Jharkhand High Court
Uttam Maity vs The State Of Jharkhand on 31 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr.M.P. No. 1941 of 2018
----
Uttam Maity .... Petitioner
-- Versus --
1.The State of Jharkhand
2.Rakesh Mahato .... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Biren Poddar, Sr. Advocate
Mr. Piyush Poddar, Advocate
Mr. Janak Mishra, Advocate
Mr. Manav Poddar, Advocate
For the State :- Mr. Pankaj Kumar Mishra, Advocate
For the O.P.No.2 :- Mr. Dilip Kumar Karmakar, Advocate
----
13/31.01.2024 Heard Mr. Biren Poddar, the learned Senior counsel appearing
on behalf of the petitioner, Mr. Pankaj Kumar Mishra, the learned counsel appearing on behalf of the respondent State as well as Mr. Dilip Kumar Karmakar, the learned counsel appearing on behalf of the O.P.No.2.
2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 22.05.2018 in connection with Complaint Case No.322 of 2017, pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur.
3. The complaint case has been initiated on the basis of the complaint filed by the complainant namely Rakesh Mahato before the Learned Chief Judicial Magistrate, Jamshedpur alleging that partitioner had cheated his father by inducing him to enter into an agreement for development of the land by constructing multi-storied flat wherein 50% of the said flats were to be handed over to the father of the complainant besides a sum of Rs.5,00,000/- was to be paid and a Scorpio vehicle was also to be given by the petitioner to the father of the complainant besides Rs.15,87,500/- and the vehicle was also illegally removed by the petitioner. 2 The complainant further alleged that a criminal case was also filed againt the complainant in respect of the vehicle.
4. Mr. Biren Poddar, the learned Senior counsel appearing on behalf of the petitioner submits that development agreement was made on 17.05.2010 between Balram Mahato and this petitioner with regard to development of the land in Ward No.1, JNAC Town, Jamshedpur, District Singhbhum (East) in old khata no.34, old plot no.376, corresponding to new survey plot no.806 and 807 (portion) of New khata no.409. Mr. Poddar, the learned senior counsel further submits that by way of registered sale deed dated 22.05.2010 the father of the complainant namely Balram Mahato has sold the said land in favour of the petitioner on payment of considerable amount of Rs.15,87,500/-. He submits that after execution of the aforesaid sale deed in favour of the petitioner, family members of the complainant lodged Title Suit No.162 of 2010 through Anjana Mahtain sister of the complainant and daughter of Balram Mahato which is admitted in paragraph no.8 of the counter affidavit filed by the O.P.No.2. He further submits that one Title (Partition) Suit No.140 of 2013 has been filed by another family member of the complainant namely Amal Kishore Mahto for partition of his portion inter alia plot no.806 and 807. It is admitted in paragraph nos.8, 11 and 13 of the counter-affidavit filed by the O.P.No.2. He submits that in Title Suit No.162 of 2010, a petition under Order XXXIX Rule 1 and 2 was filed which was dismissed on 03.07.2014. Mr. Poddar, the learned senior counsel for the petitioner submits that M.A. No.137 of 2016 was filed before this Court which was dismissed on the ground of limitation by order dated 09.12.2022. He further submits that before dismissal of the M.A. case, a complaint case being Complaint Case No.2971 of 2016 was filed by Kanchan Mahto, sister of the complainant on 21.11.2016 with regard to said development agreement dated 17.05.2010. In the said case, the allegation was made of non-compliance of the terms and conditions of the development 3 agreement. The said complaint case was converted as Sonari P.S.Case No.8 of 2017 and the police submitted the final form saying that case is of civil in nature. The protest petition was filed against that cognizance has been taken and that is pending. He further submits that present complaint case in spite of all these cases, have been filed against the petitioner on 06.02.2017. He submits that the learned court has not taken cognizance and dismissed the said complaint on 13.07.2017. He further submits the Criminal Revision No.251 of 2017 was filed by the O.P.No.2 which was allowed by order dated 07.03.2018 setting aside the dismissal order of the complainant and was remitted by the learned revisional court to pass a fresh order after further enquiry. He submits that after remand order, the learned court by order dated 22.05.2018 has been pleased to take cognizance without further enquiry into the matter. He submits that in that background the entire case is maliciously lodged against the petitioner for a wrong, if any, that is civil in nature. He submits that there are several authorities on the point that this the case is of civil in nature and for that criminal colour has been given. He further submits that during pendency of this petition, the learned court was proceeded and in view of that, the petitioner has filed discharge petition before the learned court which was dismissed and the same is challenged in another Cr.M.P which is pending before this Court. Further he submits even now the charge is framed by the learned court and one witness has been partly cross examined and chief was made, if further development is there, if the case is not made out, the High Court is competent to pass order under section 482 Cr.P.C. He submits that even further development is there, this Court is competent to pass the order.
