Sandip Layek 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 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to set aside the entire criminal proceedings as well as the order taking cognizance dated 25.11.2024 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad P.S. Case No.310 of 2023 corresponding to G.R. Case No.2149 of 2024 whereby and where under the learned Chief Judicial Magistrate, Dhanbad has taken cognizance of the offences punishable under Sections 406 and 418 of the Indian Penal Code.

The brief fact of the case is that the petitioner was appointed as a Team Leader of Pathrough Software and Solutions Private Limited with the condition that in case the petitioner wants to work with different company, the petitioner will have to give two months’ prior notice to his current employer but the petitioner left his employment with the informant even before the expiry of the notice period of two months, after giving notice.

Learned counsel for the petitioner submits that the allegation against the petitioner is false. It is next submitted that even if the entire allegations made against the petitioner are considered to be true in their entirety, neither the offence punishable under Section 406 nor the offence punishable under Section 418 of the Indian Penal Code is made out against the petitioner. Hence, the continuation of this criminal proceeding as well as the charge-sheet which has been submitted against the petitioner after investigation of the case and the order taking cognizance dated 25.11.2024 which has been passed after submission of the charge-sheet, be quashed and set aside.

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 both the offences punishable under Sections 406 and 418 of the Indian Penal Code are made out against the petitioner; if the entire allegations made against the petitioner are considered to be true in their entirety. 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, the essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code is that

(i) There must be entrustment; and

(ii) There must be misappropriation or conversion to one’s own use or use in violation of a legal direction or obtaining legal possession.

as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641.

Now, coming to the facts of the case there is neither any allegation of entrustment of any property upon the petitioner nor is there any allegation against the petitioner of any dishonest misappropriation of any entrusted property by the petitioner.

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 406 of the Indian Penal Code is not made out against the petitioner.

So far as the offences punishable under Section 418 of the Indian Penal Code is concerned; the essential ingredients to constitute the said offence are:-

(a) accused cheated a person;

(b) at the time of offence accused was bound by law or legal contract to protect the interests of the person whom he cheated;

(c) the obligation related to the transaction involving the cheating;

(d) accused had knowledge that his act was likely to cause wrongful loss to the person cheated and whose interest he was bound to protect.

It is a settled principle of law that in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties, 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.

Now, coming to the facts of the case, there is no allegation against the petitioner of playing deception since the beginning of the transaction between the parties. 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 418 of the Indian Penal Code is made out against the petitioner.

Because of the discussions made above as neither the offence punishable under Section 406 nor the offence punishable under Section 418 of the Indian Penal Code is made out against the petitioner, hence, this Court is of the considered view that the entire criminal proceedings as well as the order taking cognizance dated 25.11.2024 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad P.S. Case No.310 of 2023 corresponding to G.R. Case No.2149 of 2024, as prayed for by the petitioner, be quashed and set aside.

Accordingly, the entire criminal proceedings as well as the order taking cognizance dated 25.11.2024 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad P.S. Case No.310 of 2023 corresponding to G.R. Case No.2149 of 2024 is quashed and set aside.

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