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2017 DIGILAW 1263 (JHR)

Anil Jolly v. State of Jharkhand

2017-07-26

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT : 1. Heard learned counsel appearing for the petitioner as well as learned Addl. P.P. for the State assisted by learned counsel for the opposite party no.2. 2. This criminal miscellaneous petition has been filed under section 482 of the Code of Criminal Procedure for quashing the entire F.I.R. including all proceedings of Jharia P.S. Case No.199 of 2006 corresponding to G.R. No.1779 of 2006 instituted for the offences punishable under Sections 420/406/409 of the I.P.C. 3. In the complaint, which was subsequently registered as FIR after the same was referred by the Judicial Magistrate to police under section 156(3) Cr.P.C., the case of the complainant-informant, who is the opposite party no.2 of this petition, in a nutshell is that the complainant is a coal trader. The petitioner, who is the sole accused person of the complaint, introduced himself to be a broker/agent and assuring that he will make payment between 20 to 25 days, he has been taking coal from the complainant-informant and was also making the payment from time to time. In the complaint it has been mentioned that the petitioner- accused in total has paid Rs. 4,50,000/- but there is an outstanding of Rs. 2,71,650/- due and payable by the petitioner-accused to the complainant-informant. The petitioner- accused deferred payment of the outstanding amount on one pretext or other. He avoided receiving the legal notice issued by the complainant and managed to get the same returned, hence the complaint. 4. At the time of hearing the learned counsel for the petitioner drew the attention of this Court to page no.24 of the brief which is the internal page no. 4 of the complaint-FIR and submitted that it has been mentioned therein that the accused person has paid Rs. 4,50,000/- to the complainant-informant and after that there is an outstanding amount of Rs.2,71,650/- due and payable by the accused-petitioner to the complainant-informant. Thus admittedly Rs.7,21,650/- was the total amount the complainant-informant was to receive from the petitioner. 4 of the complaint-FIR and submitted that it has been mentioned therein that the accused person has paid Rs. 4,50,000/- to the complainant-informant and after that there is an outstanding amount of Rs.2,71,650/- due and payable by the accused-petitioner to the complainant-informant. Thus admittedly Rs.7,21,650/- was the total amount the complainant-informant was to receive from the petitioner. Further the learned counsel for the petitioner drew the attention of the Court to page no.23 of the brief which is the internal page no.3 of the said complaint-F.I.R. wherein it has been mentioned that the accused petitioner paid Rs.1,00,000/- and after some days paid Rs.1,50,000/- and one and half months after sending the coal the accused petitioner has further paid Rs.1,50,000/- and ten days thereafter he paid Rs.1,50,000/- and in the internal page no.4 of the complaint-F.I.R. which is the page no.24 of the brief, it has further been mentioned that 25 days thereafter the accused petitioner paid Rs.1,00,000/- and two months thereafter the accused petitioner paid Rs.50,000/-. Thus admittedly a total sum of Rs.7,00,000/- has been paid by the accused-petitioner to the complainant-informant. But because of an arithmetical error, the total amount paid by the accused petitioner to the complainant-informant has wrongly been mentioned as Rs.4,50,000/- in the said internal page no.4 of the complaint-F.I.R. Further it is submitted that the averments made in the complaint depicts that there were simple business transactions between the parties. There is no allegation that the accused petitioner has any fraudulent or dishonest intention or any culpable intention right at the beginning of the transactions. Hence, the F.I.R. was maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge. Therefore, the F.I.R. and criminal proceeding initiated basing thereupon be quashed. 5. Learned Addl. P.P. and the learned counsel for the opposite party no.2 defended the F.I.R. and submitted that it is settled principle of law that for the same cause of action both civil dispute as well as criminal cases can be instituted and hence, the petitioner having cheated opposite party no.2, this criminal miscellaneous petition has no merit and the same be dismissed. 6. The Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 in paragraph – 108 has held as under: “108. 6. The Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 in paragraph – 108 has held as under: “108. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and the principles of law enunciated by this in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following category of cases by way of illustration wherein the power of the Court be exercised either to prevent the abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 7. In the case of S.W. Palanitkar Vs. State of Bihar, reported in (2002) 1 SCC 241 , the hon'ble Apex Court observed in para 8 as follows : “8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. 8. In the case of Hridaya Ranjan Prasad Verma Vs. State of Bihar reported in (2000) 4 SCC 168 , the hon'ble Apex Court in para 15 held as under:- '15. In determining the question it has to be kept in mind that 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. 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 Rashmi Jain Vs. State of U.P. & Anr., reported in (2014) 13 SCC 553, in the facts and circumstances of that case which was as under :- “On 22.03.2009, the applicant met the accused in the market of Bazarganj Saraitareen and asked for his balance amount, but the accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don't know me. I have not paid to the high and mighty people, who are you. I had to usurp your money and I had done so. Thereafter she went in a car.” The hon'ble Apex Court in paragraph-6 of the judgment held as under:- “In our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. In our opinion, these are allegations which on the face of it, cannot be taken seriously by any reasonable person. In our opinion, these are allegations which on the face of it, cannot be taken seriously by any reasonable person. The High Court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial court.” And went on to hold as under in paragraph -11 of the said judgment: In our opinion, the case pleaded by the petitioner squarely falls within the ambit of propositions 5 and 7 of Bhajan lal’s case(supra). 10. Considering the aforesaid facts and circumstances of the case and the law as discussed above, it is crystal clear that there is an arithmetical error in arriving at the total amount, the petitioner-accused has paid to the complainant-informant. Even assuming the averments made in the complaint-FIR is true, still the petitioner –accused is liable to pay only an amount of Rs. 21,650/- when has admittedly paid Rs. 7,00,000/-to the complainant-informant. There is no specific allegation against the petitioner that the accused petitioner was having any criminal intention right at the beginning of the transaction. Certainly for the failure on the part of the petitioner-accused to repay only Rs. 21,650/- when has admittedly paid Rs. 7,00,000/-to the complainant-informant, such a culpable intention right at the beginning, that is, when he took the coal from the complainant-informant, cannot be presumed. 11. For the reasons afore mentioned, I am of the opinion that this is a fit case where the F.I.R. and criminal proceeding initiated based thereon is fit to be quashed. 12. Accordingly, the petition filed by the petitioner under Section 482 of the Cr.P.C. is allowed and the F.I.R. and criminal proceeding initiated basing thereon in connection with Jharia P.S. Case No.199 of 2006 corresponding to G.R. No.1779 of 2006 is quashed.