5. The said argument is resisted by Mr. Dilip Kumar Karmakar, the learned counsel appearing on behalf of the O.P.No.2 on the ground that this petition itself is not maintainable as the petitioner has already filed the discharged petition which was rejected which is the subject matter of 4 another Cr.M.P. He further submits that the learned court has rightly taken cognizance after looking into the enquiry witnesses as such this Court may not exercise its power under section 482 Cr.P.C. He further submits that even civil proceedings are pending that is not a ground of quashing of the entire criminal proceeding if the criminality is made out.
6. The learned counsel for the respondent State submits that on complaint petition, the learned court has taken cognizance.
7. As per the materials on record and what has been recorded in the argument of the learned counsels for the petitioner as well as the O.P.No.2, it appears that this case is having a chequered history. It is an admitted fact that father of the complainant namely Balram Mahato has entered in the development agreement with the petitioner on 17.05.2010 with regard to development of plot no.806/807. Thereafter, on 22.05.2010 the said Balram Mahato sold the land on Rs.15,87,500/- to the petitioner. What has been recorded in the argument of the learned counsel for the petitioner with regard to admission of Title (Partition) Suit in the counter affidavit further suggest that it has not been denied that Title Suit No.162 of 2010 is instituted by Anjana Mahatoain which is pending. Title Suit No.140 of 2013 was instituted by Amal Kishore Mahato who is another family member of the complainant. In Title Suit No.162 of 2010, Order -XXXIX Rule 1 and 2 a petition has been filed which was dismissed by order dated 03.07.2014. M.A. No.137 of 2016 was dismissed by the High Court on 09.12.2022 and one complaint case being Complaint Case No.2971 of 2016 was filed on 21.11.2016 by Kanchan Mahatain, sister of the complainant which was converted as F.I.R being Sonari P.S.Case No.8 of 2017 in which police submitted the final form saying it civil in nature and pursuant to that, protest petition was filed by the O.P.No.2 and the learned court has taken cognizance in that case on the said protest petition which is pending and the present case is filed on 06.02.2017 which is arising out of a dispute pertaining to 5 development agreement dated 17.05.2010. The same was dismissed by order dated 19.07.2017 by learned trial court, however, the learned revisional court has been pleased to set aside the said order and remanded the matter to the learned court and the learned court has taken further cognizance by order dated 22.05.2018. Thus, it is crystal clear that there are dispute with regard to said transfer of land by the father of the complainant and one other family member instituted different case either in civil jurisdiction or criminal jurisdiction. In the complaint case itself in paragraph no.1 it has been disclosed that for the same offence in connection with aforesaid facts, another proceeding has been instituted by Kanchan Mahatoain being Complaint Case No.2971 of 2016. Thus, it is clear that the allegation is in nature of civil dispute and filed the complaint case in which the learned court has taken cognizance which is pending. For same cause of action two cases cannot be proceeded in light of section 300 Cr.P.C as well as Article 20(2) of the Constitution of India. So far argument of Mr. Karmakar, the learned counsel appearing on behalf of the O.P.No.2 is concerned, it is well settled that at any advance stage if a case of interference is made out, the High Cout is competent to exercise its power as held in the case of Satish Mehra v. State (N.C.T. of Delhi) and Another, (2012) 13 SCC 614 wherein at paragraph no.14, it has been held as under:
14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognised to be inherent in every High Court. The power, though available, being extraordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, 6 namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually come on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in their entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.
8. In view of above judgment, under section 482 of the Cr.P.C.
the power is available at relatively at advance stage, even after framing of the charge against the accused. Identical aspect further has been considered by the Hon'ble Supreme Court in the case of G. Sagar Suri and Another v. State of Uttar Pradesh and Others, (2000) 2 SCC 636, wherein at paragraph nos.7 and 8 of the said judgment, it has been held as under:
"7. It was submitted by Mr Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] and Ashok Chaturvedi v. Shitul H. Chanchani [(1998) 7 SCC 698 : 1998 SCC (Cri) 1704] wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the 7 High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
9. In view of above position of law, if the case is of civil in nature which has been given colour of criminal offence, the power can be exercised by the High Court under section 482 Cr.P.C at any stage. In view of that, the argument of the learned counsel appearing on behalf of the O.P.No.2 with regard to further development is answered accordingly. From what has been discussed hereinabove, it is crystal clear that if the case is civil in nature and for that criminal case is filed, the civil law remedy is a time consuming and it does not adequately protect the interest of lenders/ creditors and in view of that, such tendency has arisen in several family dispute and for that also the criminal case is being filed and it is further well settled that every contract cannot be the subject matter of criminal case as has been held by the Hon'ble Supreme Court in the case of Binod Kumar and Others v. State of Bihar and Another, (2014) 10 SCC 663. Paragraph nos.11, 14, 15, 18 and 19 of the said judgment are quoted below:
"11. Referring to the growing tendency in business circles to convert purely civil disputes into criminal cases, in paras 13 and 14 of Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , it was held as under : (SCC pp. 748-49) "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family 8 disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] , this Court observed : (SCC p. 643, para 8) '8. ... It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.'
