Jitendra Pandey vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

Though, notice has validly been served upon the opposite party no.2 to 6, yet no one turns up on behalf of the opposite party no.2 to 6 in spite of repeated calls.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer to quash and set aside the order dated 19.06.2024 passed by the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur in Criminal Revision No.157 of 2023 whereby and whereunder the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur dismissed the said criminal revision filed by the petitioner against the order dated 02.05.2023 passed by learned Judicial Magistrate-1st Class, Jamshedpur in Complaint Case No.7242 of 2022 whereby and where under the learned Judicial Magistrate-1st Class, Jamshedpur dismissed the protest-cum- complaint petition filed by the complainant who is petitioner herein; under Section 203 of Cr.P.C.

The brief facts of the case is that the petitioner/complainant filed Complaint Case No.2351 of 2021 in the Court of learned Chief Judicial Magistrate, Jamshedpur which upon being referred to police under Section 156(3) Cr.P.C.; police registered Govindpur P.S. Case No.03 of 2022 and took up investigation of the case. After completion of the investigation, police found lack of evidence against the accused persons of the case, who are private opposite parties of this Cr.M.P. and submitted Final Form without sending them for trial; after which the petitioner filed Protest-cum-Complaint Case No.7242 of 2022.

The allegations made by the petitioner-complainant is that the accused person of the case namely Umesh Prasad Barnwal has executed a sale deed in favor of Satish Kumar Singh in respect of the land belonging to the complainant/petitioner, after changing the boundary of the land, though, the said Umesh Prasad Barnwal earlier sold the land to the father of the complainant/petitioner. The learned Judicial Magistrate-1st Class, Jamshedpur considered the settled principle of law that when a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to alleged that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration, but in this case, the complainant is not cheated by the seller rather the purchaser has been made co-accused. There was no allegation that any of the accused persons ever tried to deceive the complainant nor is there any allegation against them of committing any fraudulent or dishonest inducement to the complainant to deliver any property or to consent to the retention thereof or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived and the third, fourth and fifth accused persons are the witnesses of the sale deed. The learned Judicial Magistrate-1st Class, Jamshedpur also considered that the dispute between the parties is a land dispute and since the executor of the sale deed claims to be the owner of the land, it cannot be said that it was a false document and by thus considering, the learned Judicial Magistrate-1st Class went on to hold that no prima facie case is made out to proceed against the petitioner and dismissed the complaint.

Being aggrieved by the said order, the petitioner filed Criminal Revision No.157 of 2023 in the Court of learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur and the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur concurred with the learned Judicial Magistrate-1st Class, Jamshedpur that there is no material in the record to show that the accused persons of the case has fraudulent intention at the very inception of dealing with the father of the complainant and the dispute between the parties is primarily of civil nature and dismissed the said criminal revision.

Learned counsel for the petitioner submit that police has not conducted the investigation properly and that the dismissal order was signed on 02.01.2023, though, it was passed on 02.05.2023. It is next submitted that the witnesses have stated that builder who is the opposite party no.2 has prepared a false document. It is next submitted that the offences punishable under Section 406, 467, 506, 120B of the Indian Penal Code is made out against the accused persons of the case.

Learned counsel for the petitioner next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Lalmuni Devi vs. State of Bihar and Others reported in (2001) 2 SCC 17 and submits that therein the Hon'ble Supreme Court of India has reiterated the settled principle of law that there could be no dispute to the proposition that if the complaint does not make out an offence, it can be quashed and also it is a settled principle of law that the facts may give rise to a civil claim and also amount to an offence, therefore, merely because a civil claim is maintainable, that does not mean that the criminal complaint cannot be maintained.

Learned counsel for the petitioner further relies upon the judgment of the Hon'ble Supreme Court of India in the case of Trisuns Chemical Industry vs. Rajesh Agarwal & Others reported in (1999) 8 SCC 686 and submits that therein the Hon'ble Supreme Court of India in the facts of that case has observed that even though, there is an arbitration clause in the agreement, but arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence, hence, merely the existence of an arbitration clause is not a good reason for the High Court to axe down the complaint at the threshold itself, hence, it is submitted that the prayer as prayed for, in this Cr.M.P., be allowed.

Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that it is apparent that because of an accidental slip of the pen of learned Judicial Magistrate-1st Class, Jamshedpur while mentioning the date under his signature, instead of mentioning 02.05.2023 has erroneously put the date as 02.01.2023, but the said ground was never taken by the petitioner before the Revisional Court and having not done so, it is not open for the petitioner to raise the said ground for the first time before this Court in this Cr.M.P.. It is then submitted that otherwise, also the same being an accidental slip of the pen; the same is not of much consequence, when it is not even the case of the petitioner that the order was passed on 02.01.2023 nor the entire order sheet has been filed by the petitioner. It is next submitted that it is a settled principle of law that in order to constitute the offence of cheating, the accused person must have played deception since the beginning of the transaction between the parties. It is lastly submitted that therefore, this criminal miscellaneous petition being without any merit be dismissed.

