Shri Prakash Agrawal 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, 1973 with a prayer to quash the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Deoghar in connection with Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017 as well as the entire criminal proceedings of that case, the F.I.R. of which has been registered for the offences punishable under Sections 406/420 of the Indian Penal Code.

Learned counsel for the petitioner submits that the investigation of the case is going on but charge-sheet has not yet been submitted.

The allegation against the petitioner is that the petitioner presented the cheque dated 18.03.2017 for Rs.30,00,000/- given by the informant to him as a security, for encashment of the cheque amount even though the informant prior to handing over the cheque as security, paid Rs.30,61,000/- by way of cash and demand drafts. The demand draft amount being Rs.20,91,000/- and rest amount by way of cheque. Subsequently, the cheque presented by the petitioner was dishonoured.

Learned counsel for the petitioner submits that the allegation against the petitioner is false. Admittedly, the informant handed over the cheque for Rs.30,00,000/- on 18.03.2017. Since it is the admitted case of the informant that he paid the entire amount of Rs.30,61,000/- to the petitioner prior to 18.03.2017 there is no plausible reason for explaining the occasion for the informant to again hand over a cheque on 18.03.2017. It is next submitted that the undisputed fact remains that after the dishonour of the cheque, the petitioner issued notice demanding the cheque amount to the informant on 05.07.2017 but subsequent to that on 14.07.2017, this F.I.R. has been instituted with ulterior motive to set up a defence in the case instituted by the petitioner against the informant/opposite party No.2 involving the offence punishable under Section 138 of N.I. Act. It is next submitted that in the absence of any allegation that the petitioner had any dishonest intention since the beginning of the transaction between the parties, the offence punishable under Section 420 of the Indian Penal Code is not made out and in the absence of any allegation of any dishonest misappropriation of any entrusted property, the offence punishable under Section 406 of the Indian Penal Code is not made out either. It is next submitted that since neither of the offences in respect of which F.I.R. has been registered  is  made  out,  even  if  the allegations  against the  petitioner  as mentioned in the F.I.R. are considered to be true in their entirety, hence, it is submitted that the prayer of the petitioner, as prayed for in the instant Cr.M.P., be allowed.

Learned Spl.P.P. appearing for the State opposes the prayer of the petitioner.

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 Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336, paragraph No.6 of which reads as under :-

Xxxxx 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)

that in order to constitute the offence of cheating, the accused must have played deception at the very inception of the transaction between the parties.

It is also a settled principle of law as has been held by the Hon’ble

Supreme Court of India in the case of Binod Kumar & Ors. 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)

that in order to constitute the offence punishable under Section 406 of the Indian Penal Code, it must be shown that the accused person dishonestly disposed of the entrusted property in some way or dishonestly retained the same.

Now, coming to the facts of the case, there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties. In the absence of that, 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 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, there is absolutely no allegation against the petitioner of any dishonest misappropriation of any entrusted property. In the absence of that, this Court has no hesitation in holding that the offence punishable under 406 of the Indian Penal Code is not made out even if the entire allegations made against the petitioner are considered to be true in their entirety.

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 Penal Code is made out against the petitioner, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Deoghar in Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017 as well as the entire criminal proceedings of Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017, be quashed and set aside.

Accordingly, the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Deoghar in Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017 as well as the entire criminal proceedings of Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017, is quashed and set aside against the petitioner.

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