Sanjeev Kumar 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 B.N.S.S., 2023 with the  prayer  to  quash  the  entire  criminal  proceeding  including  the order taking cognizance dated 05.09.2023 passed by the learned Judicial Magistrate 1st Class-XXII, Ranchi in connection with Complaint Case No. 1827 of 2019, whereby and where under, the learned Judicial Magistrate 1st Class-XXII, Ranchi has found prima facie case for the offence punishable under Sections 323, 341, 417/34 of the Indian Penal Code and passed summoning order.

The allegation against the petitioners is that the petitioners inducted the complainant as tenant in their shop by representing the complainant that the said shop is a  commercial property. The complainant continued in possession of the said property by running  his business but  ultimately  the petitioners did  not give any documents to show that the property concerned is a commercial property and as the complainant stopped payment of the rent of the said shop, the petitioner no.2 along with her brother and others threatened the complainant of dire consequences  unless  he  hands  over  the  vacant  possession  of  the shop in question.

It is submitted by the learned counsel for the petitioners that there is no allegation against the petitioners of causing hurt to the complainant or wrongfully restraining him hence, the offence punishable under Sections 323 or 341 of the Indian Penal Code is not made out against the petitioners even if the entire allegations made against the petitioners are considered to be true in their entirety.

Relying upon the judgment of this Court in the case of Maya Rani vs. The State of Jharkhand & Anr. reported in 2025:JHHC:19884, it is submitted by the learned  counsel  for the petitioners that in  that case, 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 & Anr. reported in (2005) 10 SCC 336, paragraph no. 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 unless the accused person plays deception since the very inception and if the intention to cheat has developed later on, the same cannot amount to cheating.

Learned counsel for the petitioners next relies upon the judgment of this Court in the case of Yogesh Beriwal vs. The State of Jharkhand & Anr. in Cr.M.P. No. 4402 of 2022 dated 14.08.2023  wherein,  this  Court  also  relied  upon  the  judgment  of the Hon’ble Supreme Court of India in the case of  Uma Shanker Gopalika vs. State of Bihar & Anr. (supra). It is next submitted by the learned counsel for the petitioners that there is no allegation of playing deception since the beginning of the transaction between the  parties  rather  it  is  the  admitted  case  of  the  complainant  that the complainant occupied the shop in question for a  considerable period  of  time.  It  is  further  submitted  by  the  learned  counsel  for the petitioners that under such circumstances no offence of cheating is made out against the petitioners. Hence, it is submitted that the prayer as made 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 and submits that the allegations made against the petitioners are sufficient to constitute each of the offences in respect of which prima facie case has been found by the learned Judicial Magistrate 1st Class-XXII, Ranchi. Hence, it is submitted that this criminal miscellaneous petition being withoutany merit be dismissed.

Having  heard  the  submissions  made  at  the  Bar  and  after  going through the materials in the record, it is pertinent to mention here that the allegation of causing hurt by slapping and the allegation of wrongful restraint is against the co-accused person but there is no  allegation  against  the  petitioners  of  either  causing  hurt  to  the complainant or anyone else or wrongfully restraining the complainant or anyone else. Under such circumstances, this Court is of the considered view 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 or 341 of the Indian Penal Code is not made out.

So far as the offence punishable under Section 417 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  Uma Shanker Gopalika vs. State of Bihar & Anr. (supra) that 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, there is absolutely no allegation against the petitioners of playing deception since the beginning of the transaction between the parties rather it is the admitted  case  of  the  complainant  that  the  complainant  has  been paying rent to the petitioners for a considerable period of time.

Under such circumstances, this Court is  of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 417 of the Indian Penal Code is not made out even with the aid of Section 34 of the Indian Penal Code.

In view of the discussions made above, since none of the offence in respect of which prima facie case has been found by the learned Judicial Magistrate 1st Class-XXII, Ranchi is made out against the petitioners therefore, continuation of the 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 taking cognizance dated 05.09.2023 passed by the learned Judicial Magistrate 1st Class-XXII, Ranchi in connection with Complaint Case No. 1827 of 2019 be quashed and set aside qua the petitioners only.

Accordingly, the entire criminal proceeding including the order taking cognizance dated 05.09.2023 passed by the learned Judicial Magistrate 1st Class-XXII, Ranchi in connection with Complaint Case No. 1827 of 2019 is quashed and set aside qua the petitioners only.

In the result, this criminal miscellaneous petition is allowed.