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2023 DIGILAW 975 (JHR)

Mukesh Kumar Sharma v. State of Jharkhand

2023-08-02

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding in connection with P.C.R. Case No.389 of 2016 including the order taking cognizance dated 20.11.2017 whereby and where under the learned Judicial Magistrate-1st Class, Dumka took cognizance against the petitioner under Sections 420 and 34 of the Indian Penal Code. 3. The allegation against the petitioner is that the petitioner took Aadhar Card, PAN Card, two passport size photographs and two blank signed cheques of the complainant/opposite party No.2 with the promise of giving him distributorship and the complainant also transferred Rs.30,000/- to the Bank account of the complainant and the petitioner even attempted to withdraw money illegally by using one of those cheques but the same got dishonoured. 4. Learned counsel for the petitioner submits that the petitioner has already deposited Rs.30,000/- in shape of a demand draft in favour of the complainant in terms of the order passed in A.B.A. No.6489 of 2019. It is next submitted that there is no allegation that the petitioner had any intention of cheating the complainant/opposite party No.2 since the beginning and at best the dispute between the parties is a civil dispute. It is further submitted that even if the allegations made in the complaint are considered to be true in its entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner. Hence, it is submitted that the entire criminal proceeding in connection with P.C.R. Case No.389 of 2016 and including the order taking cognizance dated 20.11.2017 be quashed and set aside. 5. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer for quashing the entire criminal proceeding in connection with P.C.R. Case No.389 of 2016 including the order taking cognizance dated 20.11.2017 and submit that there is sufficient material in the record to constitute the offence punishable under Section 420 of the Indian Penal Code. 6. 6. Having heard the submissions made at the Bar and after carefully going through the materials available 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 non-refunding 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 the intention to cheat since the very inception is sine qua non to constitute the offence punishable under Section 420 of the Indian Penal Code. 7. After going through the materials available in the record, this Court do not find any material in the record to suggest that there is any allegation against the petitioner that he had any intention to cheat the complainant from the very inception. The dispute between the parties is a civil dispute. Hence, in the considered opinion of this Court, this Court is of the considered opinion that the entire criminal proceeding in connection with P.C.R. Case No.389 of 2016; including the order taking cognizance dated 20.11.2017, as prayed for by the petitioner be quashed and set aside. 8. Accordingly, the entire criminal proceeding in connection with P.C.R. Case No.389 of 2016 and including the order taking cognizance dated 20.11.2017, is quashed and set aside. 9. In the result, this Cr.M.P. stands allowed. 10. In view of the disposal of the instant Cr.M.P., interim order granted earlier vide order dated 11.05.2022 stands vacated.