Jharkhand High Court
Vijay Kumar Jain @ Vijay Patni @ Vijay … vs The State Of Jharkhand on 11 June, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
( 2025:JHHC:15588 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3028 of 2017
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1. Vijay Kumar Jain @ Vijay Patni @ Vijay Kumar Jain (Patni), son of
Dharam Chand Patni,
2. Vivek Patni,
3. Vinay Patni @ Binay Patni, both sons of Vijay Kumar Jain @ Vijay
Patni,
All residents of Annapurna Building, Flat No.6/2, Sarat Bose
Road, P.O. and P.S. Ballygunge, District-Kolkata (West Bengal).
... Petitioners
Versus
1. The State of Jharkhand, and
2. Ved Prakash Kejriwal, son of Late Brij Mohan Kejriwal, resident of
Fertichem Metal & Alloys, having office at 604, Urmila Tower, P.O.
Dhanbad, P.S. Bank More, District-Dhanbad, at present Kandra
Industrial Area, P.O. and P.S. Barwadda, District-Dhanbad.
... Opposite Parties
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For the Petitioners : Mr. Indrajit Sinha, Advocate
: Mr. Ajay Kr. Sah, Advocate
For the State : Mr. V.S. Sahay, Addl.P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. Though, notice has been validly 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.
3. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash and set aside the entire criminal proceeding including
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the order taking cognizance dated 12.04.2016 by which the learned Judicial
Magistrate, 1st Class, Dhanbad has taken cognizance for the offences
punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal Code and
Section 138 of the Negotiable Instruments Act in connection with Govindpur
(Barwadda) P.S. Case No.47 of 2015 corresponding to G.R. Case No.552 of 2015.
4. The brief facts of the case is that the petitioners representing themselves
to be the directors of M/s Hira Concast Limited in criminal conspiracy led the
informant to believe that if the informant supplies them coke, the payment for
the same can be made within 45 days, after receipt of the coal and by thus
gaining the confidence of the informant as per the demand issued a purchase
order in the name of Fertichem Metal and Alloys for Rs.33,87,990/- and took
coke worth Rs.33,76,208/- from December, 2012 to March, 2013, the payment
for which was to be made between January, 2014 to May, 2014, but even after
demanding the money for several times, the petitioners paid Rs.10,00,000/- on
19.03.2013 and Rs.5,00,000/- on 03.07.2013 but did not pay the remaining
amount of Rs.18,76,208/-. The petitioners also issued a purchase order in the
name of Fogla Enterprises Pvt. Ltd. for Rs.57,35,018/- for coke between
December, 2012 to February, 2012, the payment of which was to be made in
April, 2013, but even after repeated demand, they only paid Rs.51,00,000/- but
did not pay Rs.6,35,018/-.
5. On the basis of written report submitted by the informant, police
registered Govindpur (Barwadda) P.S. Case No.47 of 2015 and took up
investigation of the case. After completion of the investigation, police
submitted charge sheet against the petitioners for having committed the
offences punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal
2 Cr. M.P. No.3028 of 2017
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Code and Section 138 of the Negotiable Instruments Act and on the basis of the
same, the learned Judicial Magistrate, 1st Class, Dhanbad has taken cognizance
of the said offences vide order dated 12.04.2016.
6. Learned counsel for the petitioners relies upon the judgment of the
Hon’ble Supreme Court of India in the case of Lalit Chaturvedi and Others Vs.
State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171,
paragraph-10 of which reads as under:-
10. The chargesheet also refers to Section 406 of the IPC, but
without pointing out how the ingredients of said section are satisfied.
No details and particulars are mentioned. There are decisions which
hold that the same act or transaction cannot result in an offence of
cheating and criminal breach of trust simultaneously. For the offence
of cheating, dishonest intention must exist at the inception of the
transaction, whereas, in case of criminal breach of trust there must
exist a relationship between the parties whereby one party entrusts
another with the property as per law, albeit dishonest intention comes
later. In this case entrustment is missing, in fact it is not even alleged.
