Tapan Kumar Chand vs State of Jharkhand and Another

R.R. Prasad, J.—This writ application has been filed for quashing the entire criminal proceeding of complaint case bearing No. C-403 of 2008 (T.R. No. 917 of 2009) including the order dated 10.2.2009 passed by the Judicial Magistrate, 1st class, Hazaribagh whereby and whereunder cognizance of the offences under Sections 406, 420 read with Section 120B of the Indian Penal Code has been taken against the petitioner and others.

The facts loading to this case are that the complainant-respondent No. 2, a permanent employee of Central Coalfield Limited working as Pump Khalasi at Saunda ''D'' Colliery, Police Station Patraru, District-Ramgarh, filed a complaint stating therein that for the benefit of the workers working in the said colliery Karamchari Sakh Sahyog Samity Saunda ''D'' Colliery was established, of which Project Officer used to be the Chairman whereas at the relevant point of time, one Ashok Kumar, official of the Patratu Block was In-charge Secretary of the said Co-operative Society to which the complainant and the witnesses and also other workers were the members and they were being granted loan by the Central Co-operative Bank through the said Co-operative Society. The loan taken by the employees was to be recovered from the monthly salary/wages of the members.

Further case of the complainant is that he took loan of Rs. 45,000/- from, the said Co-operative Bank through the Cooperative Society and in course of time, a sum of Rs. 77,160/- was recovered from the monthly salary of the complainant from the month of January, 1996 to January, 2001. That apart, a sum of Rs. 45,000/- was paid in cash and thereby a sum of Rs. 1,22,160/- was paid, still the amount was deducted from the salary for the months of December, 2007 and January to March, 2008. Not only that he was further asked to pay a sum of Rs. 45,000/- to liquidate the loan amount, though he had already paid a sum of Rs. 1,22,160/- as against the loan amount of Rs 45,000/-.

It has also been stated that similar is the case with other members and therefore, they approached to the accused persons and ventilated their grievances but they did not: do anything in this regard, rather the were adamant to deduct the amount from the salary, though the complainant: and the witnesses had liquidated the loan amount. In the aforesaid background, it has been alleged that the accused persons including the petitioner committed offence of cheating and misappropriation.

Mr. Ananda Sen, learned Counsel appearing for the petitioner submitted that: workers of Saunda ''D'' Colliery had formed a Co-operative Credit Society in the year 1993, object of which was to lend money to its members by taking loan from the Hazaribagh Central Co-operative Bank and the loan amount was to be recovered from the monthly salary/wages of the loanees. The said Co-operative Society was being headed by the Project Officer of the Colliery as Chairman of the Society whereas elected member of the society used to be the Secretary.

It has further been submitted that the Management of Saunda ''D'' colliery was only concerned with the deduction of the amount from the wage/salaries of the concerned members to liquidate the loan amount: and further to transmit the said amount through cheque to the Secretary of the Co-operative Credit Society. In course of time, the Commissioner, North Chotanagpur Division, Hazaribagh forwarded a letter of the Hazaribagh Central Cooperative Bank with the list of defaulters to Project Officer, Saunda ''D'' Colliery with an advise to deduct the loan amount of Rs. 2000/- per month from the wages of the defaulters. On getting the said letter, list of defaulters were published over the notice board calling upon them to pay off the loan but they did not pay any heed to it and only then the management started deducting the amount as advised. Thereupon, some complaints were received by some of the loanees regarding re-payment of the loan amount which was referred to the Branch Manager, Central Co-operative Bank, Bhurkunda. In response to that, it was communicated to the Management of the Colliery that certain amounts are outstanding against the defaulters including the complainant, still the complaint has been lodged, though in the aforesaid circumstances, no offence is made out either u/s 406 or Section 420 of the Indian Penal Code.

