Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 898 (JHR)

Rakesh Kumar Paswan v. State of Jharkhand

2024-10-18

ANIL KUMAR CHOUDHARY

body2024
JUDGMENT : Anil Kumar Choudhary, J. 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 and set aside the entire criminal proceeding along with the order dated 20.04.2023 passed in Criminal Revision No.06/2020 by the learned Addl. Sessions Judge-II, Seraikella whereby and where under the learned Addl. Sessions Judge-II, Seraikella has set aside the order dated 10.02.2020 passed by the learned Sub-Divisional Judicial Magistrate, Seraikella and directed the learned SDJM, Seraikella to pass a fresh order in view of the discussion made in the said order of the Revisional Court in connection with Protest Petition No.6100 of 2017 arising out of Adityapur P.S. Case No.183 of 2013 and the second prayer has been made for quashing the consequential order dated 16.12.2023 passed by the learned SDJM, Seraikella in Protest Petition No.6100 of 2017 by which the learned SDJM, Seraikella has found prima facie case for the offences punishable under Section 406/420 read with 34 of Indian Penal Code inter alia against the petitioners. 3. The allegation against the petitioners is that on 10.12.2011, the petitioner no.1 came to the residence of the complainant with the proposal of running a petrol pump, which was allotted to the petitioner no.1. The complainant discussed the matter with his own father and on 29.11.2011 both the petitioners along with the co-accused Basudeo Ram Paswan came to the house of the complainant and it was agreed to between the parties that a partnership deed of agreement will be executed in which petitioner no.1 and the complainant will be partners both having equal share in profit and loss and capital will be invested equally. It was also decided that the complainant will spent Rs.35,00,000/- (Thirty five lakhs) as capital which will be adjusted when the work improves and financial position of Rajesh Kumar Paswan is stabilized, accordingly, a deed of agreement was executed between the complainant and the petitioner no.1 in which the petitioner no.2 and others were witnesses. In terms of the said agreement, the complainant made available Rs. 35,00,000/- as initial capital and the business of petrol pump was started. Even after, spending a huge amount from his resources by the complainant, the petrol pump did not yield profit. In terms of the said agreement, the complainant made available Rs. 35,00,000/- as initial capital and the business of petrol pump was started. Even after, spending a huge amount from his resources by the complainant, the petrol pump did not yield profit. The petitioners and the co-accused person requested the complainant to give petitioner no.1 Rs.22,000/- per month including petrol and diesel for day to day expenditure of the petitioner no.1 which was to be adjusted in the account and accordingly, the complainant regularly paid Rs.22,000/- per month through cheque or cash for 10 months, but the petitioners and the co-accused persons did not cooperate in running the petrol pump business smoothly and made the request to the authority for stoppage of supply of petrol and diesel. It is alleged that the petitioners deceitfully persuaded the complainant to invest his personal capital of Rs.35,00,000/- and thus the petitioners and the co-accused persons have cheated the complainant and committed criminal breach of trust. The complainant filed Complaint Case No.131/2013 in the Court of Chief Judicial Magistrate, Seraikella, Kharsawan which was referred to police under Section 156(3) Cr.P.C. basing upon which Adityapur P.S. Case No.183 of 2013 was registered and police after investigation of the case submitted Final Report showing lack of evidence against the petitioners. The complainant filed a protest petition which is registered as Complaint Case No.6100 of 2017. 4. On the basis of the complaint, statement on solemn affirmation of the complainant and the statement of inquiry witnesses, the learned SDJM, Seraikella, Kharsawan vide order dated 10.02.2020 did not find prima facie case for the offences punishable under Section 406, 420, 467, 468, 506, 120B of Indian Penal Code and dismissed the complaint under Section 203 of Cr.P.C. 5. Being aggrieved by the said order dated 10.02.2020 in Complaint Case No.6100 of 2017, the Complainant filed Criminal Revision No.06 of 2020 in the Court of learned Sessions Judge, Seraikella which was ultimately heard and disposed of by the learned Additional Sessions Judge-II, Seraikella vide order dated 20.04.2023. Being aggrieved by the said order dated 10.02.2020 in Complaint Case No.6100 of 2017, the Complainant filed Criminal Revision No.06 of 2020 in the Court of learned Sessions Judge, Seraikella which was ultimately heard and disposed of by the learned Additional Sessions Judge-II, Seraikella vide order dated 20.04.2023. The learned Additional Sessions Judge-II, Seraikella considered that the complaint discloses commission of criminal offences by the proposed accused persons and that civil case and criminal proceeding both can be initiated for the same cause of action, hence, set aside the order dated 10.02.2020 passed by the learned SDJM, Seraikella and directed the learned SDJM, Seraikella to pass a fresh order in view of the discussions made in the said judgment. Consequent upon that, the learned SDJM, Seraikella vide order dated 16.12.2023 found prima facie case for the offences punishable under Section 406, 420 read with Section 34 of Indian Penal Code is made out against the petitioners and ordered issuance of summons to them. 6. Learned counsel for the petitioners relying upon the judgment of Hon’ble Supreme Court of India in the case of Naresh Kumar & Anr. vs. The State of Karnataka & Anr. reported in 2024 INSC 196 submits that therein Hon’ble Supreme Court of India has referred to its earlier judgment in the case of Paramjeet Batra v. State of Uttarakhand reported in (2013) 11 SCC 673 wherein it was observed by the Hon’ble Supreme Court of India that in cases relating to civil transaction which may also have a criminal texture, the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court. It is further submitted that in that case, the Hon’ble