IMPORTANT POINT
The intention to cheat from the inception is essential for the offense under Section 420, and dishonest disposition or retention is required for the offense under Section 406 of the Indian Penal Code.

JUDGMENT :

Heard the parties.

2. 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 the entire criminal proceeding including the order dated 20.02.2019 passed by the learned Judicial Magistrate-1st Class, Koderma in Complaint Case No.693 of 2017 by which the learned Magistrate has found prima facie case for the offences punishable under Sections 406 and 420 of the Indian Penal Code and now the case is pending in the court of learned Judicial Magistrate-1st Class, Koderma.

3. The allegation against the petitioner is that the petitioner took one Hywa vehicle on hire with a promise to deposit Rs.53,700/- every month with the finance company from which company the complainant took the Hywa vehicle. The petitioner paid the said amount for nine months and thereafter stopped paying the money and when the complainant approached the petitioner-accused person, the petitioner-accused person informed him that the Hywa vehicle has been lost and only after getting the same he will deposit the money as promised by him.

4. The learned Magistrate vide order dated 20.02.2019 after taking into consideration the complaint, statement on solemn affirmation of the complainant and the statement of the inquiry witnesses found prima facie case for the offences punishable under Sections 406 and 420 of the Indian Penal Code.

5. Learned counsel for the petitioner submits that even if the allegations made in the complaint is considered to be true in its entirety; still neither the offence punishable under Sections 420 nor under section 406 of the Indian Penal Code is made out. It is next submitted that the petitioner handed over the said vehicle in question to one Jhuku Chakrobarty @ Shyamal Chakrobarty but the vehicle was not with him and one Ishrafil Ansari lodged Topchanchi P.S. Case No.02 of 2018 involving the offences punishable under Sections 420/34 of the Indian Penal Code in which case police has submitted charge-sheet against the said Jhuku Chakrobarty @ Shyamal Chakrobarty. It is next submitted that the petitioner had no intention of cheating the complainant nor the petitioner has dishonestly misappropriated any property of the complainant. Hence, even if the allegations made in the complaint, statement on solemn affirmation of the complainant and the statement of the inquiry witnesses are accepted to be true in its entirety still the offence punishable under Sections 420 or 406 of the Indian Penal Code is not made out. Hence, it is submitted that the entire criminal proceeding including the order dated 20.02.2019 passed by the learned Judicial Magistrate-1st Class, Koderma in Complaint Case No.693 of 2017 be quashed and set aside.

6. Learned Addl.P.P. appearing for the State vehemently opposes the prayer for quashing the entire criminal proceeding including the order dated 20.02.2019 passed by the learned Judicial Magistrate-1st Class, Koderma in Complaint Case No.693 of 2017 and submits that the materials in the record reveals that both the offences punishable under Sections 420 and 406 of the Indian Penal Code are made out. Hence, it is submitted that this Cr.M.P. being without any merit, be dismissed.

7. Having heard the 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 Dalip Kaur and Ors. Vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696, para 10 of which reads as under:-

“10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellant