Jharkhand High Court
Basanteshwari Prasad vs State Of Jharkhand And Anr. on 16 January, 2003
Equivalent citations: 2003CRILJ3809, [2003(1)JCR566(JHR)], 2003 CRI. L. J. 3809, 2003 AIR - JHAR. H. C. R. 1007, (2003) 1 JCR 566 (JHA), (2003) 1 EASTCRIC 641, (2003) 3 RECCRIR 696, (2003) 1 JLJR 473, (2003) 2 CRIMES 163
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This miscellaneous petition has been directed by the petitioner against the order dated 2.2.2002 passed by Shri U.N. Mishra, Judicial Magistrate, Ranchi in G.R. Case No. 2978 of 1998 arising out of Kotwali P.S. Case No. 658 of 1998 under Sections 406 and 420 of the Indian Penal Code whereby and whereunder the prayer of the petitioner to discharge him in this case has been partly rejected and he was directed to appear in person for framing of the charge against him only under Section 420/120B of the Indian Penal Code.
2. A petition of complaint giving rise to complaint case No. 660 of 1998 was filed before the Court of Chief Judicial Magistrate. Ranchi by opposite party No. 2, Chandrakant Gopalka on 8.12.1998 under Sections 406, 420 and 120B of the Indian Penal Code regarding the occurrence which is said to have taken place on 18.8.1998 and continuing since then and the learned C.J.M. was pleased to direct the O.C., Kotwali P.S. to institute a case, investigate and submit F.F. in the case which gave rise to G.R. Case No. 2978 of 1998 under Sections 406 and 420 of the Indian Penal Code read with Section 120B of the Indian Penal Code. The police submitted the charge-sheet in this case under Sections 406, 420 and 120B of the Indian Penal Code against this petitioner along with co-accused Ram Nayak Singh.
3. The case of opposite party No. 2 as averred in the complaint petition in brief is that on the request of the opposite party No. 2 along with co-accused Ram Nayak Singh, the complainant entered into Hire Purchase Agreement with co-accused Ram Nayak Singh for hiring a Matador Maxi Taxi bearing registration No. BIN-9248 and as per the Hire Purchase Agreement (Annexure-4), the date of the agreement is 10.8.1991 and the opposite party No. 2 as per terms of the agreement is the guarantor in respect thereof and according to the terms of the agreement the co-accused aforesaid had to pay Rs. 63,500/- in 18 installments and the first installment was to be paid on 17.9.1991. It is alleged that opposite party No. 2 had handed over the said vehicle to the co-accused in presence of the petitioner under the said Hire Purchase Agreement with full assurance given by this petitioner for making payment of the installments regularly. The co-accused aforesaid had paid Rs. 21,900/- out of Rs. 63,500/- to the opposite party No. 2 and, thereafter, the co-accused and this petitioner did not pay the remaining amount of Rs. 41,600/- besides interest and in view of the Hire Purchase Agreement the petitioner and the co-accused are jointly and severally liable to pay the above amount to opposite party No. 2 and even on demand the said amount was not paid to them. It is also alleged that the co-accused and the petitioner have disposed of the said vehicle dishonestly during the continuance of the Hire Purchase Agreement causing wrongful loss to opposite party No. 2 and wrongful gain to the petitioner and the co-accused and they have also cheated opposite party No. 2.
4. The police has submitted charge-sheet after completing the investigation under Sections 406, 420 and 120B of the Indian Penal Code against the petitioner along with co-accused Ram Nayak Singh and cognizance in this case was taken against the petitioner along with the co-accused under Sections 406, 420 and 120B of the Indian Penal Code. The petitioner along with the co-accused, thereafter, filed a petition under Section 239 of the Code of Criminal Procedure on 24.9.2001 praying therein to discharge them in this case. The learned Magistrate vide order dated 2.2.2002 has been pleased to discharge them for the offence under Section 406 of the Indian Penal Code only but directed them to appear in person for framing of the charge under Section 420 read with 120B of the Indian Penal Code due to the fact that they have duped opposite party No. 2 by not making payment of Rs. 41,600/- as per terms of the Hire Purchase Agreement with dishonest intention.
5. It is pertinent to mention here that co-accused Ram Nayak Singh has not filed any criminal miscellaneous petition for quashing of the order aforesaid. It is also relevant to mention here that inspite of the order dated 19.8.2002 the opposite party No. 2 did not file any counter affidavit in this case and inspite of calls the learned counsel for the opposite party No. 2 did not appear before this Court in the course of hearing.
6. Assailing the impugned order of the learned Court below it has been submitted by the learned counsel for the petitioner that the impugned order of the learned Court below is perverse and against the materials on the record and the initiation of this proceeding against this petitioner is nothing but an abuse of the process of the law as no criminal liability is fastened against this petitioner and utmost it is a case of civil dispute if the Hire Purchase Agreement is genuine and duly executed. It has been submitted that there was total absence of any dishonest intention on the part of the co-accused when he had entered into a Hire Purchase Agreement with opposite party No. 2 and this petitioner stood as a guarantor in the said Hire Purchase Agreement. It has also been submitted that three installments were paid by the co-accused amounting to Rs. 21,900 out of the amount of Rs. 63,500/- and, therefore, it is out and out a civil dispute and no case under Section 420 of the Indian Penal Code is at all made out in this case. It has also been submitted that there is total absence of any ingredient in this case even making a prima facie case under Section 420 of the Indian Penal Code against this petitioner as there is no averment at all in the complaint petition regarding any inducement by this petitioner or by the co-accused duping opposite party No. 2 and there is total absence of any dishonest intention on the part of the petitioner as well as the co-accused when the Hire Purchase Agreement came into existence. It has been contended that the said vehicle met with an accident and badly damaged on 6.2.1992 and as a result of which it was subsequently handed over to opposite party No. 2 in damaged condition and the opposite party No. 2 has granted a receipt per his own signature which is Annexure "5" to this petition. Relying on the case law reported in AIR 1973 SC 326 it has been submitted that to hold a person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making all the promises and such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. Further reliance has also been placed upon the case law reported at 2000 (4) PLJR 566 on behalf of the petitioner.
