Jharkhand High Court
Md. Mahboob Khan vs State Of Jharkhand ... .... Opp. Party on 14 September, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 4432 of 2022
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Md. Mahboob Khan ... .... Petitioner
Versus
State of Jharkhand ... .... Opp. Party
With
Cr. M. P. No. 4260 of 2022
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Md. Mahboob Khan ... .... Petitioner
Versus
1. State of Jharkhand
2. Jawed Hussain Khan ... .... Opp. Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : M/s Kalyan Roy & Sidhartha Roy, Advocates For the State : M/s S.K. Sinha & Manoj Kr. Mishra, A.P.P. For the O.P. No. 2 : Mr. P.C. Sinha, Advocate
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Oral Order 06 / Dated : 14.09.2023 Both the criminal misc. petitions, arise out of same FIR, are being heard together and shall be disposed of by this common order.
1. Cr. M. P. No. 4432 of 2022 has been filed for quashing the order dated 01.04.2016, 21.03.2017 and 09.11.2022 whereby and whereunder, warrant of arrest and process under Section 82 Cr.P.C. twice against the petitioner has been issued in connection with Town P.S. Case No. 348 of 2014 (G.R. No. 3214 of 2014) under Section 420, 406, 34 of IPC. Cr. M. P. No. 4260 of 2022 has been filed for quashing the order dated 20.09.2014 including the entire criminal proceeding and FIR in connection with Town P.S. Case No. 348 of 2014 (G.R. No. 3214 of 2014) registered under Section 420, 406, 34 of IPC.
2. A complaint filed by one Jawed Hussain Khan impleading the petitioner and Md. Chand under Sections 420, 406, 506, 34 of IPC is the basis of the present case.
3. As per the case of the complainant/informant, on 20.02.2012 the petitioner in order to carry his business had taken a friendly loan of Rs. 20 Lakh for a period of six months. The said amount was paid in cash by the informant and his brother Sahid Hussain. It is alleged that the said amount was not returned and when the informant asked for money, he was abused and threatened.
4. It is submitted by learned counsel for the petitioner that forwarding the complaint under Section 156(3) Cr.P.C. by the Magistrate was in clear violation of the ratio laid down by the Hon'ble Supreme Court in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287. In the prayer portion of the complaint, specific prayer has been made for forwarding the complaint to the police station for registration of the case but it is not supported by affidavit.
5. On merit, it is submitted that the dispute is purely civil in nature and the instant cases has been filed after the period to file money suit for realization of the amount was barred by limitation. Reliance is placed on the following authorities:
i. Cr.M.P. No. 1473 of 2022 (Prem Kumar Sahu Vs. The State of Jharkhand & Anr.) ii. (2021) 7 Supreme 508 (Sripati Singh through his Son Gaurav Singh Vs. The State of Jharkhand & Anr.).
6. It is submitted by learned counsel for the petitioner in Cr. M. P. No. 4432 of 2022 that the order by which the warrant of arrest has been issued is a non- speaking order and does not satisfy the ingredients under Section 73 Cr.P.C. On 21.03.2017 process under Section 82 Cr.P.C. has been issued but the order does not state the date and time of appearance in the order- sheet. Further a notice under Section 41A Cr.P.C. was issued on 04.11.2022 to appear him on 08.11.2022 before the police he has failed to appear and because of this the process under Section 82 Cr.P.C. was re-issued on 09.11.2022.
7. It is submitted by learned counsel for the informant/complainant that from plain reading of para 5 of the complaint, the intention of the petitioner to defraud the informant will be apparent. The petitioner despite several entrities made by the informant kept on delaying the payment and cheque of Rs. 20 Lakh drawn on Axis Bank vide No. 001356 was also given but he requested not to present the same and resultantly the cheque became invalid after two months.
8. Regarding challenge the process issued under Section 82 Cr.P.C. in Cr. M. P. No. 4432 of 2022 it is submitted that the order-sheet has been filed by the informant in the counter affidavit which will show that the petitioner was fully aware of pending criminal proceeding against him and he had preferred A.B.P. No. 282 of 2015 before the Principal Sessions Judge, Giridih which was rejected by order dated 11.12.2015. Further the process has been issued after receiving the execution report that the accused was absconding.
9. After having considered the rival submissions advanced on behalf of both the sides and the materials on record, this Court is of the view that mere existence of a civil remedy cannot be a ground to quash a criminal prosecution if a prima case is made out. It has been held in (2001)8SCC 645 M. Krishnan Vs Vijay Singh and Another that mere pendency of a civil suit between the parties cannot be a ground for quashing the criminal proceeding against the accused.
10. As per the case of the complainant the petitioner had taken ₹ 20 lakhs from the complainant and his brother and had promised to return the same for which a cheque was also given. The said cheque was however not presented for payment on the request of the petitioner and after the said cheque became invalid due to passage of time the petitioner resiled from making any payment. If any part of the said sum would have been paid then it could be a case of civil liability and breach of term of agreement to repay the amount. The non-payment since inception discloses the criminal intent to deceive from the very beginning and a primafacie case of criminal liability appears to be made out. The facts of the authorities relied upon by the learned counsel on behalf of the petitioner is very different to the present case.
11. It has been held in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 that 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. It is the intention which is the gist of the offence. 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.
Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350 in which it has been held that the correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process it is not open to the courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted. Under the above stated position of law and for the reasons discussed above this Court is of the view that this is not a fit case for quashing the entire criminal proceeding arising out of Complaint case No.1903 of 2014. The order dated 20.09.2014 passed by learned Court below by which the Complaint has been forwarded U/S 156(3) of Cr.P.C is in violation of the ratio laid down in Priyanka Srivastava case (supra) and, therefore, is not sustainable in the eyes of law and is accordingly set aside. The learned Court below to proceed as per law treating it as a complaint case. Consequently, Town P.S Case No.348/14, including entire criminal proceeding along with the processes issued against the petitioner is quashed.
Both Criminal Misc. Petitions are, accordingly, disposed of.
(Gautam Kumar Choudhary, J.) AKT Uploaded