Jharkhand High Court
Ram Prit Sharma vs The State Of Jharkhand Through The ... on 26 February, 2021
Equivalent citations: AIRONLINE 2021 JHA 114, 2021 (2) AJR 212
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 244 of 2016
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Ram Prit Sharma ... Petitioner
-versus-
1. The State of Jharkhand through the Director General of Police,
Jharkhand, Ranchi.
2. The Inspector General of Police, Jamshedpur, PO & PS Mango, District
East Singhbhum.
3. The Senior Superintendent of Police, Jamshdpur, East Singhbhum.
4. The Superintendent of Police, Jamshedpur, East Singhbhum.
5. The Investigating Officer, Sonari Police Station Case No.156 of 2015,
PO & PS Sonari, Jamshedpur, East Singhbhum.
... Respondents
WITH
Cr. M.P. No. 2178 of 2015
----
Mohit Kanwatia ... Petitioner
-versus-
1. The State of Jharkhand
2. Ramprit Sharma ... Opposite Parties
WITH
Cr. M.P. No. 394 of 2016
----
Satpal Sachdev ... Petitioner
-versus-
1. The State of Jharkhand
2. Ram Prit Sharma ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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In W.P.(Cr.) No. 244 of 2016
For the Petitioner : Mr. Rupesh Singh, Advocate
For the Respondents: Mr. Aditya Raman, A.C. to G.A. III
In Cr. M.P. No. 2178 of 2015
For the Petitioner : Mr. Manish Kumar, Advocate
For the State: Mr. Nawin Kumar Singh, A.P.P.
For the O.P. No.2 : Mr. Rupesh Singh, Advocate
In Cr. M.P. No. 394 of 2016
For the Petitioner : Mr. Indrajit Sinha, Advocate
For the State: Ms. Nehala Sharmin, A.P.P.
For the O.P. No.2 : Mr. Rupesh Singh, Advocate
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ORDER
RESERVED ON 10.02.2021 PRONOUNCED ON 26.02.2021 6/ 26.02.2021 Cr. M.P. No.2178 of 2015 & Cr. M.P. No. 394 of 2016 In these criminal miscellaneous petitions filed under Section 482 of the Code of Criminal Procedure, petitioners have prayed for quashing the entire criminal proceeding in Sonari Police Station Case No. 156 of 2015 2 registered under Sections 406/420 of the Indian Penal Code and Section 66D of the Information Technology Act.
2. Quashing of the entire criminal proceeding means, in this case, quashing of the First Information Report.
3 I have heard the counsel for the petitioners in both the cases and counsel for the State assisted by the counsel for the opposite party No.2- informant. Petitioners are the accused in the Sonari P.S. Case 156/2015.
4. Counsel for the petitioners submits that by no stretch of imagination, from bare perusal of the First Information Report, any offence is made out. They submit that when no offence is made out from the First Information Report, then the First Information Report is liable to be quashed. They submit that merely not keeping up a promise cannot be said to be cheating in terms of Section 415 of the Indian Penal Code. It is submitted that from the First Information Report also there is nothing to suggest that from the very inception of the transaction there was any dishonest intention. It is argued that when dishonest intention is lacking, no First Information Report could have been lodged under Sections 406/420 of the Indian Penal Code. It is further submitted that the allegation in the First Information Report is that the informant has invested some money with the petitioners Company, in lieu of some return and after repaying some installments, further installments could not be paid. As per the petitioners, this allegation, by no stretch of imagination makes out an offence under Section 406/420 of the Indian Penal Code. It is further submitted that there are no ingredients of the offence under the Information Technology Act and thus, incorporating Section 66D of the Information Technology Act in the First Information Report is nothing but an abuse of the process of law. On these grounds, counsel for the petitioners pray to quash the First Information Report.
5. Counsel for the opposite party No.2-informant submits that a First Information Report is not the encyclopedia and need not refer to each and every overt act. He submits that the informant was induced to deposit money in lieu of return, but, after making payment of some installments, the accused persons did not pay the installments, rather misappropriated the entire amount. He submits that from the First Information Report, it is clear that this misappropriation of the informant's funds attracts offence punishable under Sections 406/420 of the Indian Penal Code. He further submits that the 3 money, which was taken from the informant was transferred electronically to several other companies, which attracts offence under the Information Technology Act, thus, the penal provision of the Information Technology Act has been incorporated.
