Akshay Kumar Singh vs The State Of Jharkhand & Anr.

By the Court:- Heard the parties.

Though, notice has validly been served upon the opposite party no.2, yet no one turns up on behalf of the opposite party no.2 in spite of repeated calls.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the First Information Report arising out of Chauparan P.S. Case No.434 of 2021 registered for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner and the said case is pending in the Court of learned J.M.-1^st Class, Hazaribagh.

Learned counsel for the petitioner submits that the investigation of the case is still going on and charge sheet has not yet been submitted in this case.

The allegation against the petitioner is that the petitioner is a partner of the informant and they were doing the courier business in New Delhi. There was a rendition of accounts according to which the informant was to get Rs.25 lakhs from the petitioner. The petitioner told the informant that he will pay the said money by 01.12.2021 but did not return the money and when the informant demanded money from the petitioner, the petitioner fled away with articles worth Rs.75 lakhs and switched of his mobile phone.

Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Velji Raghavji Patel vs. State of Maharashtra reported in 1964 SCC OnLine SC 185, wherein in para-07, it has been reiterated by the Hon’ble Supreme Court of India that every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property, but it is not dominion of this kind which satisfies the requirements of Section 405 of the Indian Penal Code; in order to establish “entrustment of dominion” over property to an accused, the mere existence of that person’s dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. Hence, it is submitted that in the absence of any entrustment of any property to the petitioner, the offence punishable under Section 406 of the Indian Penal Code is not made out.

Learned counsel for the petitioner then submits that in the absence of any allegation of the petitioner having played deception since the beginning of the transaction between the parties, the offence punishable under Section 420 of the Indian Penal Code is not made out. It is lastly submitted that the prayer as prayed for by the petitioner in this Cr.M.P., be allowed.

Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that the allegations against the petitioner if are considered to be true in their entirety, then both the offences punishable under Section 420 & 406 of the Indian Penal Code is made out, hence, the entire criminal proceeding ought not be quashed at this nascent stage. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law 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 as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-6 of which reads as under:-

Now, coming to the facts of the case, it is the admitted case of the informant that the petitioner and the informant were running a partnership business in New Delhi for a considerable period of time. There is no allegation against the petitioner that the petitioner played deception since the beginning of the transaction between the parties and in the absence of the same, this Court has no hesitation in holding that even if the entire allegations against the petitioner are considered to be true in their entirety still the offence punishable under Section 420 of Indian Penal Code is not made out.

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the essential ingredient is that there must be an entrustment of property as has been observed by the Hon’ble Supreme Court of India in the case of Velji Raghavji Patel vs. State of Maharashtra (supra), in case of the dominion of the partnership property, one of the partners cannot be termed to have been ‘entrusted’ with the partnership property, by the other partner; so as to meet the requirement of the word ‘entrusted’ as mentioned in Section 405 of the Indian Penal Code, the punishment for which has been provided in Section 406 of the Indian Penal Code, thus, this Court has no hesitation in holding that in the absence of any entrustment to the petitioner of any property, the question of dishonest misappropriation of the same does not arise and in the absence of these essential ingredients even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner, even if the entire allegations made against the petitioner are considered to be true in their entirety.

In view of the discussions made above as neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioner, even if the entire allegations made against the petitioner are considered to be true in their entirety, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the First Information Report arising out of Chauparan P.S. Case No.434 of 2021 registered for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner and the said case is pending in the Court of learned J.M.-1^st Class, Hazaribagh, be quashed and set aside qua the petitioners.

Accordingly, the First Information Report arising out of Chauparan P.S. Case No.434 of 2021 registered for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner and the said case is pending in the Court of learned J.M.-1^st Class, Hazaribagh, is quashed and set aside qua the petitioner only.

In the result, this Cr.M.P., stands allowed.