Jharkhand High Court
Aarsh Sahu @ Arsh Sahu vs The State Of Jharkhand on 22 November, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1396 of 2017
Aarsh Sahu @ Arsh Sahu, son of Mr. K.P. Sahu, resident of Burdman
Compound, Kali Mandir Road, P.O. & P.S.-Lalpur, Ranchi-834001 and
one of the Director, Brahmaputra Metallics Limited, Kamta Gola, P.O.
& P.S.-Gola, Dist.-Ramgarh-829210
.... Petitioner
Versus
1. The State of Jharkhand
2. Manoj Saw, son of late Bhola Sao, proprietor of M/s M.S.
Construction, Village-Futkadih, P.O.-Barkipunu, P.S.-Mahuatand,
Dist.-Bokaro-829112
3. Proprietor of M/s. Jay Bajrangbali, Village-Petarwar, P.O. & P.S.-
Petarwar, Dist.-Bokaro-829121
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Chitranjan Kr. Jha, Advocate For the State : Mr. Arup Kr. Dey, Addl. P.P. For O.P. Nos.2 & 3 : Mr. Zaid Ahmed, Advocate .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 18.04.2017 passed by the learned S.D.J.M., Bermo at Tenughat in connection with Complaint Case No.2 of 2017 whereby and where under, learned S.D.J.M., Bermo at Tenughat found prima facie case against the petitioner for having committed the offences punishable under Sections 323, 406 and 420 of Indian Penal Code.Cr.M.P. No.1396 of 2017 1
3. The allegation against the petitioner is that the petitioner is the director of a plant, which engaged the complainant as a contractor.
The complainant was paid from 2008-14 but in 2014 the plant stopped payment to the complainant. The complainant is entitled to get Rs.62,24,000/- from the plant and when the complainant demanded money from the petitioner, the petitioner pushed the complainant and went away.
4. On the basis of the complaint, statement of the complainant on solemn affirmation and statement of the inquiry witnesses, the learned S.D.J.M., Bermo at Tenughat found prima facie case of the offence punishable under Section 323, 406 and 420 of Indian Penal Code.
5. Learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr. reported in (2007) 7 SCC 373, paragraph nos. 8 and 13 of which reads as under:-
"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.
13. The ingredients of Section 420 of the Penal Code are as follows:
Cr.M.P. No.1396 of 20172
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception." (Emphasis supplied) as well as the paragraph no.15 of the judgment of Hon'ble Supreme Court of India in the case of Hridaya Ranjan Prasad Verma vs. State of Bihar & Anr. reported in (2000) 4 SCC 168 and submits that in those cases the Hon'ble Supreme Court of India has in no uncertain manner, reiterated the settled principle of law that non-payment or underpayment of the price of the goods by itself does not amount to commission of the offence of cheating or criminal breach of trust.
6. It is next submitted by the learned counsel for the petitioner that there is no allegation against the petitioner of causing hurt to the complainant or anyone else and in the absence of the same, even if the entire allegation made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 323 of Indian Penal Code is not made out, against the petitioner. It is further submitted by the learned counsel for the petitioner that the allegation against the petitioner is false and only for wreaking vengeance this false case has been instituted against the petitioner. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.
7. Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer made by the petitioner in this criminal miscellaneous petition Cr.M.P. No.1396 of 2017 3 and submits that there is direct and specific allegation against the petitioner that the petitioner by way of cheating had defrauded the complainant of Rs.62,24,000/- and has misappropriated the same and in the complaint the complainant has stated that the petitioner slapped him once though he has not supported the said part of the complaint case, in his statement on solemn affirmation. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
8. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that 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 no. 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 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 Cr.M.P. No.1396 of 2017 4 inception. If the intention to cheat has developed later on, the same will not amount to cheating.
9. Now coming to the facts of the case, it is the admitted case of the complainant that the complainant was paid his dues by the plant of which the petitioner is stated to be a director, for the period of six years from 2008 to 2014. So, it cannot be said that the petitioner has played deception since the beginning of the transaction and in the absence of the same, certainly, even if the allegation made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 420 of Indian Penal Code is not made out.
10. So far as the offence punishable under Section 406 of Indian Penal Code is concerned, this is the case at best of underpayment and as has been reiterated by the Hon'ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr. (supra), underpayment of the price of the goods by itself does not amount to commission of an offence of criminal breach of trust. Further, there is no allegation of any entrustment to the petitioner. The company in which the petitioner is stated to be a director has not been arrayed as an accused. There is no allegation of entrustment to the petitioner personally of any property nor there is any allegation of dishonest misappropriation of any entrusted property against the petitioner. Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 406 of Indian Penal Code is not made out.
11. So far as the offence punishable under Section 323 of Indian Penal Code is concerned, though in the complaint there has been an Cr.M.P. No.1396 of 2017 5 allegation that the petitioner slapped the complainant once, but the said fact has not been supported by the complainant in his statement on solemn affirmation rather in his statement on solemn affirmation the complainant has stated that the petitioner pushed him. There is no allegation that hurt was caused to the complainant or anyone else by the petitioner. Under such circumstances, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 323 of Indian Penal Code is not made out.
12. In view of the discussions made above this Court is of the considered view that continuation of the criminal proceeding of the petitioner in connection with Complaint Case No. 2 of 2017 will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 18.04.2017 passed by the learned S.D.J.M., Bermo at Tenughat in connection with Complaint Case No.2 of 2017 be quashed and set aside.
13. Accordingly, the entire criminal proceeding including the order dated 18.04.2017 passed by the learned S.D.J.M., Bermo at Tenughat in connection with Complaint Case No.2 of 2017 is quashed and set aside.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd November, 2024 AFR/Sonu-Gunjan/-
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