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2025 DIGILAW 1681 (JHR)

Punam Sharma v. State of Jharkhand

2025-08-13

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 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding including the order dated 19.02.2020, passed by the learned Judicial Magistrate -1st Class, Dhanbad in connection C.P. Case No. 526 of 2019 whereby the learned Judicial Magistrate -1st Class, Dhanbad has found sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 420 /323 of the Indian Penal Code . 3. This case has a chequered history. This is the second journey of the petitioners to this Court in connection with this case. The brief facts of the case is that upon the Complaint Case No. 526 of 2019 filed by the opposite party no.2 –complainant of this Cr.M.P., the learned Judicial Magistrate -1st Class, Dhanbad basing upon the complaint, statement of the complainant on solemn affirmation and statement of the inquiry witnesses, found sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 417 and 323 of the Indian Penal Code vide order dated 29.07.2019, passed in the said C.P. Case No. 526 of 2019. The petitioners did not challenge the said order dated 29.07.2019. The complainant challenged the said order dated 29.07.2019 by filing Criminal Revision No. 265 of 2019 before the learned Sessions Judge, Dhanbad. The learned Sessions Judge, Dhanbad allowed the criminal revision and observed that the trial court should have taken note of the allegation to the effect that by playing the deception, the complainant was persuaded to part with larger sum and further observed that the learned trial court has thus certainly not considered the prima facie materials against the opposite parties of the criminal revision who are the petitioners herein in this criminal miscellaneous petition; wherefrom the records, the essentials of cheating and that of delivery of large sum has been prima facie established and vide its order dated 21.11.2019, passed in Criminal Revision No. 265 of 2019, set aside the said order dated 29.07.2019, passed by the learned Judicial Magistrate -1st Class, Dhanbad and directed the trial court pass a fresh order after hearing the complainant. The petitioners of this criminal miscellaneous petition earlier filed Cr.M.P. No. 4275 of 2019 before this Court inter-alia challenging the order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019 whereby the learned Sessions Judge, Dhanbad set aside the order dated 29.07.2019 but instead of pressing the criminal miscellaneous petition, the same was withdrawn vide order dated 22.01.2020 with the permission of the Court. The order dated 22.01.2020, passed by the Co-ordinate Bench of this Court is as under:- “After some arguments, counsel for the petitioners seeks permission to withdraw this application in view of order passed in Criminal Revision No. 265 of 2019 with a liberty to approach this Court, if any adverse order is passed against them. Permission is accorded. Accordingly, the instant Criminal Miscellaneous Petition stands dismissed as withdrawn with the aforesaid liberty.” Consequent upon that, as the said order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019 attained finality; in compliance of the said order, the learned Judicial Magistrate -1st Class, Dhanbad passed a fresh order dated 19.02.2020 and found sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 420 and 323 of the Indian Penal Code . In this criminal miscellaneous petition, the said order dated 19.02.2020 is sought to be quashed and set aside. 4. The learned counsel for the petitioners relying upon the Judgment of the Hon’ble Supreme Court of India in the case of Naresh Kumar & Another Vs. State of Karnataka & Another , 2024 INSC 196 submits that the Hon’ble Supreme Court of India in that case, relied upon its own Judgment in the case of Paramjeet Batra Vs. State of Uttarakhand , (2013) 11 SCC 673 , wherein it was held that a complaint disclosing civil transactions may also have a criminal texture but 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 that case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court. In such a situation, if a civil remedy is available and is, in fact, adopted, as has happened in that case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court. It is next submitted that in that case, the Hon’ble Supreme Court of India referred to its earlier Judgment in the case of Randheer Singh Vs. State of Uttar Pradesh , (2021) 14 SCC 626 wherein it was observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. It is further submitted that in para-7 of that Judgment, the Hon’ble Supreme Court of India has referred to its earlier Judgment in the case of Sarabjit Kaur Vs. State of Punjab and Another , (2023) 5 SCC 360 which is to the effect that mere breach of contract by one of the parties, would not attract prosecution for criminal offence in every case. It is further submitted that in that case, the Hon’ble Supreme Court of India also relied upon its own Judgment in the case of Vesa Holdings (P) Ltd. Vs. State of Kerela , (2015) 8 SCC 293 wherein it was held that every breach of contract would not give rise to 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. It is next submitted by the learned counsel for the petitioners by drawing attention of this Court to the supplementary affidavit dated 19.06.2023 that the complainant has instituted a civil suit being Original Suit No. 36 of 2020 in the court of learned Civil Judge (Senior Division), Dhanbad for specific performance of the contract, with the prayer of directing the defendant-petitioner to get the sale deed registered in his favour. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed. 5. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for by the petitioners in this criminal miscellaneous petition and submits that the consequence of withdrawal of the Cr.M.P. No. 4275 of 2019, in which the petitioners have challenged the order dated 21.11.2019, passed in Criminal Revision No. 265 of 2019 is that, the said order has attained finality. It is next submitted that the undisputed fact remains that in the said order, the revisional court being the court of learned Sessions Judge directed the Judicial Magistrate -1st Class, Dhanbad to pass a fresh order after taking into consideration that prima facie materials against the petitioners of this criminal miscellaneous petition available in the record indicates that commission of the offence of cheating and that a delivery of large sum has been established prima facie. It is next submitted that as the petitioners never challenged the earlier order dated 29.07.2019, passed by the learned Judicial Magistrate -1st Class in C.P. No. 526 of 2019 and the said order dated 21.11.2019, passed in Criminal Revision No. 265 of 2019 having attained finality consequent upon withdrawal of Cr.M.P. No. 4275 of 2019, there was no option left for the learned Judicial Magistrate -1st Class, Dhanbad to form an opinion that there is sufficient material to proceed against the petitioners for having committed the offences punishable under Section 420 /323 of the Indian Penal Code , as the Judicial Magistrate -1st Class, being lower in hierarchy to that of the Sessions Judge, Dhanbad, there was no way the Judicial Magistrate -1st Class could have taken a view different from what was observed by the learned Sessions Judge, Dhanbad and the learned Judicial Magistrate -1st Class, Dhanbad having just done that, there is no rhyme or reason to interfere with the order dated 19.02.2020, passed by the learned Judicial Magistrate -1st Class, Dhanbad in C.P. Case No. 526 of 2019 in exercise of the power under Section 482 of the Code of Criminal Procedure by this Court. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court is of the considered view that the undisputed fact remains that the petitioners were neither aggrieved nor challenged the order dated 29.07.2019, passed in C.P. Case No. 526 of 2019 by which the learned Judicial Magistrate -1st Class, Dhanbad has found sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 417 and 323 of the Indian Penal Code rather the complainant was aggrieved by the said order and the complainant filed Criminal Revision No. 265 of 2019 but the same was allowed by the learned Sessions Judge, Dhanbad and this Court has no hesitation in holding that the tone and tenor of the order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019, left no option for the learned Judicial Magistrate -1st Class, Dhanbad to form an opinion that there is sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 420 and 323 of the Indian Penal Code . 7. As has rightly been submitted by the learned Addl. P.P. and the learned counsel for the opposite party no.2, the consequence of withdrawal of the Cr.M.P. No. 4275 of 2019 by the petitioners in which the petitioners challenged the order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019, is that the said order of the learned Sessions Judge, Dhanbad has attained finality. So the learned Judicial Magistrate being lower in hierarchy to that of the learned Sessions Judge was left with no option but to carry out the directions of the learned Sessions Judge by passing a fresh order and in terms of the said order of the learned Sessions Judge, Dhanbad; the learned Judicial Magistrate -1st Class, Dhanbad has found sufficient materials to proceed against the petitioners for having committed the offences punishable under Section 420 and 323 of the Indian Penal Code . In this criminal miscellaneous petition, the petitioners have not made any prayer and rightly so, to challenge the order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019, as the same has already attained finality upon the withdrawal of the earlier criminal miscellaneous petition being Cr.M.P. No. 4275 of 2019. 8. Thus, under such facts and circumstances of the case, this Court do not find any illegality having been committed by the learned Judicial Magistrate -1st Class, Dhanbad in passing the order dated 19.02.2020 in C.P. Case No. 526 of 2019, in compliance of the said order dated 21.11.2019, passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 265 of 2019. 9. Hence, this Court do find any justification to interfere with the said order dated 19.02.2020, passed in C.P. Case No. 526 of 2019, in exercise of its power under Section 482 of the Code of Criminal Procedure . 10. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. 11. In view of disposal of this criminal miscellaneous petition, the interim relief granted earlier vide order dated 20.10.2020 is vacated. 12. Registry is directed to intimate the court concerned forthwith.