AI Structured Summary
Not yet generated for this judgment
Judgment
Anil Kumar Choudhary, J
Heard the parties.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the entire criminal proceeding including the order dated 23.05.2017 passed in connection with Dhanbad P.S. Case No.769 of 2016 corresponding to G.R. Case No.4844 of 2016 by learned Chief Judicial Magistrate, Dhanbad whereby and where under the learned Chief Judicial Magistrate, Dhanbad has taken cognizance for the offences punishable under Sections 420/406/120B of the Indian Penal Code against the petitioners on the basis of the charge sheet submitted by the police after investigation of the case.
The allegation against the petitioners is that the petitioners took friendly loan of Rs.50 lakhs from the informant and his friend Ramendra Kumar Rai, but did not repay the same and the cheque which the petitioners subsequently gave to the informant and his friend was dishonoured because of the account was closed by the time the cheque could be presented in the bank.
Learned senior counsel for the petitioners submit that the case is next fixed to 27.01.2026 before the trial court and charge has not yet been framed in this case.
Learned senior counsel for the petitioners relies upon the judgment of 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.11 and 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)
wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that 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 between the parties.
Learned senior counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Shailesh Kumar Singh alias Shailesh R. Singh vs. State of Uttar Pradesh & Others reported in 2025 SCC OnLine SC 1462 and submits that in that case, the Hon’ble Supreme Court of India relied upon its own judgement in the case of Delhi Race Club (1940) Ltd. & Ors. vs. State of Uttar Pradesh & Anr. reported in (2024) 10 SCC 690, wherein the Hon’ble Supreme Court of India has held that the offence of cheating and criminal breach of trust cannot co-exist for the same occurrence and in para-14 thereof, the Hon’ble Supreme Court of India has held that if the complainant was to recover a particular amount, he may file a civil suit or seek any other appropriate remedy available in law, but he cannot be permitted to take recourse to criminalproceeding.
Learned senior counsel for the petitioners drawing attention of this Court to clause no.5 of the agreement dated 24.12.2012 which is the admitted agreement entered into between the parties; which is also the part of the FIR; submits that therein it has categorically been mentioned that, in case, the petitioners who have taken the friendly loan, did not return the same, then the loaners can approach the competent court in Dhanbad for recovery of the amount along with cost of the legal proceeding as well as the interest on the said amount at the market rate, hence, it is submitted that there is no mens rea of the petitioners to commit any offence and at best, the informant could have filed a civil suit for recovery of the amount, but neither the offence punishable under Section 406 of the Indian Penal Code nor the offence punishable under Section 420 of the Indian Penal Code is made out. It is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.
Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submit that there is entrustment of Rs.50 lakhs and as the same has not been refunded, hence, the offence punishable under Section 406 of the Indian Penal Code is made out. 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 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 the petitioners of playing deception since the beginning of the transaction and in the absence of the same, the offence punishable under Section 420 of the Indian Penal Code is not made out.
So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law 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 accused person dishonestly disposed of the same in some way or dishonestly retained the same as has been reiterated 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)
Now, coming to the facts of the case, there is absolutely no allegation against the petitioners of any dishonest misappropriation of the property or using them for their personal benefit or in violation of any law. Under such circumstances rather as the admitted agreement entered into between the parties provides for the filing of a civil suit in the competent court of Dhanbad, in case of default in payment of the friendly loan taken by the petitioner. Under such circumstances, this Court is of the considered view that even if the 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.
In view of the discussions made above as neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian PenalCode is made out even if the entire allegations made against the petitioners are considered to be true in their entirety, even with the aid of Section 120B of the Indian Penal Code, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 23.05.2017 passed in connection with Dhanbad P.S. Case No.769 of 2016 corresponding to G.R. Case No.4844 of 2016 by learned Chief Judicial Magistrate, Dhanbad, be quashed and set aside.
Accordingly, the entire criminal proceeding including the order dated 23.05.2017 passed in connection with Dhanbad P.S. Case No.769 of 2016 corresponding to G.R. Case No.4844 of 2016 by learned Chief Judicial Magistrate, Dhanbad, is quashed and set asidequa the petitioners only.
In the result, this Cr.M.P., stands allowed.