Mrs. Neelima Singh @ Neelima Kumari vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties. No one turns up on behalf of the Opp. Party no. 2 in CrMP No. 3134 of 2023 in spite of repeated calls, though Opp. Party no. 2 in Cr.M.P. no. 3150 of 2023 appeared through a lawyer.

Since  both  these  criminal  miscellaneous  petitions  have  been  filed with the selfsame common prayer and have arisen from the common P.S. case no. being Gonda P.S. case no. 98 of 2023, hence, both these Criminal Miscellaneous Petitions are being disposed of by this common judgment.

These  Criminal  Miscellaneous  Petitions  have  been  filed invoking the  jurisdiction  of  this  Court  under  Section  482  of  CrPC  with  the prayer for quashing and setting aside the entire criminal proceeding in connection with Gonda P.S. case no. 98 of 2023 including the order dated 24.06.2024 passed by learned JMFC, XXI, Ranchi whereby and whereunder, the learned Magistrate, has taken cognizance of the offences punishable under Sections 406, 420, 120B of the IPC.

The brief fact of the case is that all the three petitioners of CrMP No. 3134 of 2023 are the daughters and the sole petitioner of CrMP no. 3150 of 2023 is the wife of Late Jitendra Kumar Singh and the allegation against them is that during his life time, Jitendra Kumar Singh took₹52 lakhs as advance by entering into an agreement with the informant to construct a multi-storied building in the year 2012 but Jitendra Kumar Singh died in the year 2016 and after his death, his family members, who have been arrayed as accused persons, assured the informant that they  will honour the agreement entered into by Late Jitendra Kumar Singh and a fresh agreement was entered into between the informant and  the  sole  petitioner  of  CrMP  No.  3150  of  2023  by  the  said  the sole petitioner further taking Rs. 10 lakhs by deceit and fraudulent means but the petitioners have not made available the said land but got the said land mutated in the name of the sole petitioner of CrMP no. 3150 of 2023. On the basis of the written report submitted by the informant, the police registered Gonda P.S.  case  no.  98  of  2023  and  took  up  the  investigation  of  the  case and after completion of the investigation, the police submitted charge-sheet against the petitioners for having committed the offences punishable under Sections 406, 420, 120B of the IPC and on the basis of the same learned JMFC, XXI, Ranchi has taken cognizance of the offences punishable under Sections 406, 420, 120B of the IPC.

It is  submitted by  the  learned  senior counsel  for the  petitioners that the allegations against the petitioners are false and the petitioners are ladies and the petitioners were not party to the Development Agreement entered into by Late Jitendra Kumar Singh  with  the  informant  on  06.07.2012.  It  is  next  submitted that though the informant entered into a new Development Agreement with the petitioner of CrMP No. 3150 of 2023 on 08.05.2016 to develop a property on the same terms and condition as of the earlier agreement but the opposite party no. 2 - informant failed to complete the project within the stipulated period of 48 months ending on 07.05.2020 as the Opp. Party no. 2- the informant failed to complete the obligation in both the agreements even after 11 years and has not done any development  activity.  It  is  further  submitted that  the  Opp. Party no. 2 is pressurizing the petitioners to enter into a new agreement but when the said offer was denied, he has lodged the FIR on fictitious grounds for the purpose of wreaking vengeance. It is next submitted that in his letter dated 01.06.2022, addressed to the petitioners of Cr.M.P. No. 3134 of 2023, the copy of which has been kept at  Annexure 5, the claim of the informant as made in the  FIR  about  payment  of  Rs.  10  lakhs  or  the  total  amount  of  Rs. 70-71 lakhs  have been paid as  mentioned in the  FIR, did not find place  and  the  said letter only  mentions about  Rs.  52 lakhs  being paid to Late Jitendra Kumar Singh during his lifetime; as the same is only the fact and the claim of the informant of having paid₹10 lakhs  to  the  sole  petitioner  of  CrMP  No.  3150  of  2023,  is  out  and out false. It is next submitted that the copy of the agreement allegedly  entered  into  by the  informant  and the  sole petitioner of CrMP No. 3150 of 2023 also do not disclose payment of₹10 lakhs by the informant to the sole petitioner of CrMP No. 3150 of 2023.

It is next submitted by the learned senior counsel for the petitioners that on being approached by the proprietorship firm of the informant in Arbitration Application no. 30 of 2025, a Co-ordinate Bench of this Court, has appointed an arbitrator  and the matter is pending before the arbitrator. It is next submitted that the  dispute  between the  parties  is  a civil  dispute  and  there  is no allegation of dishonest misappropriation of any property nor there is any allegation against the petitioners of playing deception since beginning of the transaction between the parties, hence, it is submitted that prayer as made in this criminal miscellaneous petition be allowed.

Learned Spl.  PP  and learned  counsel for the  Opp.  Party no. 2  of CrMP No. 3150 of 2023 on the other hand, vehemently oppose the prayer of the petitioners and submit that materials in the record is sufficient to constitute both the offences punishable under Sections 406, 420 read with Section 120B of the IPC against the petitioners, hence, it is submitted that the prayer of the petitioners ought not be allowed at this nascent stage.

