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Jharkhand High Court · body

2014 DIGILAW 586 (JHR)

Ram Parvesh Ray v. State of Jharkhand

2014-05-05

R.R.PRASAD

body2014
ORDER Heard the parties. 2. This application has been filed for quashing of the entire criminal proceedings of P.C.R. Case No. 79 of 2008, including the order dated 8.7.2010, whereby and whereunder cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code has been taken against the petitioner. 3. Before adverting to the submissions advanced on behalf of the parties, case of the complainant needs to be taken notice of. 4. It is the case of the complainant that the complainant, in terms of the agreement entered into in between the petitioner and the complainant, did supply 758 Wagons of stone chips to the petitioner during period from 2.2.2007 to 2.9.2007. Thereupon, part payment was made but a sum of Rs. 44,37,000/- remained to be paid for which promise was made that the same would be paid by 3.10.2007 but the petitioner failed to make payment. 5. Further allegation is that when the complainant had insisted upon to make payment, he was brought by the petitioner to Panchayat where the complainant was forced to sign two cheques of Rs. 6 lakh each. 6. On such allegation, a complaint bearing P.C.R. Case No. 79 of 2008 was lodged under Sections 406 and 420 of Indian Penal Code. In such complaint, when cognizance of the offences as aforesaid was taken vide order dated 8.7.2010, it was challenged before this Court. 7. Mr. Shailesh, learned counsel appearing for the petitioner, submits that accepting the entire allegations to be true, no offence of cheating is made out, as the petitioner has never been alleged to have defrauded the complainant in any manner, rather the case, at best, happens to be a case of breach of trust but not a case of criminal breach of trust and therefore, the complainant for redressal of his grievance should have approached to the competent court of civil jurisdiction. 8. As against this, Mr. K.P. Deo, learned counsel appearing for the complainant-opposite party no. 2, submits that it is the case of the complainant that in spite of stone chips being supplied, the petitioner did not make full payment rather paid in part and thereby retained a sum of Rs. 44,37,000/- dishonestly and hence the court did not commit any illegality in taking cognizance against the petitioner. 9. 2, submits that it is the case of the complainant that in spite of stone chips being supplied, the petitioner did not make full payment rather paid in part and thereby retained a sum of Rs. 44,37,000/- dishonestly and hence the court did not commit any illegality in taking cognizance against the petitioner. 9. In view of the stand taken on behalf of the parties, one needs to take notice of the provisions, as contained in Section 415 of the Indian Penal Code, which reads as follows: “Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat”. 10. From its reading, it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.” 11. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception ? 12. Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception ? 12. In the ordinary sense, deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that first element of deception constituting an offence of cheating is lacking, as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioner in any manner. In that event, no offence under Section 420 of Indian Penal Code is made out against the petitioner. 13. So far as the offence under Section 406 of Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under: “405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. 14. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. 14. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. (a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 15. In the background of the allegation made in the complaint, I do not find any case of criminal breach of trust being made out, rather in the facts and circumstances, the case does appear to be of breach of agreement which could have been enforced in the competent court of civil jurisdiction. 16. Under the circumstances, entire criminal proceedings of P.C.R. Case No. 79 of 2008, including the order dated 8.7.2010, taking cognizance under Sections 406 and 420 of Indian Penal Code against the petitioner, is hereby set aside. 17. In the result, this application is allowed. 18. Let this order be communicated through FAX at the cost of the petitioner.