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2023 DIGILAW 1429 (JHR)

Anand Kumar v. State of Jharkhand

2023-12-05

ANIL KUMAR CHOUDHARY

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JUDGMENT : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY 1. Heard the parties. 2. 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 order dated 25.05.2019, passed by the learned Judicial Magistrate -1st Class, Lohardaga in connection with Complaint Case No. 134 of 2019, now pending in the court of learned Judicial Magistrate -1st Class, Lohardaga. 3. The allegation against the petitioner is that the complainant handed over four number of cheque leaves to the co-accused –Anand Kumar and using the said cheque leaves, the accused persons of the case collected some money from the market but did not return the cheques. The cheques issued by the complainant have not been used for any payment. The complainant was having no money in his account. No one has instituted any case against the complainant in respect of the cheques given by him to the accused persons. The learned Magistrate taking into consideration the complaint, statement under solemn affirmation of the complainant and the statement of the inquiry witnesses took cognizance for the offences punishable under Section 406/420 read with Section 34 of the Indian Penal Code against the petitioner vide order dated 25.05.2019. 4. It is submitted by the learned counsel for the petitioner that even if the allegation made in the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses are considered to be true in its entirety, still neither the offence punishable under Section 406 nor the offence punishable under Section 420 of the Indian Penal Code, is made out. Hence, it is submitted that the order dated 25.05.2019, passed by the learned Judicial Magistrate -1st Class, Lohardaga in connection with Complaint Case No. 134 of 2019 qua the petitioner be quashed and set aside. 5. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer for quashing the order dated 25.05.2019, passed by the learned Judicial Magistrate -1st Class, Lohardaga in connection with Complaint Case No. 134 of 2019. It is submitted by the learned counsel for the opposite party no.2 that there is direct allegation against the petitioner of misusing cheques of the complainant, hence the petitioner has committed the offence punishable both under Section 406/420 of the Indian Penal Code. 6. It is submitted by the learned counsel for the opposite party no.2 that there is direct allegation against the petitioner of misusing cheques of the complainant, hence the petitioner has committed the offence punishable both under Section 406/420 of the Indian Penal Code. 6. Having heard the submissions made at the Bar and after going through the materials 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 Dalip Kaur and Ors. Vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , para 10 of which reads as under :- “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 nonrefunding 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) 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. 7. It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 , para - 18 of which reads as under :- “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied) that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons. It must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 8. Now coming to the facts of the case, the only allegation against the petitioner is of taking four cheques. There is no allegation against the petitioner of cheating the complainant or inducing him to deliver the cheques. There is no allegation against the petitioner of having used the cheques taken by him to withdraw money from the bank account of the complainant nor is there any case having been instituted by anybody against the petitioner in respect of the cheques allegedly taken by the petitioner from the complainant and the complainant admitted that no amount from the bank account of the complainant has been withdrawn by using the cheques and there is no allegation of any misuse of the cheques. 9. Under such circumstances, this Court is of the considered view that even if the allegation made in the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses are taken to be true in its entirety, still neither the offence punishable under Section 406 of the Indian Penal Code nor the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioner. Hence, continuation of cognizance order against the petitioner will amount to abuse of process of court and this is a fit case where the order taking cognizance dated 25.05.2019, passed by the learned Judicial Magistrate -1st Class, Lohardaga in connection with Complaint Case No. 134 of 2019 be quashed and set aside qua the petitioner. 10. Accordingly, the order taking cognizance dated 25.05.2019, passed by the learned Judicial Magistrate -1st Class, Lohardaga in connection with Complaint Case No. 134 of 2019 is quashed and set aside qua the petitioner. 11. In the result, this criminal miscellaneous petition is allowed.