Jharkhand High Court
Dayashankar Ojha vs The State Of Jharkhand on 15 March, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.1555 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1555 of 2021
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Dayashankar Ojha, aged about 56 years, S/o late Mahamritunjay Ojha, resident of Koyla Vihar, Flat no. 406A, Kanke Road, P.O. and P.S. Ranchi-8, Jharkhand ... Petitioner Versus
1. The State of Jharkhand
2. Robin Singh, son of late Pitamber Singh, resident of village Punsia, P.O. and P.S. Bindapathar, District Jamtara. ... Opposite Parties
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For the Petitioner : Mr. Abhishek Singh, Advocate
Mr. Pratik Sen, Advocate
For the State : Mr. Pankaj Kumar, P.P.
For the O.P. No.2 : Mr. Kaushal Kishor Mishra, Advocate
Mr. Jitendra S. Singh, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Jamtara in connection with P.C.R. Case No.239 of 2019 whereby and where under the learned Chief Judicial Magistrate has directed the Officer-In-Charge of Bindapathar Police Station to institute the F.I.R. in exercise of the power under Section 156 (3) of Cr.P.C. and also to quash and set aside the order dated 03.08.2023 passed by the Judicial Magistrate-1st Class, Jamtara in Bindapathar P.S. Case No.41 of 2019 whereby and where under the learned Magistrate found prima facie case for the offences punishable 1 Cr. M.P. No.1555 of 2021 under Sections 406/420 of the Indian Penal Code and took cognizance of the same inter alia against the petitioner.
3. The brief facts of the case is that the petitioner engaged the complainant in work for construction of a road with the understanding that the complainant will be paid the money of the said work after deducting 5% from the running bill amount and 7.5% of the security money after completion of the work and as per the said arrangement, the complainant/opposite party No.2 did the work and a sum of Rs.80,25,000/- has been paid by the petitioner to the complainant for the work done but thereafter the petitioner suddenly decided not to supervise and manage the work and the complainant was entitled to get Rs.17,52,297/- which was not paid.
4. Learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of the India in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287 paragraph- 31 of which reads as under:-
"31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."2 Cr. M.P. No.1555 of 2021
and submits that the complaint has been filed without compliance of Section 154 (1) and 154 (3) of the Cr.P.C. Hence, the registration of the F.I.R. is itself bad in law.
5. Learned counsel for the petitioner next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Anand Kumar Mohatta & Another vs. State (NCT of Delhi), Department of Home & Another reported in (2019) 11 SCC 706 paragraph-16 of which reads as under:-
"16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
and submits that merely because in the meanwhile charge-sheet has been submitted and cognizance has been taken; that will not dilute the illegality in the registration of the F.I.R. as the abuse of process caused by F.I.R stands aggravated if the F.I.R. has taken the form of a charge-sheet after investigation.
6. Learned counsel for the petitioner further relies upon the judgment of the Hon'ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which read 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 3 Cr. M.P. No.1555 of 2021 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) and submits that in the absence of any allegation that the petitioner had any dishonest intention since the very beginning of the transaction between the parties, neither the offence punishable under Section 420 of the Indian Penal Code is made out nor in the absence of any allegation of dishonest misappropriation of entrusted property against the petitioner, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner.
7. Learned counsel for the further relies upon the judgment of the Hon'ble Supreme Court of India in the case of State of Punjab v. Davinder Pal Singh Bhullar & Others reported in (2011) 14 SCC 770 paragraphs-107 and 109 of which read as under:-
"107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opusmeaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.
109. Similarly in Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3 SCC 422] this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside."
(Emphasis supplied) 4 Cr. M.P. No.1555 of 2021 and submits that it is a settled legal position that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order.
8. Hence, it is submitted that the prayers made by the petitioner in this Criminal Miscellaneous Petition be allowed.
9. Learned P.P. appearing for the State and the learned counsel for the opposite party No.2 oppose the prayers made by the petitioner in this Criminal Miscellaneous Petition and submit that the illegality, if any, in registration of the F.I.R., has been extinguished by the submission of the charge-sheet and cognizance of the offence being taken by the learned magistrate. Hence, at this belated stage, the prayers made by the petitioner in this Criminal Miscellaneous Petition ought not be allowed. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
10. 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 its order dated 04.03.2024 passed in the case of Ramesh Kumar Bung & Others vs. State of Telangana & Another in a Petition for Special Leave to Appeal (Crl.) No.13762/2023 that the directions given by the Hon'ble Supreme Court of India in the case of Mrs. Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors. (supra) are mandatory.
11. After going through the materials available in the record, this Court finds that the complaint has been referred under Section 156 (3) of Cr.P.C. even though there is no compliance of Section 154 (1) and 154 (3) of the Cr.P.C. Hence, no doubt the registration of the F.I.R. is not sustainable in law and the 5 Cr. M.P. No.1555 of 2021 order dated 16.04.2019 by which the complaint was referred to under Section 156 (3) of the Cr.P.C. to the Officer-In-Charge of Police Station by the learned Chief Judicial Magistrate, Jamtara is also not sustainable in law.
12. Now, coming to the facts of the case; it is crystal clear that there was a business transaction between the petitioner and the complainant and the petitioner has paid the part of the money to the complainant. There is absolutely no allegation that the petitioner has intention to deceive the complainant since the beginning. 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 & 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 punishable under Section 420 of the Indian Penal Code it has to be shown that the accused had the intention to deceive since the beginning. If the intention to deceive develops later on, the same will not amount to the offence of cheating punishable under Section 420 of the Indian Penal Code.
13. Now, coming to the facts of the case, there is absolutely no allegation against the petitioner that the petitioner had any intention to deceive the complainant since the beginning. In the absence of the same, this Court has no hesitation in holding that even if the allegations made in the complaint, F.I.R., 6 Cr. M.P. No.1555 of 2021 materials collected during the investigation of the case as well as the charge- sheet are treated to be true in its entirety still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner.
14. So far as the offence punishable under Section 406 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 Binod Kumar & Ors. Vs. State of Bihar & Anr. (supra) that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons. It must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. There is absolutely no allegation against the petitioner of having dishonestly disposing of any property entrusted to him nor is there any allegation that the petitioner dishonestly retained any entrusted property or any property over which he was any dominion.
15. Under such circumstances, this Court has no hesitation in holding that, even if the allegations made in the complaint, F.I.R., materials collected during the investigation of the case as well as the charge-sheet are treated to be true in its entirety still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner.
16. Accordingly, this Court is of the considered view that because of the discussions made above, this is a fit case where the prayer of the petitioner to quash and set aside the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Jamtara in connection with P.C.R. Case No.239 of 2019 and also to quash and set aside the order dated 03.08.2023 passed by the Judicial 7 Cr. M.P. No.1555 of 2021 Magistrate-1st Class, Jamtara in Bindapathar P.S. Case No.41 of 2019, be allowed.
17. Accordingly, the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Jamtara in connection with P.C.R. Case No.239 of 2019 and also the order dated 03.08.2023 passed by the Judicial Magistrate-1st Class, Jamtara in Bindapathar P.S. Case No.41 of 2019, are quashed and set aside against the petitioner.
18. In the result, this Cr.M.P. stands allowed.
19. In view of disposal of the instant Cr.M.P., pending interlocutory application, if any, stands disposed of being infructuous.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 15th of March, 2024 AFR/ Animesh 8