Jharkhand High Court
Shima Gupta @ Sima Gupta vs The State Of Jharkhand on 17 January, 2025
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 393 of 2019
Shima Gupta @ Sima Gupta, aged about 35 years, wife of Pramod
Kumar Gupta, residence of Village- Amla Tola, P.O. & P.S.-
Chaibasa, District- West Singhbhum ..... Petitioner
Versus
1. The State of Jharkhand
2. Krishna Kumar Sao @ Krishna Prasad Sao, Son of Raju Sao,
resident of Meritola, P.O. & P.S. Chaibasa, District- West
Singhbhum. ..... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. Jitendra Shankar Singh, Advocate.
For the State : Mr. Arup Kumar Dey, A.P.P.
For the O.P. No.2 : Mr. Anjani Kumar, Advocate.
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th
Order No. 06/Dated: 17 January, 2025
1. Heard learned counsel for the petitioner and learned APP for the State as well as learned counsel for the opposite party no. 2.
2. In the instant application, the petitioner has prayed for quashing the entire criminal proceeding of Sadar P.S. Case No. 41 of 2015 dated 07.05.2015 corresponding to G.R. Case No. 271 of 2015 passed by learned Chief Judicial Magistrate, Chaibasa and further prayed for quashing the order dated 18.07.2017 passed in Sadar, P.S. Case No. 41 of 2015 passed by learned Chief Judicial Magistrate, Chaibasa, whereby and whereunder cognizance for the offence under Sections 406, 420 and 506/34 of the I.P.C. has been taken against the petitioner.
3. Learned counsel for the petitioner submits that present case is parallel action taken by the complainant in another case. First Complaint Case No. 62 of 2015 was instituted for the offence Page | 1 under Section 138 of the N.I. Act and present FIR is also based on Complaint Case No. 52 of 2015, wherein the factual position is same, but the nature of offences as mentioned are under Sections 406, 420 and 506 read with 34 of the I.P.C. It is further submitted that the cheque involved in the first Complaint Case No. 62 of 2015 for Rs.3,35,735/- was amicably settled between the parties and final settlement was arrived on payment of Rs. 1 lakh as full and final settlement of cheque amount.
4. It is further submitted that on the same ground and for the same cause of action, no offence under Sections 406 and 420 of the I.P.C. could be attracted, as such the institution of FIR as well as further proceedings arising out of Complaint Case No. 52 of 2015, which resulted in registration of FIR being Sadar P.S. Case No. 41 of 2015 dated 07.05.2015 for the offence under Sections 406, 420 and 506 read with 34 of the I.P.C. is liable to be quashed.
5. On the other hand, learned counsel appearing on behalf of the O.P. No. 2 has also fairly admitted that settlement has been arrived with the present petitioner and the amount involved in this case has been settled between the parties. Therefore, there is no need for further proceeding in this matter.
6. For the better appreciation of the case, it would be appropriate to discuss the relevant provisions of Indian Penal Code.
Section 405 of the IPC criminal Breach of Trust :-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or con- verts to his own use that property, or dishonestly uses or disposes off that property in violation of 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 dis- charge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."
Page | 2 Section 406 of the IPC -
Punishment for criminal breach of trust - Whoever commits crim- inal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fi- ne, or with both.
7. The Hon'ble supreme court in the case of Deepak Gaba v.
State of U.P., reported in (2023) 3 SCC 423: (2023) 1 SCC (Cri) 714, held as follows:
Section 406 IPC prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405 IPC are satisfied. For Section 406 IPC to get attracted, there must be criminal breach of trust in terms of Section 405 IPC. For Section 405 IPC to be attracted, the following have to be established:
(a) the accused was entrusted with property, or entrusted with dominion over property;
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law 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.
Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.
Section 415 IPC defines "cheating" which reads as under:
"415. 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 person 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 were 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"."
Page | 3 The essential ingredients of the offence of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 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.
8. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
Section 420 IPC defines "cheating and dishonestly inducing delivery of property" which reads as under:
"420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 420 IPC is aggravated form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representation he made was false representation with dishonest intention in order to deceive the person to whom it was made.
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(iii) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
9. As observed and held by Hon'ble Apex Court in the case of R.K. Vijayasarathy Vs. Sudha Seetharam reported in (2019) 16 SCC 739, the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and
(ii) the person cheated must be dishonestly induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
10. On perusal of the entire complaint petition, it appears that ingredients of offence under Sections 420 and 406 of the I.P.C. are lacking in this case. In the given set of facts, as pleaded, there is no dishonest inducement for imparting with the property, rather the matter was with respect to money transaction and issuance of cheque for satisfaction of the liability, for which separate proceeding has already been filed under Section 138 of N.I. Act by the O.P. No. 2.
11. I do not find any ingredients for the offence 405 and 420 of the I.P.C. against the petitioner. Accordingly, continuance of proceeding of this FIR amounts to abuse of process of the Court. Therefore, the FIR and further proceedings of the Sadar P.S. Case No. 41 of 2015 is hereby quashed and set aside. This criminal miscellaneous petition is allowed.
13. Let a copy of this order be sent to concerned trial court for information and needful.
[[[[[ (Pradeep Kumar Srivastava, J.) Simran-Sunil/ Page | 5