It was further submitted that before lodging the complaint, the complainant had filed a writ application before: this Court wherein prayer has been made to direct the respondents not to deduct Rs. 2000/- per month from the wages and under this situation, the entire criminal case is fit to be quashed as the case appears to be civil dispute and as such, the petitioner, the Director (Personnel) of Central Coalfield limited who has nothing to do with the activities of the Co-operative Society in any manner, cannot be fastened with the criminal liability.

It be stated that in spite of ample opportunities being given, no counter affidavit has been filed either on behalf of the State or on behalf of the respondent No. 2.

In this respect, (sic) be stated that on 3.2.2010, last indulgence was given to the respondents for filing counter affidavit with an observation that if the counter affidavit would not be filed by the next date, the matter shall be heard and disposed of on the basis of materials available on record, still no counter affidavit was filed. Hence, the parties were heard.

Having heard learned Counsel appearing for the parties and on perusal of the record, the case of the complainant appears to be that he and other witnesses being members of the Co-operative Credit Society were advanced loan by the Central Co-operative Bank, Bhurkunda Branch through the aforesaid Co-operative Society and the loan was to be recovered from the monthly wages/salaries of the loanees. According to complainant, certain amount was deducted from his monthly wages and certain amount was paid in cash and in that way he had paid a sum of Rs. 1,22,160/- and thereby he liquidated the entire loan amount still further amount is being deducted from the monthly wages and under this premise, a case of cheating and misappropriation was lodged against the accused persons including the petitioner, who happens tote the Director (Personnel) of Central Coalfield Limited, Ranchi, though, according to the petitioner, he is nothing to do with the activities of the Co-operative Society.

On perusal of the complaint, I do find that no role has been attributed to the petitioner towards disbursement of the loan amount or recovery of the loan amount. Simply, he has been made accused in the column of the accused and in the body of the complaint, it has simply been alleged that all the accused persons in conspiracy with each other committed offence of cheating and misappropriation, though no act of conspiracy relating to the petitioner has been alleged and as such, no offence is made out of criminal breach of trust or even of cheating against the petitioner.

Otherwise also allegations which have been made in the complaint do not constitute criminal offence either of cheating or misappropriation so far the petitioner is concerned. The offence of cheating has been defined u/s 415 of the Indian Penal Code which reads as under:

Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind reputation or property, is said to ''cheat''.

From its reading it appears that the following ingredients should necessarily be there for constituting offence of cheating:

(1) there should be fraudulent or dishonest inducement of a person by deceiving him

(2)(a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall remain any property or

(b) the person so deceived should be intentionally induced to do omit to do anything which he would not do or omit if he were not so deceived.

(3) in cases covered by 2(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.

Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating cannot be made out. After deception has been practiced, the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation, it does appear that all the elements constituting an offence of cheating are lacking as it is never the case of the complainant that the accused persons fraudulently or dishonestly induced them to deliver any property. Therefore, no offence is made out u/s 420 of the Indian Penal Code against the petitioner even if the entire allegations are accepted to be true. So far the offence u/s 406 of the Indian Penal Code is concerned, that also does appear to have been made out against the petitioner. Criminal breach of trust has been defined u/s 405 of the Indian Penal Code which reads as under:

Criminal breach of trust:- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation or any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.

On reading of the said provision, the following ingredients should be there for constituting the offence u/s 405 of the Indian Penal Code.

(a) a person should have been entrusted with property or entrusted with dominion over property;

(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so;

(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

On going through the complaint, it never appears to be a case of the complainant that the petitioner ever deducted any amount from the monthly wages of the complainant or others and got it dishonestly misappropriated or converted it to his own use, rather the dispute which has been raised in the complaint essentially appears to be a civil dispute. Thus, regard being had to the definition of the criminal breach of trust as defined u/s 405 of the Indian Penal Code, no offence of criminal breach of trust is made out so far the petitioner is concerned.

Accordingly, the entire criminal proceeding of complaint case bearing No. C-403 of 2008 (T.R. No. 917 of 2009) including the order dated 10.2.2.009 is hereby quashed so far the petitioner is concerned.

In the result, this application is allowed.