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2024 DIGILAW 897 (JHR)

Shamim Ahmad v. State of Jharkhand

2024-10-18

ANIL KUMAR CHOUDHARY

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JUDGMENT : Anil Kumar Choudhary, J. 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 and set aside the entire criminal proceeding arising out of order dated 16.03.2023, passed by the learned Judicial Magistrate -1st Class, Bokaro in C.P. Case No. 914 of 2022 whereby and where under the learned Magistrate has found prima facie case for the offences punishable under Section 406/420 of the Indian Penal Code. 3. The allegation against the petitioner is that the petitioner is an old acquaintance of the complainant. On 30.09.2016, the petitioner offered the complainant and his friend to invest Rs.5,00,000/- each in the business of the petitioner and promised to return the investment amount within six months and after eight months he will pay an additional amount of Rs.10,00,000/- as profit. An agreement was prepared. The complainant and his friend paid Rs.5,00,000/- each to the petitioner. The petitioner issued cheques as security. After eight months, the petitioner returned Rs.5,00,000/- each to the complainant and his friend. Another agreement was prepared on 03.01.2018 for payment of the profit amount but till 31.10.2018, the petitioner did not pay the promised profit amount of Rs.10,00,000/- each to the complainant and his friend. Later on he agreed to pay the profit amount of Rs.5,00,000/- each instead of Rs.10,00,000/- each. Then on 30.12.2020, the petitioner took Rs.5,00,000/- each from the complainant and his friend as advance for selling his shop and an agreement was prepared. The petitioner returned Rs.2,00,000/- as profit but did not pay the rest amount. On the basis of the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses, the learned Judicial Magistrate -1st Class found prima facie case for the offences punishable under Section 406/420 of the Indian Penal Code against the petitioner and ordered for issuance of summons. 4. It is submitted by the learned counsel for the petitioner relying upon the Judgment of this Court in the case of Satyabhama Dubey @ Satyabhama Devi & Ors. Vs. The State of Jharkhand and Ors., reported in 2024 0 Supreme (Jhk) 171 that therein this Court relied upon the Judgment of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696 , para -10 of which reads as under:- “10. Vs. The State of Jharkhand and Ors., reported in 2024 0 Supreme (Jhk) 171 that therein this Court relied upon the Judgment of Dalip Kaur Vs. Jagnar Singh, 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) Wherein the Hon’ble Supreme Court of India has observed that if the dispute between the parties was essentially a civil dispute, resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute the offence of cheating and similar is the legal position in respect of an offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code. 5. It is next submitted by the learned counsel for the petitioner that in that case, this Court also relied upon the Judgment of Hon’ble Supreme Court of India in the case of Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr., reported in (2007) 7 SCC 373 wherein the Hon’ble Supreme Court of India has observed that when the dispute between the parties is essentially a civil dispute, non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 6. It is then submitted by the learned counsel for the petitioner that in that case, this Court also relied upon the Judgment of 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 no. 6 of which reads as under :- 6. 6. It is then submitted by the learned counsel for the petitioner that in that case, this Court also relied upon the Judgment of 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 no. 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. 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) Wherein the Hon’ble Supreme Court of India 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 the breach of contract would amount to cheating; where there was any deception played at the very inception and if the intention to cheat has developed later on, the same cannot amount to cheating. 7. It is further submitted by the learned counsel for the petitioner that in that case, this Court also relied upon the Judgment of 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. 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 it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 8. It is next submitted by the learned counsel for the petitioner that even if the entire allegations made against the petitioner are considered to be true in their entirety, still it is difficult to discern any element of deception in the whole transaction nor any fraudulent or dishonest intention is attributed to the petitioner since the beginning of the transaction between the parties. Hence, it is submitted that the prayer as made by the petitioner in this criminal miscellaneous petition be allowed. 9. The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as made by the petitioner in this criminal miscellaneous petition and submits that in para-9 of the complaint, it has been specifically alleged that the petitioner cunningly resorted to deceit and has entangled the complainant in the web in a well-organized manner by making them invest money in the business but depriving them of the profit. Therefore, it is submitted that both the offences punishable under Section 406 as well as under Section 420 of the Indian Penal Code is made out against the petitioner. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 10. Therefore, it is submitted that both the offences punishable under Section 406 as well as under Section 420 of the Indian Penal Code is made out against the petitioner. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 10. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the initial transaction between the parties was on 30.09.2016. The complaint was filed more than three years thereof on 01.08.2022. The petitioner has admittedly paid the initial amount of Rs.5,00,000/- each invested by the complainant and his friend to them and the petitioner has even paid Rs.2,00,000/- of the profit amount. So even if the allegation made against the petitioner are considered to be true, this Court is of the considered view that there is no element of deception being played by the petitioner since the beginning of the transaction between the parties. Though it is the admitted case of the complainant itself that the petitioner gave security cheques to the complainant, it remains unexplained, as to why the complainant did not present the cheques given by the petitioner for realization of the remaining amount. So far as the separate transaction of taking advance for selling shop of the petitioner is concerned, the same is basically a civil dispute between the parties and there is no allegation of any dishonest misappropriation of the entrusted property or the dishonest retention of the same by the petitioner. 11. Under such circumstances, this Court is of the considered view that the dispute between the parties is basically a civil dispute and a cloak of criminal offence is being given to it in order to harass the petitioner and even if the entire allegation against the petitioner are considered to be true in their 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, continuation of this criminal proceeding will amount to abuse of process of law. Hence, continuation of this criminal proceeding will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding arising out of order dated 16.03.2023, passed by the learned Judicial Magistrate -1st Class, Bokaro in C.P. Case No. 914 of 2022 whereby and where under the learned Magistrate has found prima facie case for the offences punishable under Section 406/420 of the Indian Penal Code be quashed and set aside. 12. Accordingly, the entire criminal proceeding arising out of order dated 16.03.2023, passed by the learned Judicial Magistrate -1st Class, Bokaro in C.P. Case No. 914 of 2022 whereby and where under the learned Magistrate has found prima facie case for the offences punishable under Section 406/420 of the Indian Penal Code is quashed and set aside. 13. In the result, this criminal miscellaneous petition is allowed.