Jharkhand High Court
Sachidanand Sharma vs The State Of Jharkhand on 9 February, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 1459 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1459 of 2019
Sachidanand Sharma ... Petitioner
-Versus-
1. The State of Jharkhand
2. Mukesh Kumar ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Binod Kumar Jha, Advocate For the State : Mr. Shailesh Kumar Sinha, A.P.P. For O.P. No.2 : Mr. Bidhan Chandra Dey, Advocate
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10/09.02.2024 Heard Mr. Binod Kumar Jha, learned counsel for the petitioner, Mr. Shailesh Kumar Sinha, learned counsel for the State and Mr. Bidhan Chandra Dey, learned counsel for opposite party no.2.
2. This petition has been filed for quashing of the entire criminal proceeding in connection with Complaint Case No.106 of 2017 including the order taking cognizance dated 15.03.2018, pending in the Court of the learned Judicial Magistrate, 1st Class, Bokaro.
3. The complaint case was filed alleging therein that opposite party no.2 and the petitioner, both are resident of same Shivpuri Colony, Chas, Bokaro and the petitioner requested to the opposite party no.2 to purchase landed properties situated within Mouza 30, Khata No.724, Plot No.3482 and also represented before opposite party no.2 that he is the owner and is in possession of the aforesaid land and the land is free from any litigation and encumbrances. Opposite party no.2 in good faith believing the version of the petitioner agreed to purchase 10 decimals of the aforesaid land and an agreement was executed on 16.09.2014, wherein, it was agreed that the land will be purchase @ Rs.1,31,000/- 2 Cr.M.P. No. 1459 of 2019 per decimal and paid advance amount of Rs.2,00,000/- to him and in this regard, an agreement was also executed. It was further alleged that on 20.01.2015, opposite party no.2 further paid Rs.2 Lakhs and on 16.02.2015, further a sum of Rs.4 Lakhs was paid and acknowledged by the petitioner. It was also alleged that on 30.03.2015, total amount of Rs.10,65,000/- was paid by opposite party no.2 and the petitioner got the sale deed executed in favour of opposite party no.2 by the land owner, namely, Paltu Mahto, Most. Sushila Devi, Bindeshwar Mahto and Nilkamal Mahto, when opposite party no.2 had visited on the land to take possession of the land after execution of sale deed, one Santosh Mahto and his associates did not allow to take physical possession of his land and told him that one Title Suit No.93 of 2014 was pending with regard to said land for declaration of right, title, interest and possession between Santosh Mahto and Nilkamal Mahto. On the basis of the aforesaid facts, the present complaint case was filed against the petitioner under Section 406, 420, 467, 468 and 471 of the Indian Penal Code.
4. Learned counsel for the petitioner submits that the petitioner is neither the land owner nor the Power of Attorney Holder of the alleged land purchased by the complainant-opposite party no.2 and he is only the introducer. He further submits that the land in question was already registered in favour of opposite party no.2 and mutation was already done in favour of opposite party no.2 and, thereafter, rent receipt has also been issued in favour of opposite party no.2. He also submits that there is no allegation of committing any forgery nor there is allegation of committing cheating against the petitioner as there is no 3 Cr.M.P. No. 1459 of 2019 allegation that the petitioner had any intention to deceive the complainant at the time of entering into an agreement. He further submits that in absence of dishonest misappropriation of the property, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. He submits that in identical situation, the case of the petitioner in another complaint case was quashed by a coordinate Bench of this Court in Cr.M.P. No.1580 of 2019, vide judgment dated 22.08.2023.
5. Learned counsel for opposite party no.2 submits that there is direct and specific allegation of cheating against the petitioner and in view of that, the learned Court has rightly taken cognizance. On this ground, he submits that this petition may kindly be dismissed.
6. Having heard the submissions made by the learned counsel for the parties, the Court finds that the allegations are made of selling of the land by another person. The petitioner is only introducer. The land was already registered, mutation was also done and rent receipt has also been issued in favour of opposite party no.2. In this background, it is settled principle of law that to constitute the offence of cheating punishable under Section 420 of Indian Penal Code, the essential ingredient is that the accused must have an intention to cheat the victim from the very inception as has been held by the Hon'ble Supreme Court in the case of Dalip Kaur and others v. Jagnar Singh and another, reported in (2009) 14 SCC 696, paragraph 10 of which reads as under:
"10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties 4 Cr.M.P. No. 1459 of 2019 was essentially a civil dispute resulting from a breach of contract on the part of the appellants by nonrefunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])"
7. It is further settled principle of law that for criminal breach of trust, it is not sufficient to show that money has been retained by the petitioner. It must also be shown that the petitioner dishonestly disposed of the same in some way or dishonestly retained the same, as has been held by the Hon'ble Supreme Court in the case of Binod Kumar and others v. State of Bihar and another, reported in (2014) 10 SCC 663, paragraphs 15, 17 and 18 of which read as under:
"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 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.
17. Section 420 IPC deals with cheating. The essential ingredients of Section 420 IPC are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement.
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 5 Cr.M.P. No. 1459 of 2019 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."
8. There is no allegation against the petitioner of committing misappropriation of any property of having taken money and undisputedly sale deed was executed by Paltu Mahto, Most. Sushila Devi, Bindeshwar Mahto and Nilkamal Mahto and the complainant has got no grievance against them and has not instituted the case against them and consequent upon execution of the sale deed, the property has been mutated and rent receipt has also been issued in favour of opposite party no.2. Thus, no case under Section 406 of the Indian Penal Code is made out.
9. Further, there is no allegation against the petitioner of forging any document which purports to a valuable security or any other document, referred to in section 467 of the Indian Penal Code and, as such, no offence punishable under Section 467 of the Indian Penal Code is made out.
10. In view of the above facts, to allow to continue the proceeding will amount to abuse of process of law.
11. In view of the aforesaid facts, reasons and analysis, the entire criminal proceeding in connection with Complaint Case No.106 of 2017 including the order taking cognizance dated 15.03.2018, pending in the Court of the learned Judicial Magistrate, 1st Class, Bokaro are quashed.
12. Accordingly, this petition is allowed and disposed of. 6 Cr.M.P. No. 1459 of 2019
13. Pending I.A., if any, is disposed of.
14. Interim order, if any granted by this Court, is vacated.
(Sanjay Kumar Dwivedi, J.) Ajay/ A.F.R.