6. A First Information Report was registered by the informant showing the petitioners as accused persons. The First Information Report was registered as Sonari Police Station Case No.156 of 2015. In the First Information Report, the informant has stated that one Satpal Sachdev and his son Tarun Sachdev along with one Mohit Kanwatia were known to the informant's family. As they were known to the informant's family, the informant, his wife and his son had sent Rs.2,73,50,000/- in the account of Satpal Sachdev. It was the understanding between the parties that they will float a new company/firm and will induct the informant as a partner. It was agreed that till the new company is floated and starts functioning properly, informant will get 11% return on their investment. It is further stated that till 30.09.2013, the informant received his share of dividend, but, suddenly from 01.10.2013, without giving any information, payment of dividend was stopped. It is alleged that as the dividend got stopped, it had an effect on the health of the informant and his wife and the doctors advised that they have to spend huge amount on account of their treatment. The informant further alleged that they requested the petitioners to return the amount, but, they did not return and rather started avoiding his phone calls. It is mentioned that the informant being a senior citizen, is entitled to get his money back and the accused should be punished for misappropriation of the money of the informant. Aforesaid is the sum and substance of the First Information Report, which has been registered as Sonari Police Station Case No.156 of 2015 under Section 406/420 of the Indian Penal Code and Section 66D of the Information Technology Act.
7. The Hon'ble Supreme Court, in the case of State of Haryana & Others versus Bhajan Lal & Others reported in 1992 Supp(1) SCC 335 has laid down guidelines for exercising inherent powers to quash a First Information Report. After discussing the law and several judgments, the Hon'ble Supreme Court, in paragraph 102 of the said judgment has laid down the following principles: -
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.4
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
8. In the case of Union of India versus Prakash P. Hinduja & Another reported in (2003) 6 SCC 195, the Hon'ble Supreme Court, after considering the judgments, including the judgment of Bhajan Lal (supra) has held that Section 482 of the Code can be exercised to quash the criminal proceeding in following cases: -
1. Where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
2. Where the uncontroverted allegations made in the FIR or the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused
3. Where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection.
9. From the aforesaid judgments and also from several judgments of the Hon'ble Supreme Court, wherein the law has been laid down in relation to 5 quashing of First Information Report, it is now settled principle that if any offence is made out from bare perusal of a First Information Report, the First Information Report cannot be quashed.
10. The Hon'ble Supreme Court in the case of Vinod Natesan versus State of Kerala reported in (2019) 2 SCC 401 has upheld quashing of the proceeding wherein the allegation was civil in nature and a civil dispute was tried to be converted into a criminal dispute. The Hon'ble Supreme Court in the case of Vesa Holdings (P) Ltd. & Another versus State of Kerala & Others reported in (2015) 8 SCC 293 has observed in paragraphs 12 and 13 of the said judgment as follows: -
12. .... The settled proposition of law is 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. ...
13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because of civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not.
11. The Hon'ble Supreme Court in the case of Binod Kumar & Others versus State of Bihar & Another reported in (2014) 10 SCC 663 has held that civil liability cannot be converted to criminal liability and had also held that criminal proceedings are not a shortcut for other remedies.
12. Further, the Hon'ble Supreme Court in the case of Anand Kumar Mahatta versus State (NCT of Delhi) reported in (2019) 11 SCC 706 had taken note of the growing trend in business circle to convert purely civil dispute into a criminal case. In the aforesaid judgment, reliance was placed on Indian Oil Corporation versus NEPC India Ltd. & Others reported in (2006) 6 SCC 736 wherein the Hon'ble Supreme Court at paragraph 13 observed as follows:-
"13. ............ 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."
