The necessity of proving fraudulent or dishonest intention for the offences of criminal breach of trust and cheating, and the distinction between civil and criminal disputes.

JUDGMENT :

Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash entire criminal proceeding including the order dated 30.05.2022 passed in connection with Protest-cum-Complaint Case No.241 of 2022 whereby and where under the learned Judicial Magistrate-1st Class, Jamshedpur found prima facie case for the offences punishable under Sections 420, 406, 323, 341, 504, 506, 379/34 of the Indian Penal Code inter alia against the petitioner and took cognizance of the said offences and has also directed for issuance of summons upon filing of requisites by the complainant and now the case is pending in the court of learned Judicial Magistrate-1st Class, Jamshedpur.

3. The brief facts of the case is that the petitioner, in furtherance of the common intention with the co-accused person who is his nephew, has induced the complainant and by way of cheating, made him to pay Rs.1,60,000/- to the co-accused for securing a favourable judgment from the court in a case instituted by the co-accused against the complainant and thereafter an agreement was prepared. The co-accused issued a cheque of Rs.1,60,000/- but the spelling of ‘Lakh’ was mentioned as ‘One Lakhs’, hence, the said cheque was dishonoured. It is alleged that on 10.06.2022 the co-accused, took the complainant to his house and the petitioner voluntarily caused hurt to him and wrongfully restrained him and the petitioner committed theft of Rs.12,000/- from the complainant. On the basis of the Complaint Case No.1837 of 2021 being forwarded to police under Section 156 (3) of Cr.P.C., Telco P.S. Case No.141 of 2021 was registered and police took up investigation of the case. After completion of the investigation, police submitted Final Form by mentioning that the dispute between the parties is a civil dispute and did not send up the petitioner and the co-accused for trial. Upon submission of Final Form, Protest-cum-Complaint Case No.241 of 2022 was filed by the complainant and in his statement on solemn affirmation, the complainant has supported his case and one enquiry witness was also examined who also supported the case of the prosecution and on the basis of the same, the learned Judicial Magistrate-1st Class, Jamshedpur observed that there is sufficient material in the record to proceed further in the case as prima facie case is made out and took cognizance of the offences as already indicated above and ordered for issuance of summons inter alia against the petitioner directing the complainant to file requisites for summons against the petitioner.

4. Learned counsel for the petitioner submits that the petitioner is innocent and has not committed any offence and he has falsely been implicated in this case; which is approbated by the police by way of filing of the Final Form, mentioning that the case is of civil nature. The petitioner has no relationship with the accused. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:-

“18. In the present case, looking at the allegations in the complaint on the face of it, we find no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must als