Pradeep Mukul Lakra 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 Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the entire criminal proceeding including the order taking cognizance dated 28.11.2024 passed by the learned Judicial Magistrate-1st Class-XIII, Ranchi in connection with Doranda P.S. Case No.153 of 2022 corresponding to G.R. No.2739 of 2024 by which the learned Magistrate has taken cognizance of the offences punishable under Sections 406/420/ 427/506/34 of the Indian Penal Code basing upon the charge-sheet submitted by the police in the case; after investigation of the case.

Learned counsel for the petitioner submits that charge has not yet been framed by the trial court and no witness has been examined by the trial court in the case.

The allegation against the petitioner is that the petitioner purchased a land in respect of which advance was paid by the informant to the vendor of the petitioner and it is further alleged that the petitioner has not mentioned his proper address in the sale-deed executed.

Learned counsel for the petitioner submits that there is no allegation against the petitioner of being entrusted with any money by the informant or anyone else nor is there any allegation of any dishonest misappropriation of any property by the petitioner. Hence, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner.

It is further submitted that there is no allegation against the petitioner of either deceiving or dishonestly inducing any person deceived to part with any property. Hence, the offence punishable under Section 420 of the Indian Penal Code is also not made out against the petitioner.

It is next submitted that the allegation of unearthing the iron pipes which were planted as boundary by the informant and criminal intimidation is specifically against the co-accused Pascal Tirkey, hence, the offence punishable under Section 427 of the Indian Penal Code is also not made out against the petitioner. Hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.

Learned Addl. P.P. appearing for the State on the other hand vehemently opposes the prayer made in the instant Cr.M.P. and submits that the materials in the record are sufficient to constitute each of the offences in respect of which cognizance has been taken by the learned Magistrate consequent upon submission of the charge-sheet. Hence, 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 as has been held by the Hon’ble Supreme Court of India in the case of Mohammed Ibrahim & Others vs. State of Bihar & Another reported in (2009) 8 SCC 751 that in a case where there is no allegation of any impersonation committed by the executant of the sale-deed it is only the purchaser who can take the plea that he has been cheated by the vendor and such a plea is not open to be taken by a third party.

Now, coming to the facts of the case; the undisputed fact remains that the petitioner has no grievance against the co-accused Pascal Tirkey who has executed the sale-deed in favour of the petitioner. So, under such circumstances, certainly it is not open for the informant to claim that he has been cheated by the petitioner.

Now, coming to the facts of the case, the petitioner is the purchaser of the property and he has no grievance against the co-accused Pascal Tirkey. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner.

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, paragraph- 12 of which reads as under:-

“12. In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.”

(Emphasis supplied)

that the delivery made of a part payment towards an agreement to sell between the parties is the amount paid towards consideration and the same cannot be said to have been entrusted with the vendor of a sale-deed as the word “entrusted” has been used in Section 405 of the Cr.P.C.

Now, coming to the facts of the case; there is no allegation of entrustment of any property to the petitioner nor is there any allegation of dishonest misappropriation of any entrusted property. In the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioner are considered to be true still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner.

So far as the offence punishable under Section 427 and 506 of the Indian Penal Code are concerned, the allegations regarding the said offences are specifically against the co-accused Pascal Tirkey. There is absolutely no allegation against the petitioner of committing mischief or criminally intimidating anyone.

Under such circumstances, this Court has no hesitation in holding that even if the entire allegations made against the petitioner are considered to be true in their entirety still none of the offence in respect of which cognizance has been taken by the learned Magistrate, is made out against the petitioner. Hence, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, it is a fit case where the entire criminal proceeding including the order taking cognizance dated 28.11.2024 passed by the learned Judicial Magistrate-1st Class-XIII, Ranchi in connection with Doranda P.S. Case No.153 of 2022 corresponding to G.R. No.2739 of 2024, be quashed and set aside qua the petitioner named above.

Accordingly, the entire criminal proceeding including the order taking cognizance dated 28.11.2024 passed by the learned Judicial Magistrate-1st Class-XIII, Ranchi in connection with Doranda P.S. Case No.153 of 2022 corresponding to G.R. No.2739 of 2024, is quashed and set aside qua the petitioner named above.

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