Every breach of contract does not constitute cheating; deception must be established from the inception for criminal liability.

JUDGMENT :

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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 the entire criminal proceeding in connection with Complaint Case No. 67 of 2021 registered for the offences punishable under Section 420, 406, 504, 506 of IPC pending in the court of learned JMFC, Jamshedpur as well as the order dated 05.08.2022 passed by learned JMFC, Jamshedpur whereby and where under, learned Magistrate has taken cognizance for the offences punishable under Section 406 and 420 of IPC against the petitioner.

3. The allegation against the petitioner is that the petitioner being the Project Head of Kalinganagar unit of JUSCO, entrusted some work to be done by the complainant, but did not make the payment for the same.

4. Learned counsel for the petitioner submits that the petitioner is working as Chief D.M., (Odisha Business) in the Tata Steel Utilities and Infrastructure Services Limited (TATA STEEL UISL) commonly known as JUSCO. It is next submitted by learned counsel for the petitioner that this complaint has been filed after an inordinate delay of eight years without any plausible reason and the co-accused General Manager (EPC) JUSCO and the Purchase Head, JUSCO are non-existent designations of the company.

5. Learned counsel for the petitioner submits that against the bill of Rs. 3,44,404/-, a sum of Rs. 3,39,965/-has been paid to the complainant and against the bill of 28,32,783/-a sum of Rs. 25,93,314/-has been paid to the complainant through RTGS and cheque and the petitioner is claiming outstanding dues on the basis of an inflated claim. It is next submitted that the allegation against the petitioner is false and the dispute between the parties is civil dispute and no offence punishable under section 420 or 406 of IPC is made out and the order of the learned Magistrate is a non-speaking order. Learned counsel for the petitioner further submits that as admitted by the Enquiry Witnesses No. 4 namely Rajesh Kaibarta and Enquiry Witnesses No. 5 namely Santosh @ Prem Shankar, the work was allotted by the JUSCO, which is a body corporate being a company incorporated under the Companies Act but the said company has not been arrayed as an accused and without the petitioner having committed any overt act; only to harass the petitioner, he has been arrayed as an accused.

6. In support of his contention, learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr. reported in (2007) 7 SCC 373, para 8 of which, reads as under:-

“8. The dispute between the parties herein is essentially a civil dispute. Nonpayment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus:

“405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust’.

Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.”

(Emphasis supplied)

and submits that it is a settled principle of law that when the dispute between the parties, is essentially a civil dispute, non payment or underpayment of the price of the go