Jharkhand High Court
R.Dutta ? Ranjit Kumar Dutta & Ors vs State Of Jharkhand on 13 June, 2013
Author: R.R. Prasad
Bench: R.R. Prasad
Cr. M.P. No. 588 of 2008
An application under Section 482 of the Code of Criminal Procedure.
1. R. Dutta @ Ranjit Kumar Dutta
2. B.K. Chhabra
3. B. Thakur @ Tilak Bilas Thakur ... ... Petitioners
Versus
1. The State of Jharkhand
2. Shri Jagdish Singh ... ... Opp. Parties
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For the Petitioners : Mr. Indrajit Sinha, Advocate
For the State : A.P.P.
For the O.P. No. 2 : M/s Pandey Neeraj Rai, S.K. Lall
& Rohit Ranjan Sinha, Advocates
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PRESENT
HON'BLE MR. JUSTICE R.R. PRASAD
By Court Heard the parties.
This application has been filed for quashing of the entire
criminal proceeding of Complaint Case bearing C/1 Case No. 1532 of 2006
including the order dated 8.6.2007 whereby and whereunder, cognizance
of the offences punishable under Sections 406, 417, 418, 420 and 426 of
the Indian Penal Code has been taken against the petitioners.
Before adverting to the submission advanced on behalf of the
parties, the case of the complainant needs to be taken notice of.
It is the case of the complainant that Stewards and Lloyds of
India Limited, a Kolkata based Company, is registered with Tata Steel.
The company used to take work for execution of various mechanical and
civil work including erection, fabrication and dismantling of structure and
building as required by the steel company. On getting such kind of job, the
company awarded job to the complainant for dismantling of structures
and building, transportation of store materials from one destination to
another, transportation of debris, shifting of materials from one place to
another. While the work assigned to the complainant was being done, the
petitioner nos. 2 and 3 in the capacity of the authority of the company
asked the complainant verbally to do the work also other than the work
assigned under the written order. The complainant did that and on
completion of the job, the complainant submitted bills for Rs. 22 lakhs
which was not paid in spite of legal notice being given. In such situation,
there was no option for the complainant but to lodge a complainant which
was lodged and was registered as C/1 Case No. 1532 of 2006 in which
cognizance of the offences punishable under Sections 406, 417, 418, 420
and 426 of Indian Penal Code has been taken against the petitioners.
Mr. Indrajit Sinha, learned counsel appearing for the
petitioners, submits that accepting the entire allegation to be true, the
petitioners cannot be said to have committed offence under which
cognizance of the offences has been taken, as the petitioners have never
been alleged to have deceived the complainant fraudulently and
dishonestly, rather it is a simple case of non-payment of the dues, claimed
by the complainant, which dispute is civil in nature and as such non-
payment of dues can be said to be a mere breach of agreement and under
the situation, the order taking cognizance is fit to be set aside.
As against this, Mr. Pandey Neeraj Rai, learned counsel
appearing for the opposite party no. 2, submits that it is the case of the
complainant that the complainant at the behest of petitioner nos. 2 and 3
did accomplish the job which was orally assigned to the complainant by
accused no. 2 besides the job assigned under written order and only
thereafter put forth demand of the money which the complainant by
accomplishing the job had earned, but it was never paid and therefore, it
would amount misappropriation of the amount which the complainant
claimed to have earned.
Further submission is that the petitioners have come forward
with a plea that they had never taken job from the complainant and thus
the conduct of the petitioners goes to show that the petitioners' intention
was there to cheat the complainant. Learned counsel in support of his
submission has referred to observation made by the Hon'ble Supreme
Court in Paragraph-15 of the decision rendered in a case of Hridaya
Ranjan Prasad Verma and others Vs. State of Bihar and another
{(2000) 4 SCC 168}.
Learned counsel further submits that in the worst case if the
court does find that the case of cheating and criminal breach of trust is
not made out, a case of dishonest misappropriation in terms of the
provision as contained in Section 403 of Indian Penal Code is certainly
made out.
In the context of the submission advanced on behalf of the
parties, it is to be considered as to whether the allegation made in the
complaint does constitute offence of cheating or criminal breach of trust
and even of dishonest misappropriation or not ?
The offence of cheating has been defined under Section 415 of
the Indian Penal Code which reads as follows:
"Cheating - Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any persons shall retain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he
were not so deceived and which act or omission causes
or is likely to cause damage or harm to that person in
body, mind reputation or property, is said to 'cheat".
From its reading it appears that following ingredients should
necessarily be there for constituting offence of cheating:-
(1) there should be fraudulent or dishonest
inducement by the person alleged to have
deceived the complainant.
