IMPORTANT POINT
Intention to cheat must be established from the inception of the transaction; absence of mens rea negates the offence under Section 420 IPC.

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 to quash the entire criminal proceeding including the order dated 08.06.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1166 of 2021 whereby and where under, the learned Judicial Magistrate 1st Class, Dhanbad found prima facie case for the offences punishable under Sections 420, 406 and 34 of Indian Penal Code and ordered for issue of summons.

3. The allegation against the petitioner is that the complainant was working as a petty contractor in Dhanbad Zonal Railway. During the year 2017-18, the co-accused-Arun Agarwal got a work in that area. The petitioner who is permanent employee of Indian Railways and presently posted as Sr. Section Engineer at Hazaribagh Road and then working as a Junior Engineer along with other officers of Railways made the complainant to do the work of co-accused-Arun Agarwal with the promise to pay the bill of the complainant for the work thus done. The complainant did the work of co-accused-Arun Agarwal of Rs.20,00,000/-. The petitioner stopped the bill of the complainant relating to other works done by him and forced him to do the work of co-accused-Arun Agarwal. The complainant did the work of co-accused-Arun Agarwal after taking loan. The payment of Rs.5,00,000/- was made but Rs.15,00,000/- was not paid to the complainant and on the complainant demanding money on 20.02.2021 at 11:00 am, the petitioner called the complainant to his residence at Gomoh and along with co-accused persons assaulted him and made him sign blank papers.

4. The learned Judicial Magistrate 1st Class, Dhanbad taking into consideration the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses observed that there is sufficient material to proceed inter alia against the petitioner for having committed the offences punishable under Section 420, 406 and 34 of Indian Penal Code and ordered for issue of summons.

5. It is submitted by the learned counsel for the petitioner that since it is the admitted case of the complainant that the co-accused-Arun Agarwal made part payment of the work done by the complainant of co-accused-Arun Agarwal hence, the petitioner has no role in the same nor there is any allegation that the petitioner had any intention to cheat the complainant since the very inception and the offence punishable under Section 420 of Indian Penal Code is not made out against the petitioner. It is next submitted by the learned counsel for the petitioner that there is absolutely no allegation of any entrustment of any property to the petitioner and in the absence of any entrustment of property, the offence punishable under Section 406 of Indian Penal Code is also not made out against the petitioner. Relying upon the judgment of Hon’ble Supreme Court of India in the case of S.W. Palanitkar vs. State of Bihar reported in (2002) 1 SCC 241, paragraph no.8 of which reads as under:-

“8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.” (Emphasis supplied)

It is submitted by the learned counsel for the petitioner that mens rea is a sine-qua-non for a breach of trust giving rise to a criminal prosecution.

6. Learned counsel for the petitioner next relies upon the judgment of Hon’ble Supreme Court of India in the case of Hridaya Ranjan Prasad Verma vs. State of Bihar reported in (2000) 4 SCC 168, paragraph no. 15 of which reads