JUDGMENT :

Anil Kumar Choudhary, J.

1. 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 for quashing the order dated 09.12.2022 passed by the learned Judicial Magistrate-XIII, Ranchi in Complaint Case No. 10035 of 2022 as also the entire criminal proceeding, now pending in the court of learned Judicial Magistrate-XIII, Ranchi.

3. The allegation against the petitioner is that the petitioner entered into a memorandum of understanding cum joint venture contract agreement for initiation of business relationship between Urmila RCP Projects Private Limited and the petitioner inter alia in respect of the project titled ‘Balabaux Empire’ and decided a separate bank account shall be opened for the project of which the petitioner will be the authorized signatory and accordingly, a separate bank account was opened with the petitioner as the authorized signatory. The said memorandum of understanding has an arbitration clause which envisages that in case of any dispute or difference in connection with the said partnership between the parties, their heirs and legal representatives, such disputes shall be referred to arbitration by such arbitrator as may be appointed by mutual consent. It is further alleged that the petitioner has misappropriated the amount of the said business by transferring some of the amounts of the said project from the said exclusive bank account to his own personal account of course, the details of amount withdrawn and the exact magnitude of the amount withdrawn has not been mentioned and apparently not known even to the complainant.

4. The learned Magistrate vide order dated 09.12.2022 basing upon the complaint, statement of the complainant on solemn affirmation and the statement of the two inquiry witnesses have taken cognizance of the offences punishable under Section 406 and 420 of Indian Penal Code.

5. Learned Senior Advocate appearing for the petitioner relying upon the judgment of this Court in Cr.M.P. No. 568 of 2023 in the case of Shamsher Khan & Anr. vs. The State of Jharkhand & Anr. wherein this Court, relied upon the judgment of Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, paragraph no. 6 of which reads as under:-

6. Xxxx xxxx xxxx

It is well settled 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. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied)

and 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 it is submitted that there is absolutely no allegation of any deception having been played by the petitioner and the undisputed facts remains that the petitioner is the cousin brother of the complainant.

6. It is next submitted by the learned Senior Advocate appearing for the petitioner that the complainant has not approached police and straightway filed the complaint case without complying the provision of Section 154 of Code of Criminal Procedure. It is then submitted by the learned Senior Advocate appearing for the petitioner that the allegation against the petitioner is totally false and vague and the initiation of memorandum of understanding dated 01.08.2016 was supplemented with supplementary joint venture agreement on 10.08.2016. It is further submitted by the learned Senior Advocate appearing for the petitioner that