(2) (a) the person so deceived should be induced to
deliver any property to any persons, or to
consent that any person shall retain any
property or
(b) the person so deceived should be intentionally
induced to do or omit to do anything which he
would not do or omit if he were not so
deceived.
(3) in cases covered by 2(b) the Act or omission
should be one which causes or is likely to cause
damage or harm to the person induced in
bodily or reputation or property.
Thus, the first element necessary for constituting the offence
of cheating is deception of the complainant by the accused. Unless there
is deception, the offence of cheating never gets attracted. After deception
has been practiced the persons deceived should get induced to do or omit
to do something.
Here in the instant case, it is a simple case of the complainant
that the complainant on being assigned job under written and even orally
did accomplish the job but payments were not made. Nothing has been
alleged that at the time of assignment of job, deception has been
practiced by the accused. Thus, I do find that necessary ingredient is
lacking for constituting an offence of cheating. Hence, it be recorded that
no offence of cheating is made out even if the entire allegations made out
in the complaint are taken to be true.
So far as the offence under Section 406 of Indian Penal Code is
concerned, that also does not appear to have been made out against the
petitioners. Criminal breach of trust has been defined in Section 405 of
the Indian Penal Code which reads as under:
"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 willfully suffers any other
person so to do, commits "criminal breach of trust".
On reading of the said provision, the following ingredients
should be there for constituting the offence under Section 405 of the
Indian Penal Code.
"(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 willfully suffer any
other person to do so;
(c) that such misappropriation, conversion, use or
disposal should be in violation of any direction of laws
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."
In the background of the allegation made in the complaint, I do
not find it a case of criminal breach of trust, rather it is a pure case of
breach of agreement which could have been enforced in the competent
court of civil jurisdiction.
Further going in the matter, I also do not find any case being
made out under Section 403 of Indian Penal Code. Section 403 of Indian
Penal Code speaks about dishonest misappropriation of property which
reads as under:-
"403.Dishonest misappropriation of property.--
Whoever dishonestly misappropriates or converts to his
own use any movable property, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
Explanation 1.--A dishonest misappropriation for a time
only is a misappropriation within the meaning of this
section.
Explanation 2.--A person who finds property not in the
possession of any other person, and takes such property
for the purpose of protecting it for, or of restoring it to, the
owner, does not take or misappropriate it dishonestly, and
is not guilty of an offence; but he is guilty of the offence
above defined, if he appropriates it to his own use, when
he knows or has the means of discovering the owner, or
before he has used reasonable means to discover and give
notice to the owner and has kept the property a reasonable
time to enable the owner to claim it.
What are reasonable means or what is a reasonable time in
such a case, is a question of fact.
It is not necessary that the finder should know who is the
owner of the property, or that any particular person is the
owner of it; it is sufficient if, at the time of appropriating it,
he does not believe it to be his own property, or in good
faith believe that the real owner cannot be found."
In order to establish an offence under Section 403 of Indian
Penal Code, the prospection has to prove
(a) that the property was the property of the complainant,
(b) that the accused misappropriated that property or
converted to his own use; and
(c) that he did so dishonestly.
Here in the instant case, if the petitioners as per their claim
earned something by doing job earning of which was not given, it cannot
be said to have been dishonestly misappropriated as in the event of taking
of personal property with which one has been entrusted especially in a
fiduciary capacity one can be said to have misappropriated or embezzled
the property. However, according to learned counsel appearing for the
petitioners, deception can be gathered even from the conduct of the
parties and from the conduct if it would appear that the petitioners had
had intention to commit offence either of cheating or offence of dishonest
misappropriation of the property, he can be held guilty. In support of this
submission, observation made by the Hon'ble Supreme Court in
paragraph-15 of Hridaya Ranjan Prasad Verma (supra) was made,
which reads as follows:-
"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."
On perusal of the said observation, it be stated that the
Hon'ble Supreme Court is of clear view 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 i.e.
the time when the offence is said to have been committed.
It may be reiterated that nothing is there in the entire
complaint to show that any property, which had been entrusted to the
petitioners, has been misappropriated nor any act of deception seems to
be there right from the beginning on the part of the petitioners to assign
the job and not to pay the claim. In such situation, the case appears to be
of mere breach of agreement.
Accordingly, entire criminal proceeding of C/1 Case No. 1532
of 2006, including the order dated 8.6.2007 taking cognizance under
Sections 406, 417, 418, 420 and 426 of Indian Penal Code against the
petitioners is hereby quashed.
In the result, this application is allowed.
(R.R. Prasad, J.)
Jharkhand High Court, Ranchi
Dated 13th June, 2013
AKT