Prem Nath Choudhary 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 482 of the Code of Criminal Procedure with the prayer to quash/set aside the entire criminal proceeding  including the order  taking cognizance dated 11.06.2019, passed by the learned Judicial Magistrate -1st Class, Koderma in Complaint Case No. 1571 of 2018 involving the offences punishable under Sections 420/323/504 of the Indian Penal Code against the petitioners.

The  learned  counsel  for  the  petitioners  submits  that  charge  has not yet been framed in this case and the case is listed for evidence before charge before the trial court.

The allegation against the petitioners is that, the petitioners went to the house of the complainant and approached him to purchase one Back Loader worth Rs. 23,81,000/-. The complainant paid Rs.7,50,000/-. After that the petitioners promised to deliver the vehicle  within  fifteen  days  therefrom  but  the  petitioners  did  not give the vehicle to the complainant. On 25.11.2018, when the complainant went to the petitioners, the petitioners abused him and drove him out by pushing him. There is further allegation that the petitioners apart from money have obtained twelve pieces of blank cheques signed by the complainant and also obtained the signatures  of  the  complainant  and  his  wife  on  a  blank  paper  but did  not  give  the  vehicle.  The  learned  Magistrate,  on  the  basis  of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses found prima facie case for the offences punishable under Section 420/323/504 of the Indian Penal Code.

It is submitted by the learned counsel for the petitioners relying upon the Judgment of this Court in the case of Ram Binod Choudhary & Ors. Vs. The State of Jharkhand & Anr., reported in 2026:JHHC:221 that therein this Court relied upon the judgment of  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:-

“6. 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  in  order  to  constitute  the  offence  of cheating, the accused must play deception since the beginning of the  transaction  between  the  parties  and if  the intention  to  cheat has developed later on, the same cannot amount to cheating.

It is next submitted by the learned counsel for the petitioners relying upon the Judgment of the Hon’ble Supreme Court of India in the case of Vikram Johar vs. State of Uttar Pradesh & Another reported in (2019) 14 SCC 207, paragraph-24 of which reads as under:-

“24. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that the appellant with two or  three other unknown persons, one of whom was holding a revolver, came to the complainant's  house  and  abused  him  in  filthy  language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a  degree that should provoke a  person to break the public peace or to commit any other offence. The mere  allegation that the  appellant  came  and abused the complainant does not satisfy the ingredients as laid down in para 13 of the judgment of this Court in Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715].”

Wherein the Hon’ble Supreme Court of India has dealt with the essential ingredients to constitute the offence punishable under Section 504 of the Indian Penal Code.

The learned counsel for the petitioner next relies upon the Judgment of  this  Court  in  the case  of  Fullerton  India  Credit  Co. Ltd. & Anr. Vs. The State of Jharkhand & Anr., passed in Cr.M.P.  No.  3230 of 2022,  dated  16.08.2023 whereby  and where under this Court relied upon the Judgment of the Hon’ble Supreme Court of India in the case of  Ramesh Chandra Vaishya Vs. State of Uttar Pradesh & Anr., reported in (2023) SC Online SC 668, wherein  in  the  facts  of  the  case  where  the  nature  of  hurt suffered by the complainant in the process is neither reflected from the first F.I.R. nor in the charge-sheet, the Hon’ble Supreme Court  of  India  in  the  facts  of  that  case  went  on  to hold  that  the offence punishable under Section 323 of the Indian Penal Code is not made out.

It is next submitted by the learned counsel for the petitioners that the allegations against the petitioners are false. It is next submitted  that  the complainant was supposed to purchase a  JCB Machine for which he paid only Rs.1,25,000/- and not Rs.7,50,000/-  as  claimed  by  him.  It  is  next  submitted  that  as  the complainant  did  not  pay  the  remaining amount  for purchase  of the JCB Machine, the petitioners repeatedly requested the complainant to take  back the advance amount, however, with an ill  motive  to  implicate  the  petitioners  in  a false  criminal  case  for the purpose of wreaking vengeance, the complainant never turned  up  to  receive  the  said  Rs.1,25,000/-  which  is  still  lying  in the bank account of the petitioners. It is further submitted that admittedly the complainant relied upon the delivery order dated 31.12.2016  but  the  same  is  a  forged  document  and  the  same  was never issued by the finance company concerned. It is next submitted that the petitioner no.1 has instituted a First Information Report vide Sukhdeonagar P.S. Case No. 501 of 2021 against  the  complainant  and  his  son  for  creating  false  document and committing cheating and forgery as well as committing theft of form of debit vouchers and other valuables. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed.

The learned Addl. P.P. and the learned counsel for the opposite party  no.2  on  the  other  hand  vehemently  opposes  the  prayer  as prayed for by the petitioners in this criminal miscellaneous petition and submits that if the entire allegations made against the petitioners  are  considered  to  be  true  in  their  entirety  then  all  the three offences in respect of which prima facie case has been found by the learned Judicial Magistrate -1st Class, Koderma is in fact being made out against the petitioners. Hence, it is submitted that this criminal miscellaneous petitioner being without any merit be dismissed.

Having  heard  the  submissions  made  at  the  Bar  and  after  going through the materials available in the record, it is pertinent to mention here that as has been reiterated by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another (supra); in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties.

Now coming to the facts of the case, it is the admitted case of the complainant that he has paid Rs.7,50,000/- out of the 23,81,000/-. Even that amount is not accepted by the petitioners as the petitioners have categorically stated that the complainant has deposited only Rs.1,25,000/- but it is the admitted case of the complainant that he has not paid the entire amount of the vehicle in question.

Under such circumstances, this Court is  of the considered view that in the absence of the essential ingredients to constitute the offence  of  cheating  i.e.  playing  deception  by  the  accused  person since the beginning of the transaction between the parties, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence  punishable under Section 420 of the Indian Penal Code is not made out against the petitioners.

So far as the offence punishable under Section 323 of the Indian Penal Code is concerned, as has been held by the Hon’ble Supreme Court of India in the case of  Ramesh Chandra Vaishya Vs.  State  of  Uttar  Pradesh  & Anr.  (supra)  there  is  no  allegation against the petitioners of causing any hurt as defined under Section 319 of the Indian Penal Code by causing any bodily pain, disease or infirmity to the complainant. In the absence of the same, this Court has no hesitation in holding that even if the entire  allegations  made  against  the  petitioners  are  considered  to be true in their entirety, still the offence punishable under Section 323 of the Indian Penal Code is not made out against the petitioners.

So far as the offence punishable under Section 504 of the Indian Penal Code is concerned, there is no allegation against the petitioners of causing any intentional insult to the complainant or anyone else provoking him to cause breach of peace or any other offence. In the absence of the same, the offence punishable under Section 504 of the Indian Penal Code is not made out.

In  view  of  the  discussions  made  above,  as  this  Court  is  of  the considered view that none of the offences in respect of which the learned  Judicial Magistrate -1st Class, Koderma  has found prima facie case is made out against the petitioners, therefore, continuation of this  criminal  proceeding  will  amount  to  abuse of process of law.

Accordingly, the entire criminal proceeding including the order taking cognizance dated 11.06.2019, passed by the learned Judicial Magistrate -1st Class, Koderma in Complaint Case No. 1571 of 2018 involving the offences punishable under Sections 420/323/504  of  the  Indian  Penal  Code,  is  quashed  and  set  aside against the petitioners.

In the result, this criminal miscellaneous petition is allowed.