IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.953 of 2018 ------

Shri Prakash Agrawal son of Kali Charan Agrawal, aged about 64 years, resident of 3 Goenka Lane, P.O.- Bara Bazar, P.S.- Posta, District- Kolkata-West Bengal, Pin Code-700007 … Petitioner Versus

1. The State of Jharkhand

2. Sanjay Kumar Singh son of Late Bishundeo Prasad Singh, resident of Asharam Keshan Road, Castairs Town P.O. + P.S. and District- Deoghar … Opposite Parties ------

For the Petitioner : Mr. Arvind Kr. Choudhary, Advocate For the State : Ms. Priya Shrestha, Spl.P.P.

For the O.P. No.2 : None ------

P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- 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, 1973 with a prayer to quash the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Deoghar in connection with Deoghar Town P.S. Case No.449 of 2017 corresponding to G.R. No.1205 of 2017 as well as the entire criminal proceedings of that case, the F.I.R. of which has been registered for the offences punishable under Sections 406/420 of the Indian Penal Code.

3. Learned counsel for the petitioner submits that the investigation of the case is going on but charge-sheet has not yet been submitted.

4. The allegation against the petitioner is that the petitioner presented the cheque dated 18.03.2017 for Rs.30,00,000/- given by the informant to him as a security, for encashment of the cheque amount even though the informant prior to handing over the cheque as security, paid Rs.30,61,000/- by way of cash and demand drafts. The demand draft amount being Rs.20,91,000/- and rest amount by way of cheque. Subsequently, the cheque presented by the petitioner was dishonoured.

5. Learned counsel for the petitioner submits that the allegation against the petitioner is false. Admittedly, the informant handed over the cheque for Rs.30,00,000/- on 18.03.2017. Since it is the admitted case of the informant that he paid the entire amount of Rs.30,61,000/- to the petitioner prior to 18.03.2017 there is no plausible reason for explaining the occasion for the informant to again hand over a cheque on 18.03.2017. It is next submitted that the undisputed fact remains that after the dishonour of the cheque, the petitioner issued notice demanding the cheque amount to the informant on 05.07.2017 but subsequent to that on 14.07.2017, this F.I.R. has been instituted with ulterior motive to set up a defence in the case instituted by the petitioner against the informant/opposite party No.2 involving the offence punishable under Section 138 of N.I. Act. It is next submitted that in the absence of any allegation that the petitioner had any dishonest intention since the beginning of the transaction between the parties, the offence punishable under Section 420 of the Indian Penal Code is not made out and in the absence of any allegation of any dishonest misappropriation of any entrusted property, the offence punishable under Section 406 of the Indian Penal Code is not made out either. It is next submitted that since neither of the offences in respect of which F.I.R. has been registered is made out, even if the allegations against the petitioner as mentioned in the F.I.R. are considered to be true in their entirety, hence, it is submitted that the prayer of the petitioner, as prayed for in the instant Cr.M.P., be allowed.

6. Learned Spl.P.P. appearing for the State opposes the prayer of the petitioner.

7. Having heard the rival 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 Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336, paragraph No.6 of which reads as under :-

6. Xxxxx It is well settled that every breach of contract woul