Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 47 (JHR)

Amitabh Thakur v. State of Jharkhand

2024-01-10

ANIL KUMAR CHOUDHARY

body2024
JUDGMENT : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY 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 F.I.R. of Kadma P.S. Case No.147 of 2022 registered for the offence punishable under Sections 406 and 420 of the Indian Penal Code arising out of Complaint Case No.418 of 2021 along with entire criminal proceedings of the said case which is now pending before the learned S.D.J.M., Jamshedpur. 3. The brief facts of the case is that the petitioner availed a loan for working capital of Rs.6,00,000/- on 19.09.2017 from the complainant Bank by executing various loan documents but subsequently he defaulted in repayment of the loan amount and changed his residential address and mobile number without informing the Bank as the complainant- Bank was of the feeling that right from the beginning the petitioner-accused approached the Bank with dishonest intention of cheating and committed criminal breach of trust and due to this reason he has planned with cool mind and changed his residential address and committed criminal breach of trust for his illegal gain causing illegal loss to Bank. Hence, Complaint Case No.418 of 2021 has been filed which upon being referred to police under Section 156 (3) of Cr.P.C., the F.I.R. of Kadma P.S. Case No.147 of 2022 has been registered in which investigation is going on. 4. Learned counsel for the petitioner relies upon the judgment of this Court in the case of Mr. Gunjan Koushik vs. The State of Jharkhand & Another dated 23rd of November, 2023 passed in Cr.M.P. No.2050 of 2022 wherein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 paragraph-6 of which reads as under:- 6. “Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. “Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) And this Court reiterated the settled principle of law that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating; where there was any deception played at the very inception. If the intention to cheat has developed later on, the same will not amount to cheating. 5. Learned counsel for the petitioner draws the attention of this Court towards the supplementary affidavit and submits that as although the fact that the loan was availed in the year 2017 but the complaint having been filed in the year 2021 which shows that for four years the petitioner was satisfactorily maintaining the accounts with the complainant-Bank and four years is too long a period to allege that since the beginning of availing the loan the petitioner had the intention to cheat the complainant- Bank. Hence, it is submitted that the complainant- Bank has given a cloak of criminal offence to a purely civil dispute. It is lastly submitted that the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of Complaint Case No.418 of 2021 along with entire criminal proceedings of the said case which is now pending before the learned S.D.J.M., Jamshedpur, be quashed and set aside. 6. Learned Addl.P.P. appearing for the State and learned counsel for the opposite party No.2 vehemently oppose the prayer of the petitioner to quash and set aside the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of Complaint Case No.418 of 2021 along with entire criminal proceedings of the said case and submit that it not the case of mere default in repayment of loan amount but additionally the petitioner has changed his residential address and mobile number without informing the Bank. Hence, the same shows a criminal intention of the petitioner which is sufficient to constitute the offence punishable under Sections 406 and 420 of the Indian Penal Code. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rival 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 Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 , paragraph-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. 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 property has been retained by the accused persons but must also has to be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same and the mere fact that the accused did not pay money to the complainant does not amount to criminal breach of trust. 8. 8. Now, coming to the facts of this case, undisputedly the petitioner was a borrower of the complainant- Bank for about four years and he defaulted apparently after satisfactorily having his loan facility with the complainant- Bank for about four years. Assuming for the sake of arguments that the petitioner had the intention to deceive the complainant- Bank since the beginning it is highly unlikely that he would have waited for four years to default in making repayment of the loan amount. 9. The petitioner in paragraph-14 of the instant Cr.M.P., in categorical terms has mentioned that the petitioner has never changed his mobile number and the same is still active which remains undisputed. There is no allegation against the petitioner of having dishonestly disposing of the loan availed by him in some way or dishonestly retaining the same. 10. Under such circumstances, this Court is of the considered view, even though the entire allegation against the petitioner made in the complaint which has been treated as written report of the F.I.R., is treated 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 against the petitioner, hence, the continuation of this criminal proceeding will amount to abuse of process of law and this is a fit case where the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of Complaint Case No.418 of 2021 along with entire criminal proceedings of the said case which is now pending before the learned S.D.J.M., Jamshedpur, as prayed for by the petitioner, be quashed and set aside. 11. Accordingly, the F.I.R. of Kadma P.S. Case No.147 of 2022 arising out of Complaint Case No.418 of 2021 along with entire criminal proceedings of the said case which is now pending before the learned S.D.J.M., Jamshedpur, as prayed for by the petitioner, is quashed and set aside. 12. In the result, this Cr.M.P. stands allowed.