Tarkeshwar Tiwary 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 the prayer to quash the order dated 02.02.2023 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in connection with Complaint Case No.1573 of 2022 whereby and where under the learned Judicial Magistrate-1st Class, Jamshedpur has found prima facie case for the offences punishable under Sections 406 and 420 of the Indian Penal Code.

Learned counsel for the opposite party No.2 files a counter-affidavit.

Let the same be kept in the record.

The allegation against the petitioner is that the petitioner had taken three (3) shops of the complainant on rent and paid rent for some time but he is not paying rent of the said shop since 2015.

Learned counsel for the petitioner relies upon the order of the Hon'ble Supreme Court of India in the case of Neetu Singh & Others vs. State of U.P. passed in 2022 LiveLaw (SC) 281 and submits that therein the Hon'ble Supreme Court of India has reiterated the settled principle of law that failure to pay rent is not a penal offence under the Indian Penal Code. It is next submitted that the allegation against the petitioner is false. It is further submitted that even if the entire allegations made against the petitioner are considered to be true in their entirety still neither the offence punishable under Section 406 nor the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioner. It is also submitted that the father of the complainant has already sold the entire shop premises to the petitioner and thereafter the petitioner registered himself with the JUSCO and paying taxes to JUSCO. It is further submitted that there is inordinate and unexplained delay of at least seven (7) years in filingthe complaint. It is lastly submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.

Learned Addl. P. P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P. and submit that the petitioner has not yet appeared before the trial court. It is further submitted that it is false to say that the father of the complainant has sold the property to the petitioner. Hence, it is submitted that this Cr.M.P., being withoutany 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 reiterated by 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-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)

that in order to constitute the offence of cheating, the accused must play deception since the very inception and if the intention to cheat has developed later on, the same cannot amount to cheating.

Now, coming to the facts of the case; it is the admitted case of the complainant that the petitioner was his tenant for a considerable period of time. There is no allegation against the petitioner of having played deception since the very inception and keeping in view the settled principle of law as has been reiterated by the Hon'ble Supreme Court of India in the case of Neetu Singh & Others vs. State of U.P. (supra) that failure to pay rent is not a penal offence under the Indian Penal Code, 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 still 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, the essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code are:- (i) there must be an entrustment, (ii) there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; as has been held by the Hon'ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641.

Now, coming to the facts of the case; giving of shop premises to a tenant on rent cannot be said to be an entrustment of any property. There is no allegation against the petitioner of dishonest misappropriationof any entrusted property. 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 still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner.

The dispute between the parties is basically a civil dispute relating to retention of the tenanted property and a cloak of criminal offence has been given to a purely civil dispute for wrecking vengeance. Hence, this Court is of the considered view that continuation of this criminal proceeding against the petitioner will amount to abuse of process of law, therefore, it is a fit case where the order dated 02.02.2023 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in connection with Complaint Case No.1573 of 2022, be quashed and set aside against the petitioner named above.

Accordingly, the order dated 02.02.2023 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in connection with Complaint Case No.1573 of 2022, is quashed and set aside against the petitioner named above.

In the result, this Criminal Miscellaneous Petition is allowed.