Navin Kumar Verma vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with the prayer to quash the entire criminal proceeding in connection with C.P. Case No. 1399 of 2019 as well as the order dated 03.09.2021, passed by the Judicial Magistrate -1st Class, Chatra whereby and where under the learned Judicial Magistrate -1st Class, Chatra found prima facie case for the offences punishable under Section 138 of the Negotiable Instrument Act and under Section 420 of the Indian Penal Code.

Learned counsel for the petitioner at the outset submits that the petitioner does not want to press the prayer to quash the entire criminal proceeding of the said C.P. Case No. 1399 of 2019 so far as the offence punishable under Section 138 of Negotiable Instruments Act is concerned and confines his prayer to quash the portion of the said order dated 03.09.2021 by which the learned Judicial Magistrate 1st Class, Chatra found prima facie case for the offence punishable under Section 420 of Indian Penal Code in respect of the petitioner is concerned.

The allegation against the petitioner is that the petitioner along with his father came to the petrol pump of which the complainant is a partner and told the complainant to give them diesel, promising to pay money for that. On being thus assured, the complainant gave the petitioner diesel worth Rs.50,00,000/- and odd rupees and when the complainant asked for money, the same was paid by the petitioner by issuing five cheques worth Rs.10,00,000/- each of different dates. On 29.08.2019, the complainant presented all the five cheques in the bank account but the cheques were dishonoured because of insufficiency of funds. The complainant intimated about the dishonour of the cheques to petitioner over telephone and also issued notice through his Advocate which was received by the petitioner but the petitioner failed to pay the amount mentioned in the cheques.

On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate -1st Class, Chatra found prima facie case for the offence punishable under Section 138 of the Negotiable Instrument Act and under Section 420 of the Indian Penal Code against the petitioner as well as his father.

It is submitted by the learned counsel for the petitioner that the entire criminal proceeding so far as the father of the petitioner namely Ravindra Kumar Verma has been quashed and set aside by this Court vide order dated 06.09.2024 in Cr.M.P. No. 2896 of 2021. Learned counsel for the petitioner relied upon the judgment of this Court in Cr.M.P. No. 858 of 2020 dated 29.08.2024 and submits that this Court reiterated the 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 and if the intention to cheat has developed later on, the same will not amount to cheating; as has been observed by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336.

The  learned  counsel  for  the  petitioner  next  relied  upon  the Judgment of Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. And Ors. Vs. State of Uttar Pradesh and Anr., reported in (2024) SCC Online SC 2248 para-36 of which reads as under:-

“36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi v. State of Uttar Pradesh, 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) v. State of Jharkhand, 2023 SCC OnLine Jhar 301]” (emphasis supplied)

and submits that for non-payment of the consideration amount of a sale of goods, there can be civil remedy for non-payment of the consideration amount but no criminal case will be maintainable for it.

Hence, it is submitted that the impugned order so far as it relates to the offence punishable under Section 420 of Indian Penal Code against the petitioner be quashed and set aside.

The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for by the petitioner in this criminal miscellaneous petition and submits that in paragraph no.18 of the complaint, it has been specifically averred that the conduct of the petitioner shows that the accused persons had dishonest intention since the beginning and have played deliberate fraud. So, the offence punishable under Section 420 of the Indian Penal Code as well as the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 is made out against the petitioner. It is lastly submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the main allegation is against the petitioner. The petitioner paid the consideration amount of the diesel purchased by five cheques worth Rs.10,00,000/- each but the same were dishonoured.

So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, this is a clear-cut case of sale of goods by the petrol pump of which the complainant is a partner to the petitioner. Admittedly the consideration amount has been paid by the petitioner by way of cheques. So, under such facts of the case, in the considered opinion of this Court, the materials in the record are insufficient to show any deception played by the petitioner since the beginning of the transaction, if any, ever took place between the petitioner and the complainant. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner.

Hence in the considered opinion of this Court, the order dated 03.09.2021, passed by the Judicial Magistrate -1st Class, Chatra in connection with C.P. Case No. 1399 of 2019 is quashed and set aside so far as the offence punishable under Section 420 of Indian Penal Code is concerned but the said order is maintained so far as the offence punishable under Section 138 of Negotiable Instruments Act is concerned.

In the result, this criminal miscellaneous petition is allowed to the aforesaid extent only.