Mohan Kishore Mishra vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with the prayer to quash and set aside the order dated 03.04.2024 passed by learned S.D.J.M., Godda in Complaint Case No.434 of 2023 whereby and where under the learned S.D.J.M., Godda has found prima facie case for the offences punishable under Sections 406 of the Indian Penal Code against the petitioner as well as the order dated 27.09.2024/22.11.2024 passed by the learned J.M.-1st Class, Godda whereby and whereunder the non-bailable warrant of arrest has been issued against the petitioner.

The brief fact of the case is that the petitioner took money from the complainant and issued two separate cheques of Rs.85,000/- and Rs.2,75,000/- in discharge of his debt, but on being presented in the bank by the complainant both the cheques were dishonored. The complainant demanded the cheque amount and issued notice through the Advocate but still the petitioner did not pay the said amount, hence, the complainant filed this complaint case.

On the basis of complaint, statement on solemn affirmation of the complainant and the statement of enquiry witnesses, the learned Magistrate found prima facie case for the offences punishable under Sections 406 of the Indian Penal Code against the petitioner.

Learned counsel for the petitioner submits that the allegation against the petitioner is false even though the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out. It is next submitted that the complainant has filed this false case for wrecking vengeance; by taking advantage of the old age of the petitioner, who is 78 years of age. It is next submitted that the case is at the stage of appearance, hence, it is submitted that the prayer as prayed for in this Cr.M.P., be allowed.

Learned Addl.P.P. appearing for the State and the learned Amicus Curiae on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and learned Amicus Curiae submits that the ingredients of the offence punishable under Section 406 of the Indian Penal Code is made out or not is the subject matter of trial. 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 it is a settled principle of law that mere inability of the accused to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction; as it is mens rea which is the crux of the offence, as has been observed by the Hon’ble Supreme Court of India in the case of Satish Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148, paragraph nos.13 of which reads as under:-

Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.” (Emphasis supplied)

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the same provides punishment inter alia for dishonest misappropriation by using the same to one’s own use or using it in violation of legal direction or any legal contract. As per the Black’s Law Dictionary the word ‘entrust’ means to give a person the responsibility for something usually after establishing a confidential relationship, so in a friendly loan there is no ingredient of entrustment and there cannot be any intention of misappropriation or misuse of the money entrusted to the accused more so when admittedly, the accused issued cheques in lieu of the friendly loan taken for repayment of the same albeit the cheques were subsequently dishonored; the same rules of the case of entrustment or its dishonest misappropriation.

Under such circumstances, this Court has no hesitation in holding that in the absence of any material to suggest that the petitioner has committed any dishonest misappropriation of any entrusted property, the offence punishable under Section 406 of the Indian Penal Code is not made out. Therefore, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the order dated 03.04.2024 passed by learned S.D.J.M., Godda in Complaint Case No.434 of 2023, be quashed and set aside.

Accordingly, the order dated 03.04.2024 passed by learned S.D.J.M., Godda in Complaint Case No.434 of 2023 and other consequential reliefs, is quashed and set aside qua the petitioner only.

In the result, this Cr.M.P., stands allowed.

Before parting this Court records, the appreciation for the assistance rendered by the learned Amicus Curiae who has been appointed by the predecessor Judge in the roster consequent upon the opposite party no.2 not appearing despite valid service of notice.

The Secretary, High Court Legal Services Authority is directed to pay Rs.7,000/- (Seven Thousand) to Mr. Alok Kumar Dubey, Advocate on production of the web copy of this judgment.