminal breach of trust or to cheat the complainant. 5. A copy of the said agreement has also been filed upon which the petitioners and opposite party no.2, both sides have relied. 6. Sri Kanhaiya Prasad Singh, the learned senior Advocate appearing on behalf of opposite party no.2 submitted that the subsequent action of the petitioners amply exhibited that they had entered into the agreement with dishonest intentions. It was submitted that with such intention the deed of agreement was signed by opposite party no.1 though the land was to be sold by opposite party no.2, and by a partner of the Firm. However, this can hardly show a criminal intention because in the complaint itself it has been stated as to under what circumstances the agreement was so signed. 7. On behalf of the petitioners it was submitted that as per admission in the complaint (as well in the deed of agreement) the registration was to be completed by 30.9.1999 and as per terms of the agreement the vendee company was to get it registered by the cut-off date after obtaining permission from the competent authority under the Urban Land Ceiling and Regulation) Act, 1976 by that date. It was argued that the complainant not having gone by the terms of the agreement, it could not be argued on his behalf that the petitioners had criminal intention at the time they entered into the agreement. 8. Both sides have relied upon certain decisions. On behalf of the petitioners a decision of the Apex Court in the case of Hirdaya Ranjan Pd. Verma Vs. State of Bihar; A.I.R. 2000 Supreme Court 2341 [:2000(3) PLJR (SC) 137], has been relied upon in which their Lordships had made a distinction between a breach of contract and offence of cheating. Their Lordships had observed, thus- 'The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Their Lordships had observed, thus- 'The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed." 9. In the case of Hari Prasad Chamaria Vs. Bishun Kumar Surekha and others; A.I.R. 1974 Supreme Court 301, the appellant had intended to start business in his own name and had advanced money but the respondents had refused to render accounts, or to return money. Their Lordships held that the respondents could not be held criminally liable under section 420 as there was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money nor did the complaint indicated that the respondents had induced the appellant to pay them the amount parted with. 10. On the other hand, the learned counsel for opposite party no.2 relied upon a decision of the Supreme Court in the case of Vitoori Pradeep Kumar Vs. Kaisula Dharmaiah and others; A.I.R. 2001 S.C.W. 2286. However, the only question that was considered by their Lordships was whether a criminal prosecution could be quashed simply because for the same subject matter a civil suit was pending. Their Lordships a1so noticed that there was also an earlier order of the High Court itself. This point, however, is not involved in this case. It is well settled that, same set of facts could give rise to a civil action as well a criminal prosecution but for launching a criminal prosecution, in a complaint case, the complaint must disclose the ingredients which fulfil the requirements of the offence alleged. 11. This point, however, is not involved in this case. It is well settled that, same set of facts could give rise to a civil action as well a criminal prosecution but for launching a criminal prosecution, in a complaint case, the complaint must disclose the ingredients which fulfil the requirements of the offence alleged. 11. It is well settled that if a complaint does not disclose ingredients of an offence said to have been committed by the accused, the complaint and consequential criminal proceeding have to be struck down. 12. In so far as offence of criminal breach of trust is concerned, the complaint must give out the facts to show prima facie that the property so entrusted was dishonestly misappropriated or converted to own use by the accused. This dishonest intention whether in case of criminal breach of trust or in case of cheating has to be shown at the beginning of the transaction. 13. I do not find anything in the complaint which would prima-facie show that the petitioners had any dishonest intention at the time the parties had reached an agreement for the sale and purchase of the landed property. The complaint itself states that the transactions were to be completed within a time framed and this complaint was filed in April, 2002, much beyond the stipulated date. The allegations, as made out in the complaint, in my opinion may make out a case for civil action for breaqch of contract but in view of what, has been discussed, it is clear that no criminal action would lie against the petitioners. This being so, this petition is allowed and impugned order of cognizance dated 13.8.2002, as aforesaid, and the prosecution in Complaint Case No. 597(C) of 2002 are hereby quashed.