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Judgment
Heard the parties.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with the prayer to quash the entire criminal proceeding including the order dated 05.12.2017 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with C.P. Case No. 2378 of 2014 whereby and where under, the learned Judicial Magistrate 1st Class, Dhanbad has found prima facie case for the offence punishable under Sections 417 and 420/34 of the Indian Penal Code.
The allegation against the petitioners is that the petitioners being the owner of the land entered into an agreement for sale and the complainant paid Rs.1,47,50,000/- as advance. After entering into the agreement, the complainant started the work on the concerned land but one person namely Shankar Mahto informed the complainant that there is a case in respect of the land. The complainant got the boring done on the land, got the plan approved, paid money to the architect and altogether spent Rs.1,00,00,000/- in these respect but later on the said Shankar Mahto got the work of the complainant stopped. The complainant approached the petitioner no.2 and told him to either get the case settled or to refund his money. The petitioners refunded Rs.1,47,50,000/- to the complainant and cancelled the agreement and later on sold the land to one Shri Ram Buildcom but did not return Rs.1,00,00,000/- spent by the complainant.
On the basis of the protest-cum-complaint case, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Dhanbad found prima facie case for the offences punishable under Sections 417 and 420/34 of the Indian Penal Code.
It is submitted by the learned counsel for the petitioners that the complainant first filed C.P. Case No. 2075 of 2011 which upon being referred to police under Section 156(3) of Cr.P.C., Seraidhela P.S. Case No. 159 of 2012 was registered and police submitted final form mentioning the case to be a mistake of fact and thereafter the complainant filed the complaint petition.
Relying upon the judgment of the 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 no. 8 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.” (Emphasis supplied)’s it is submitted by the learned counsel for the petitioners that even if the entire allegations made against the petitioners are considered to be true in their entirety, still no offence is made out against the petitioners.
Learned counsel for the petitioners next relied upon the judgment of the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. vs. State of West Bengal & Ors. reported in (2022) 7 SCC 124, paragraph no. 35 of which reads as under:-
“35.To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i)The representation made by the person was false.
(ii)The accused had prior knowledge that the representation he made was false.
(iii)The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv)The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.” it is submitted by the learned counsel for the petitioners that the Hon’ble Supreme Court of India has dealt with the essential ingredients of the offence of cheating and no offence is made out against the petitioners even if the entire allegations made against the petitioners are considered to be true in their entirety. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed.
Learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer and submits that since the petitioners have not returned the money spent by the complainant in getting the plan approved and making the payment to the architect and thus sustained loss therefore, both the offences in respect of which learned Judicial Magistrate 1st Class, Dhanbad has found prima facie case is in fact being made out. Hence, it is submitted that this criminal miscellaneous petition 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 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:-
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 in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating.
So far as the offence punishable under Section 417 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are :-
Accused voluntarily or dishonestly induced the complainant
He did so for delivery of some property either to the accused or some other person;
He intentionally induced the complainant to do a thing which he would not do or omit to do a thing which he would done if not induced;
Such act caused or likely to cause some damage or harm to his body, mind, reputation or property.
Now coming to the facts of the case, there is absolutely no allegation against the petitioners of having played deception since the beginning of the transaction between the parties. It is the admitted case of the complainant that the petitioners have refunded the advance amount to the complainant after the complainant told the petitioners to either settle the dispute or to refund the money. So, once the complainant having demanded back the advance amount, the petitioners having paid back the said amount, in the considered opinion of this Court particularly, in the absence of any deception played by the petitioners since the beginning of the transaction between the parties, that even if the entire allegations made against the petitioners are considered to be true in their entirety, still neither the offence punishable under Section 417 of the Indian Penal Code nor the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioners even with the aid of Section 34 of the Indian Penal Code. Therefore, continuation of the criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 05.12.2017 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with C.P. Case No. 2378 of 2014 be quashed and set aside qua the petitioners.
Accordingly, the entire criminal proceeding including the order dated 05.12.2017 passed by the learned Judicial Magistrate 1st Class, Dhanbad in connection with C.P. Case No. 2378 of 2014 is quashed and set aside qua the petitioners.
In the result, criminal miscellaneous petition is allowed.