Having heard the submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that it is a settled principle of law 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)

Wherein the Hon’ble Supreme Court  of India has 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. If the intention to cheat has developed later on, the same cannot amount to cheating.

Further, in the case of Ankur Gupta v. State of U.P. and Another reported in 2017 SCC OnLine SC 2023, the relevant part of para 7 of which reads as under :-

“7. When a complaint does not make out any case against the accused, it will not be correct to say that the accused must still undergo the  agony  of  criminal  trial.  When  there  is  an  abuse  of process  of  law  and  the  Courts,  the  High  Court should  not  shy away in exercising its jurisdiction. The provisions of Section 482 of the Cr.P.C. are devised to advance justice and not to frustrate it. The allegations made in the first information report or the complaint, if are accepted in their entirety, and are taken at the face value, do not prima facie constitute any offence or make out a case against the accused, or where the allegations made are so absurd and inherently improbable on the basis of which  no  prudent person  can  ever  reach  a  just  conclusion  that there  is  sufficient  room  for  proceeding  against  the  accused,  the jurisdiction under Section 482 of the Cr.P.C. needs to be exercised.  In  the  matter  on  hand,  a  blurred  allegation  of  threat to life by the accused including the appellant is made in the complaint.  However,  the police  after  investigation  did  not  find prima facie any case against any of the accused including the appellant for the said offence. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. As mentioned supra, the records in this matter merely reveal the allegation of cheating and criminal breach of trust on the part of the parents of the appellant. Since the appellant is not a party to the agreement or any transaction between the complainant and other accused, there is no reason as to why he should face criminal trial and that too for the offences under Sections 406, 420 IPC etc. The allegations found in the investigation records, even  if  are  taken  at  the  face  value,  do not constitute  an  offence alleged against the appellant. As the offence alleged is not disclosed, the appellant should be saved from frivolous criminal litigation. The admitted facts and documents relied upon by the complaint, without weighing or sifting of evidence, do not make out any case against the appellant & hence the criminal proceedings  instituted  against  him are  required to  be quashed. In our view, the High Court should not have adopted rigid approach which certainly has led to miscarriage of justice in this case,  particularly  when  the  High  Court  has  concluded  that the appellant  is  not  a  party  to  the  transaction  between  his  parents and the complainant. The power of judicial review is discretionary but this is a case where the High Court should have exercised it.” (Emphasis supplied)

the Hon’ble Supreme Court of India has reiterated the settled principle  of  law  that  if an accused is  not  a party  to an  agreement or the transaction between the complainant and the other accused, there is no reason as to why he should face criminal trial and that too, for the offences punishable under Sections 406/ 420 of IPC.

It is also a settled principle of law as has been held by the Hon’ble Supreme  Court  of  India  in  the  case  of  Dalip  Kaur  and  Others  v. Jagnar Singh and Another, reported in (2009) 14 SCC 696, paragraph 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 reiterated the settled principle of law 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 an offence of cheating and 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.

Now to the facts of the case, the undisputed fact remains that the petitioner of CrMP no. 3134 of 2023 are not the parties to the agreement entered into firstly, between Late Jitendra Kumar Singh and the informant and subsequently, between Meera Singh and the informant. Under such circumstances, this Court is of the considered view that in view of the principle of law settled in the case of  Ankur Gupta v. State of  U.P. and Another (supra), there is no justifiable reason why the petitioners of Cr.M.P. No. 3134 of 2023 will face the criminaltrial.

So far as the petitioner of CrMP no. 3150 of 2023 is concerned, the only allegation against her is that she is not honouring the agreement dated 08.05.2016 entered into between her and the proprietorship firm of the informant and in the said agreement, the undisputed copy of which , has been filed as Annexure 4 of CrMP  No.  3150  of  2023,  there  is  no  reference  of  payment of  any additional  amount  of  Rs.10  lakhs  as  claimed  by  the  informant  in the First Information Report. The said agreement has the Arbitration Clause also as Clause No.‘18’.As per clause 10 (c ), the developer was allowed to a grace period of eight months only in  addition  to  forty  eight  months  stipulated  in  that  agreement  to conclude  the project,  from the  date  of  the  said agreement but  the undisputed  fact  remains  that  the  informant-  developer  could  not complete the said work within the stipulated period of forty eight months.

Under such circumstances, this Court is of the considered view that  the  dispute  between  the  parties  is  purely  civil  dispute  and  a cloak of criminal case has been given to the same by the informant for  the  purpose  of  wrecking  vengeance,  hence,  in  the  considered opinion of this Court continuation of criminal proceeding against the petitioners of both the Criminal Miscellaneous Petitions will amount  to  abuse  of  process  of  law  and  these  are  fit  cases,  where the entire criminal proceeding in connection with Gonda P.S. case no. 98 of 2023 including the order dated 24.06.2024 passed by learned  JMFC, XXI, Ranchi  be quashed and  set  aside  against  the petitioners of both the Criminal Miscellaneous Petitions.

Accordingly, the entire criminal proceeding in connection with Gonda P.S. case no. 98 of 2023 including the order dated 24.06.2024 passed by learned JMFC, XXI, Ranchi is quashed and set aside against the petitioners of both the Criminal Miscellaneous Petitions.

In the result, these Criminal Miscellaneous Petitions are allowed.