Supreme Court of India has also taken note of its earlier judgment in the case of Usha Chakraborty & Anr. v. State of West Bengal & Anr. It is further submitted that in that case, the Hon’ble Supreme Court of India has also taken note of its earlier judgment in the case of Usha Chakraborty & Anr. v. State of West Bengal & Anr. reported in 2023 SCC OnLine SC 90 wherein it was held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure. It is next submitted that in that case, the Hon’ble Supreme Court of India also referred to its earlier judgment in the case of Sarabjit Kaur v. State of Punjab and Anr. reported in (2023) 5 SCC 360 wherein it was held that a mere breach of contract by one of the parties would not attract criminal offence in every case. Further, the Hon’ble Supreme Court of India has referred to its earlier judgment in the case of Vesa Holdings (P) Ltd. v. State of Kerala reported in (2015) 8 SCC 293 which was to the effect that every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise. 7. Learned counsel for the petitioners next relied upon the judgment of this Court in the case of Kaldip Singh @ Kuldeep Singh @ Kuldip Singh vs. The State of Jharkhand & Anr. in Cr.M.P. No.1373 of 2023 dated 05.07.2024 wherein this Court relied upon the judgment of Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another 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) 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 breach of contract would amount to cheating where there was any deception played at the very inception. 8. Learned counsel for the petitioners submit that dispute between the parties is essentially a civil dispute and the complainant has also filed Money Suit No.09/2016 against the petitioners for recovery of Rs.30,00,000/- (thirty lakhs) which is still Sub Judice in the court of Civil Judge (Senior Division), Seraikella. In this respect, the learned counsel for the petitioner draws the attention of the Court to Annexure-15 of the brief which is plaint of the said Money Suit. Hence, it is submitted that a cloak of criminal offence is being given by the complainant to a pure civil dispute only between the parties; for the purpose of wreaking vengeance and harassing the petitioners, hence, the prayer, as prayed for in the instant Cr.M.P, be allowed. 9. Learned Addl.P.P. appearing for the State on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submits that materials in the record is sufficient to constitute the offence under Section 406 & 420 read with 34 of Indian Penal Code, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 10. 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 an admitted case of the complainant that there was an agreement of partnership for running the petrol pump and the petrol pump ran into loss and subsequently the same was closed down. There is absolutely no allegation against the petitioners that since the beginning of the transaction between the parties, the petitioner had the intention to deceive the complainant. There is no allegation against the petitioners of committing any dishonest misappropriation or retaining money dishonestly. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Sarabjit Kaur v. State of Punjab and Anr. (Supra) reported in (2023) 5 SCC 360 paragraph-13 of which reads as under:- “13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court.” 11. 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 & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:- “18. 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 & Others vs. State of Bihar & Another 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 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. 12. Now, coming to the facts of the so far as the offence punishable under Section 420 of the Indian Penal Code is concerned, there is absolutely no allegation against the petitioner that the petitioner played deception since the beginning of the transaction between the parties rather admittedly the business was started and it ran for considerable period of time over a year but ultimately it failed to yield any profit. 13. 13. Under such circumstances, this Court is of the considered view that even if the entire allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 420 of Indian Penal Code is not made out. 14. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, in the absence of any allegation that the petitioners dishonestly disposed of any property entrusted to them or dishonestly retained the same merely investing some money in a partnership business by one of the partners cannot be said to be an entrustment of the money to the other partner, hence, even if the entire allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of Indian Penal Code is not made out. 15. Under such circumstances, this Court has no hesitation in holding that the learned Addl. Sessions Judge-II, Seraikella, Kharsawan has committed a grave illegality by setting aside the order dated 10.02.2020 passed by the learned SDJM, Seraikella in Complaint Case No.6100 of 2017 and the learned SDJM, Seraikella has also committed a grave illegality by holding that prima facie case is made out against the petitioners under Section 406 & 420 read with 34 of Indian Penal Code in the order dated 16.12.2023 in Complaint Case No.6100 of 2017. Accordingly, this court is of the considered view that continuation of the entire criminal proceeding including the order dated 20.04.2023 in Criminal Revision No.06 of 2020 passed by the Addl. Sessions Judge-II, Seraikella, Kharsawan and the order dated 16.12.2023 passed in Complaint Case No.6100 of 2017 passed by the learned SDJM, Seraikella will amount to abuse of process of law, hence the same is liable to be quashed and set aside. 16. Accordingly, the entire criminal proceeding including the order dated 20.04.2023 in Criminal Revision No.06 of 2020 passed by the Addl. Sessions Judge-II, Seraikella, Kharsawan and the order dated 16.12.2023 passed in Complaint Case No.6100 of 2017 passed by the learned SDJM, Seraikella are quashed and set aside and the order dated 10.02.2020 passed in Complaint Case No.6100 of 2017 of the Court of learned SDJM, Seraikella is restored. 17. In the result, this Cr.M.P., stands allowed.