It is a case of sale of goods. The chargesheet does refer to Section 506 of
the IPC relying upon the averments in the complaint. However, no
details and particulars are given, when and on which date and place
the threats were given. Without the said details and particulars, it is
apparent to us, that these allegations of threats etc. have been made
only with an intent to activate police machinery for recovery of
money.” (Emphasis supplied)
And submits that therein it has been reiterated by the Hon’ble Supreme
Court of India that the same act or transaction cannot result in an offence of
cheating and criminal breach of trust simultaneously.
7. Learned counsel for the petitioners next submitted that it is a case of sale
of goods, so entrustment is missing, hence, the offence punishable under
Section 406 of the Indian Penal Code cannot be made out. The learned counsel
for the petitioner relied upon the judgment of this Court in the case of Arup
Bhattahargee @ Arup Kumar Bhattacherjee Vs. The State of Jharkhand and
Another reported in 2023 JHHC 42573 wherein this Court has held that as the
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accused person of that case has paid major chunk of the bill raised by the
complainant and the allegation was basically of civil nature, hence, quashed the
entire criminal proceeding.
8. Learned counsel for the petitioners further relies upon the judgment of
this Court in the case of Sandeep Bhargava Vs. The State of Jharkhand and
Another reported in 2024 JHHC 10399 and submits that therein this Court has
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 reported in (2022) 7 SCC
124 wherein the Hon’ble Supreme Court of India reiterated the settled principle
of law that the breach of contractual terms does not ipso facto, constitute the
offence of criminal breach of trust, without there being a clear case of
entrustment. It is next submitted that as the petitioners having been supplied
with the materials admittedly as part of commercial transactions between the
parties, so on that score also the offence punishable under Section 420 IPC
cannot be made out and this is at best a case of civil dispute, hence, it is lastly
submitted that the prayer, as prayed for in the instant Cr.M.P, be allowed.
9. Learned Addl.P.P. appearing for the State on the other hand vehemently
opposes the prayer of the petitioners made in the instant Cr.M.P and submits
that this is a case of cheating but fairly submits that since Section 142 of the N.I.
Act debars any Court to take cognizance of an offence punishable under
Section 138 of NI Act except upon a complaint and certainly in the absence of
any complaint, the learned Judicial Magistrate, 1st Class, Dhanbad has
committed a grave illegality in taking cognizance for the offence punishable
under Section 138 of NI Act. It is further submitted that this Cr.M.P., being
without any merit, be dismissed.
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10. 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 so far as the offence punishable under Section 138 of NI Act is
concerned, Section 142(1)(a) debars any Court taking cognizance of any offence
punishable under Section 138 of NI Act except upon a complaint in writing
made by the payee.
11. Now coming to the facts of the case, the undisputed facts remains that no
complaint in writing has been made by payee or the holder in due course of the
cheque in question.
12. Under such circumstances, this Court has no hesitation in holding that
the learned Judicial Magistrate, 1st Class, Dhanbad has committed grave
illegality by taking cognizance of the offence punishable under Section 138 NI
Act based on a police report followed by submission of charge sheet in the
absence of any complaint in writing made to the court by the payee of the
cheque.
13. So far as the offence punishable under Section 406 of the IPC is
concerned, it is a settled principle of law as has been reiterated by the Hon’ble
Supreme Court of India in the case of Lalit Chaturvedi and Others Vs. State of
Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171 that in case
of the sale of goods, it cannot be said that there is entrustment of the property,
the said principle has also been reiterated by the Hon’ble Supreme Court of
India in the case of Delhi Race Club (1940) Ltd. and Others v. State of Uttar
Pradesh and Another reported in 2024 SCC OnLine SC 2248, paragraph-36 of
which reads as under:-
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“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 OnLineJhar 301]” (Emphasis supplied)
14. Under such circumstances, this court is of the considered view that even
though the entire allegations made against the petitioners are considered to be
true in their entirety, still the offence punishable under section 406 is not made
out.