13. From the narration made in the First Information Report, which has been dealt in the earlier paragraphs, I find that it has only been stated that the informant has invested an amount of Rs.2,73,50,000/- with the accused persons and it was agreed that the informant will be made a partner in the 6 newly floated firm and till the firm starts to run properly, informant will get dividend upon his investment. It is an admitted case of the informant that he got dividend till 30.09.2013 and thereafter payment stopped. This allegation does not contain any criminal aspect. There is nothing in the First Information Report to suggest that since the very inception of the transaction there was a criminal intention to deceive the informant. Even in the FIR there is no such averments. The Hon'ble Supreme Court in the case of S.W. Palanitkar & Others versus State of Bihar & Another reported in (2002) 1 SCC 241 has held that there has to be an averment that since the inception of transaction there was a fraudulent intention of the accused persons. This basic ingredient is absolutely missing in the entire First Information Report. In the case of Inder Mohan Goswami versus State of Uttaranchal & Others reported in (2007) 12 SCC 1, the Hon'ble Supreme Court, while interpreting Section 415 of the Indian Penal Code, has held that there has to be deception of a person and the person has to be fraudulently or dishonestly induced to deliver any property to any person or the consent has been obtained fraudulently. Further, there has to be intentional inducement of a person to do or omit to do, which he would not have done or omitted to have done if he was not so deceived. In paragraph 42 of the said judgment, the Hon'ble Supreme Court had made the following observation: -
42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 need not be fraudulent or dishonest.
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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.
14. Applying the aforesaid provisions of law, which has been laid down by the Hon'ble Supreme Court, I find that the instant case, at best, can be said to be a subsequent failure to keep a promise. The element of dishonest intention is absolutely lacking in this case, which is evident from bare perusal of the First Information Report itself. Further, I find that ingredients of Section 405 of the Indian Penal Code is also missing in the 7 instant cases so as to attract offence punishable under Section 406 of the Indian Penal Code. In the entire First Information Report, the basic ingredients of dishonest misappropriation is missing. As held earlier, the case can, at best, be of subsequent non-fulfillment of the promise to pay the amount.
15. So far as Section 66D of the Information Technology Act is concerned, the same has got no application in this case as there is no element of cheating by impersonation by means of any electronic device or computer as in the First Information Report, there is no whisper about the same. The submission of the counsel for the opposite party No.2 that the money was transferred electronically will not attract Section 66D of the Information Technology Act.
16. The sum and substance of the allegation is that the dividend on the amount of deposit made by the informant was stopped without any reason, though the same was paid for few months. From this First Information Report, as there is no allegation that there was intention to cheat from the very inception, the dispute can be said to be civil in nature being a money claim. To recover money, the instant case has been filed. Thus, in view of the judgment passed by the Hon'ble Supreme Court in the case of Binod Kumar & Others versus State of Bihar & Another reported in (2014) 10 SCC 663 as also in the case of Anand Kumar Mohatta & Another versus State (NCT of Delhi), Department of Home & Another reported in (2019) 11 SCC 706, I find that the allegations made in the FIR not constitute any criminal offence.
17. In view of what has been held above, and relying on the judgments cited above, the First Information Report being Sonari Police Station Case No.156 of 2015 is hereby quashed and set aside and so is the entire proceeding therein, so far as it relates to the petitioners herein.
18. Criminal miscellaneous petitions, being Cr. M.P. No. 2178 of 2015 and Cr. M.P. No.394 of 2016, accordingly, stands allowed.
W.P.(Cr.) 244 of 2016
19. In this writ petition, the informant of Sonari Police Station Case No.156 of 2015 is the petitioner. He has prayed for a writ commanding the respondents to show cause as to how and under what circumstances, Sri Sanjay Chopra has been made witness in the chargesheet in connection with Sonari Police Station Case No.156 of 2015 (G.R. No.3007 of 2015). Further, 8 he has also prayed for a writ commanding upon the respondents to show cause as to why and under what circumstances, two witnesses of the informant, namely, Jitendra Kumar Singh and Nirbhay Kumar Pandey have not been made witnesses in the chargesheet in connection with Sonari Police Station Case No.156 of 2015 (G.R. No.3007 of 2015). He has also prayed for a writ commanding the respondents to show cause as to what steps has been undertaken by the police for procuring the important and vital documentary evidence with regard to the financial transaction of the accused persons. He has also prayed for transferring investigation of the instant case to a competent officer and/or Crime Investigation Department (CID) so that proper investigation is conducted.
20. In view of the order passed in Cr. M.P. No.2178 of 2015 and Cr. M.P. No.394 of 2016 whereby the entire criminal proceeding in relation to the First Information Report being Sonari Police Station Case No.156 of 2015 has been quashed, this writ petition, being W.P.(Cr.) No. 244 of 2016 is rendered infructuous and is, accordingly, dismissed.
(Ananda Sen, J.) Kumar/Cp-03