It is then submitted by the Learned Special Public Prosecutor that coming to the facts of the case, the opposite party no.2 first sold the property to the father of the complainant in the year 2007 and there is no allegation against the opposite party no.2 that in the year 2007 at the time of executing the sale deed in favour of the father of the complainant/petitioner, the accused person of the case played any deception and in the absence of the same, the offence punishable under Section 420 of the Indian Penal Code is not made out.

Learned Spl.P.P. appearing for the State next submits that there is no allegation of entrustment of money to any of the accused persons nor there is any allegation of dishonest misappropriation etc., so in the absence of the same, the offence punishable under Section 406 of the Indian PenalCode is also not made out.

Learned Spl.P.P. appearing for the State further submits that there is no allegation against the petitioner of creating any false document. It is next submitted that execution of a sale deed by claiming ownership of the land sold, without any impersonation, will not amount to creation of false document as has been held by the Hon'ble Supreme Court of India in the case of Mohammed Ibrahim & Others. Vs. State of Bihar reported in (2009) 8 SCC 751, hence, it is submitted that both the learned Judicial Magistrate-1st Class, Jamshedpur and the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur have rightly dismissed the complaint and the criminal revision respectively. Therefore, it is submitted that this Cr.M.P. being without any merit, be dismissed.

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 there is no dispute regarding the settled principle of law that there may be facts which give rise to a civil claim and also amount to an offence, but here it is a case where the complaint does not make out an offence and that is the reason for which the learned Judicial Magistrate-1st Class, Jamshedpur has quashed the complaint in exercise of its power under Section 203 of the Cr.P.C. The complaint says that offence involved are punishable under Section 406, 420, 467 of the Indian PenalCode.

It is a 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 cannot amount to cheating as has been held by the 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:-

"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)

Now, coming to the facts of the case, there is absolutely no allegation against the opposite party no.2 that while he sold the land to the father of the complainant in the year 2007, he has any intention to play any deception. In view of the admitted case of the complainant, this Court has no hesitation in holding that even if the allegations made in the complaint are considered to be true in their entirety still the offence punishable under Section 420 of Indian PenalCode is not made out.

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is pertinent to mention here the essential ingredients to constitute the offence punishable under Section 406 are as follows:-

(i)There must be an entrustment; and

(ii) there must be misappropriation or conversion to one's own use or use in violation of a legal direction or of legal contract.

as has been held by the Hon'ble Supreme Court of India in the case of Ram Narayan Popli vs. C.B.I. reported in (2003) 3 SCC 641.

Now, coming to the facts of the case, there is absolutely no allegation against the petitioner of any entrustment of any property nor there is any dishonest misappropriation of the property. Under such circumstances, this Court is of the considered view that even if the allegations made in the complaint are considered to be true in their entirety still the offence punishable under Section 406 of Indian Penal Code is not made out.

So far as the offence punishable under Section 467 of the Indian Penal Code is concerned, the Hon'ble Supreme Court of India in the case of Mohammed Ibrahim & Others. Vs. State of Bihar (supra) has categorically held that if a person executes a sale deed claiming to be the owner of the land without any impersonation, the same will not amount to creation of a false document. In view of this settled legal principle of law, the statement of some layman witnesses to the contrary will be of no consequence.

Now coming to the facts of the case, there is no allegation of any impersonation against the opposite party no.2.

Under such circumstances, this Court is of the considered view that there is no illegality committed by the learned Judicial Magistrate-1st Class, Jamshedpur or for that matter, the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur in holding that the offence punishable under Section 467 of the Indian Penal Code is not made out.

So far as the contention of the petitioner that the learned Judicial Magistrate-1st Class, Jamshedpur while mentioning the date under his signature has mentioned the date as 02.01.2023 instead of mentioning the same as 02.05.2023 is concerned, it is apparent that the same has been done by an accidental slip of the pen. Therefore, the same cannot be a ground to vitiate the entire order which is otherwise valid. More so, when such a ground was never taken by the petitioner before the Revisional Court.

Because of the discussions made above, this Court do not find any justifiable reason to interfere with the impugned order passed by the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur in exercise of its power under Section 528 of the BNSS, 2023.

Accordingly, this Cr.M.P., being without any merit, is dismissed.