15. So far as the offence punishable under Section 419 and 420 of the IPC are
concerned, it is pertinent to mention here that it is relevant to refer to para-7 of
the case of Lalit Chaturvedi and Others Vs. State of Uttar Pradesh and
Another reported in 2024 SCC OnLine SC 171 (Supra) which reads as under:-
“7. Similar elucidation by this Court in “V.Y. Jose v. State of
Gujarat“, explicitly states that a contractual dispute or breach of
contract per se should not lead to initiation of a criminal proceeding.
The ingredient of ‘cheating’, as defined under Section 415 of the IPC,
is existence of a fraudulent or dishonest intention of making initial
promise or representation thereof, from the very beginning of the
formation of contract. Further, in the absence of the averments made
in the complaint petition wherefrom the ingredients of the offence can
be found out, the High Court should not hesitate to exercise its
jurisdiction under Section 482 of the Cr. P.C. Section 482 of the
Cr.P.C. saves the inherent power of the High Court, as it serves a
salutary purpose viz. a person should not undergo harassment of
litigation for a number of years, when no criminal offence is made out.
It is one thing to say that a case has been made out for trial and
criminal proceedings should not be quashed, but another thing to say
that a person must undergo a criminal trial despite the fact that no
offence has been made out in the complaint. This Court in V.Y. Jose
(supra) placed reliance on several earlier decisions in “Hira Lal Hari
Lal Bhagwati v. CBI“, “Indian Oil Corporation v. NEPC India Ltd.“,
6 Cr. M.P. No.3028 of 2017
( 2025:JHHC:15588 )“Vir Prakash Sharma v. Anil Kumar Agarwal” and “All Cargo
Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain“.
wherein it has been reiterated that a contractual dispute or breach of
contract per se should not lead to initiation of a criminal proceeding. The
ingredient of cheating is existence of a fraudulent or dishonest intention of
making initial promise or representation from the very beginning of the
formation of contract.
16. Now coming to the facts of the case, it is pertinent to mention here that
the payment for the coke supplied against the purchase order issued in the
name of Fertichem Metal and Alloys was to be made within 45 days after
taking the coke, the initial coke was taken in December, 2012, but even after
expiry of 45 days, the informant used to supply the coke, substantial amount of
the payment of which has already been made by the petitioners.
17. Under such circumstances, in the absence of any allegations of
deceptions played since the beginning of the transaction between the parties,
this Court is of the considered view that even if the entire allegations made
against the petitioners are considered to be true in their entirety, still the
offences punishable under Section 419 and 420 of the IPC is not made out.
18. In view of the discussions made above, this Court has no hesitation in
holding that the continuation of this criminal proceeding against the petitioners
will amount to abuse of process of law, therefore, this is a fit case where the
entire criminal proceeding including the order taking cognizance dated
12.04.2016 by which the learned Judicial Magistrate, 1st Class, Dhanbad has
taken cognizance for the offences punishable under Sections 419, 420, 406,
120B/34 of the Indian Penal Code and Section 138 of the Negotiable
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Instruments Act in connection with Govindpur (Barwadda) P.S. Case No.47 of
2015 corresponding to G.R. Case No.552 of 2015.
19. Accordingly, the entire criminal proceeding including the order taking
cognizance dated 12.04.2016 by which the learned Judicial Magistrate, 1st Class,
Dhanbad has taken cognizance for the offences punishable under Sections 419,
420, 406, 120B/34 of the Indian Penal Code and Section 138 of the Negotiable
Instruments Act in connection with Govindpur (Barwadda) P.S. Case No.47 of
2015 corresponding to G.R. Case No.552 of 2015, is quashed and set aside.
20. In the result, this Cr.M.P., stands allowed.
21. In view of disposal of the instant Cr.M.P., the interim relief granted vide
order dated 21.02.2018, is vacated.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 11th of June, 2025
AFR/ Abhiraj
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