7. There is no denying the fact that the co-accused entered into the Hire Purchase Agreement with opposite party No. 2 as per Annexure-4 in respect of vehicle bearing registration No. BIN- 9248 and as per terms of the said agreement the co-accused had to pay Rs. 63,500/- in 18 installments, the first installment being payable on 17.9.1991. The petitioner appears to be a guarantor for the payment of the said amount as per terms of the agreement. It further appears the vehicle bearing registration No. BIN-9248 was handed over to the co-accused as per terms of the Hire Purchase Agreement and a sum of Rs. 21,900/- has already been paid by the co-accused to the opposite party No. 2 being the amount of first three installments. It also appears that, thereafter, further amount due as per the Hire Purchase Agreement was not paid by the co-accused to opposite party No. 2 and this petitioner was never called upon by opposite party No. 2 to make payment of the due amount aforesaid in view of the fact that the co-accused and this petitioner was jointly and severally liable to make payment of the due amount to opposite party No. 2. It also appears from Annexure-5 of this petition that the said vehicle had already been returned to opposite party No. 2 on 14.5.1992 when the vehicle aforesaid met with an accident and badly damaged on 6.2.1992 and the opposite party No. 2 granted a receipt (An-nexure-5) regarding taking back the said vehicle. To constitute an offence under Section 420 of the Indian Penal Code there should be a dishonest inducement to the person deceived to deliver any property to any person. The word "dishonestly" implies a deliberate intention to cause wrongful gain or wrongful loss and when this coupled with cheating and delivery of property, offence under Section 420 is prima facie made out. In this case there is specific averment in the petitioner of complaint that when there was a Hire Purchase Agreement between opposite party No. 2 on the one hand and co-accused on the other hand there was total absence of any fraudulent intention on the part of the co-accused as well as this petitioner as guarantor to cheat opposite party No. 2. Had it been a case of cheating there was no reason for the co-accused to make payment of Rs. 21,900/- to opposite party No. 2 in three installments as per terms of the Hire Purchase Agreement. There is also no case nor any material on the record to indicate that at the time when the vehicle in question as per the Hire Purchase Agreement was handed over to the co-accused there was any dishonest intention or any false representation made by the co-accused or by this petitioner. Therefore, no case under Section 420 of the Indian Penal Code is prima facie made out in the facts and circumstances of this case. It is the settled principle of law that to constitute an offence under Section 420 of the Indian Penal Code it has to be shown that the intention of the accused was dishonest at the time of making the promise and such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. Furthermore, the vehicle in question has already been returned to opposite party No. 2 as per Annexure-5 and there is nothing on the record to controvert this fact in the absence of counter affidavit of opposite party No. 2.
8. The facts of this case do not at all show any fraudulent and dishonest intention on the part of the petitioner right at the inception of the transaction when the Hire Purchase Agreement came into existence. The criminal intent is the gist of the offence of cheating and there is nothing on the record to show that the petitioner had fraudulent or dishonest intention to dupe opposite party No. 2 at the time of the execution of the Hire Purchase Agreement for the delivery of the vehicle aforesaid. The criminal intent of this petitioner cannot be presumed at the inception of the agreement from the mere fact of the non-payment of the subsequent installments by the co-accused or by this petitioner as guarantor. Therefore, in the given facts of this case no offence under Section 420 of the Indian Penal Code is prima facie made out against this petitioner. The principle of law settled in the case of Hriday Ranjan Prasad Verma v. State of Bihar, 2000 (3) Supreme 13 : 2000 (2) East Cr C 634 (SC) and S.W. Palanitkar and Ors. v. State of Bihar and Anr., 2002 (1) SCC 241 : 2001 (1) East Cr C 258 (SC) squarely covers the case of the petitioner. Therefore, it is a case of the breach of the terms of agreement for which there is civil remedy and no criminal liability is fastened on the petitioner.
9. To sum up, on plain reading of the FIR it is evident that dispute is of a civil nature which involves the breach of the terms of the Hire Purchase Agreement and it cannot be said that at the inception of the agreement itself there was a dishonest intention on the part of the petitioner to dupe opposite party No. 2. On careful consideration of the materials on the record I hold that the case of complainant is of purely civil nature and no offence under Section 420 of the Indian Penal Code at all is made out. The learned Court has committed a manifest error in rejecting the petition dated 24.9.2001 of the petitioner filed under Section 239 of the Code of Criminal Procedure and thus the impugned order is illegal. Therefore, it is a fit case in which the impugned order dated 2.2.2002 and the proceeding initiated against this petitioner must be quashed for the ends of justice as the continuance of the criminal proceeding will tantamount to the abuse of the process of law.
10. There is merit in the petition and the same is hereby allowed. The impugned order dated 2.2.2002 and the entire criminal proceeding against this petitioner only in G.R. Case No. 2978 of 1998 pending in the Court of Shri U.N. Mishra, Judicial Magistrate, 1st Class, Ranchi is hereby quashed.