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
14. At this stage, we are only concerned with the question whether the averments in the complaint taken at their face value make out the ingredients of criminal offence or not. Let us now examine whether the allegations made in the complaint when taken on their face value, are true and constitute the offence as defined under Section 406.
15. Section 405 IPC deals with criminal breach of trust. A careful reading of Section 405 IPC shows that a criminal breach of trust involves the following ingredients:
(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 wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law 9 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.
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 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.
19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed."
10. The dispute between the parties herein is essentially a dispute in which land and development agreement is there and in view of that further reference may be made to the case of Vir Prakash Sharma v. Anil Kumar Agarwal and Another, (2007) 7 SCC 373. Paragraph nos.2,7,8 and 9 of the said judgment are quoted hereinbelow:
"2. The parties hereto entered into a contract for sale and purchase of welding rods. The appellant allegedly did not pay some amount due from him towards supply of the said article. He issued two cheques for a sum of Rs 3559 and Rs 3776 in the year 1983. The said cheques were dishonoured. Alleging that by reason of such act, the appellant has committed offences under Sections 406, 409, 420 and 417 of the Penal Code, a complaint petition was filed by the first respondent in the Court of Special Judicial Magistrate, Rampur which was marked CC No. 132 of 1986. The principal allegation made therein against the appellant reads as under:10
"That the applicant, regarding these cheques and payment of money, wrote several times to the accused and also sent his representative. But he kept on making excuses in making payment. At last he told on 19-12-1985 that he had issued fabricated cheques knowingly with an intention to cheat him and grab his money. He would not pay his money, he is free to take any action, whatever he likes."
7. The principle underlying exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure is now well settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question.
8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus:
"405. 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 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 discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'."
Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.
9. Ordinarily, bouncing of a cheque constitutes an offence under Section 138 of the Negotiable Instruments Act. No complaint thereunder had been taken.
12. In Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] this Court held: (SCC pp. 176-77, paras 14-15) "14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
11
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
(See also Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 :
(2006) 3 SCC (Cri) 188] )"
11. Further the dispute is with regard to development agreement which is the subject matter of complaint case. The development agreement is on the record wherein clause-15 speaks of arbitration and any dispute arising out of the said agreement, that can be referred to the Arbitrator in terms of the Arbitration and Conciliation Act, 1996. Thus, for any dispute, the remedy in the said development agreement is already disclosed and if the case is arising out of development agreement, wherein the mode of remedy is prescribed as 'arbitration', the remedy is to move in accordance with the provisions made in Arbitration and Conciliation Act. Further when the dispute is purely civil in nature and there is mechanism of arbitration, parties are allowed to avail the remedy of arbitration, instead of filing the criminal case. The father of the complainant has already sold the land on consideration amount to the petitioner by sale deed dated 22.05.2010. In light of section 415 IPC unless fraudulent intention is shown from the very beginning, no case of cheating is made out which has been held by the Constitutional Courts time and again. In this background, where the civil proceeding are already pending with regard to the purchase of land as well as development agreement, it is clear that this is a case of civil in nature and if such fact is brought to the knowledge of the High Court, the High Court is having higher 12 responsibility on its shoulder to find out the correct position as any innocent person for civil crime may not to be prosecuted in the criminal case. When a case is decided by any of the litigant to file maliciously, every care is taken in drafting of the complaint petition or the F.I.R so that the ingredient of the offences can be made out and if such facts are there, the High Cout is required to read the things in between the lines. The argument with regard to section 482 Cr.P.C advanced by the learned counsel for the O.P.No.2 is not in dispute. It is well settled that the High Court is required to exercise its power with circumspection, however, at the same time, if the case like this is brought to the knowledge of the High Court, not exercising the power under section 482 Cr.P.C will amount to harassment of the petitioner.
12. In view of the above facts, reasons and analysis, the Court comes to the definite finding that this is a case arising out of civil litigation and for that criminal case has been lodged.
13. Accordingly, entire criminal proceeding including the order taking cognizance dated 22.05.2018 in connection with Complaint Case No.322 of 2017, pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur are quashed.
14. This petition is allowed in the above terms.
15. It is made clear that so far the title suit and the title (partition) suit pending before the learned courts are concerned, that will be decided in accordance with law without prejudice to this order as this order is passed only considering the criminal aspect of the matter.
16. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.) SI/, A.F.R.