IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1869 of 2023 Rahul Kumar, aged about 46 years, son of Yogendra Tripathi, resident of MIG B/94, Housing Colony, P.O. & P.S.-Dhanbad, Dist.-Dhanbad .... Petitioner Versus

1. The State of Jharkhand

2. Parsuram Chauhan, son of late Etwary Chauhan, resident of Bastakola, P.O. & P.S.-Jharia, Dist.-Dhanbad …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY …..

For the Petitioner : Mr. Anish Kr. Mishra, Advocate For the State : Mr. Shashi Kr. Verma, Addl. P.P.

For O.P. No.2 : None …..

By the Court:-

1. Heard the parties.

2. Though notice has validly been served upon the opposite party no.2 yet no one turns up on behalf of the opposite party no.2 in-

spite of repeated calls.

3. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with the prayer to quash the order dated 13.04.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 20 of 2023 whereby and where under, the learned revisional court has set aside the order dated 29.11.2022 passed by the learned Judicial Magistrate 1st Class, Dhanbad in MCA No. 1330 of 2019 in connection with Dhanbad P.S. Case No. 645 of 2016, corresponding to G.R. No. 4014 of 2016.

4. The brief fact of the case is that the opposite party no.2 took loan of Rs.7,01,000/- from the petitioner for his necessary work after gaining confidence of the petitioner that he being a government servant will return the same. Subsequently, the opposite party no.2 issued cheques which were dishonoured upon being presented in the bank.

5. On the basis of the written report submitted by the informant, police registered Dhanbad P.S. Case No. 645 of 2016, corresponding to G.R. No. 4014 of 2016 and took up investigation of the case. After investigation of the case, police submitted charge sheet and basing upon which, the learned Judicial Magistrate 1st Class, Dhanbad took cognizance of the offences as already mentioned above.

6. On 29.11.2022 the learned Judicial Magistrate 1st Class, Dhanbad took up petition filed by the accused person of the case dated 30.01.2019 for discharge but the learned Judicial Magistrate 1st Class, Dhanbad found that there is sufficient material in the record to constitute the offences punishable under Section 406 and

420 of the Indian Penal Code and rejected the petition.

7. Being aggrieved by the same, the opposite party no.2 of the case filed Criminal Revision No. 20 of 2023. The learned Sessions Judge, Dhanbad relied upon the judgment of the Hon’ble Supreme Court of India in the case of Hridaya Ranjan Prasad Verma & Ors. vs. State of Bihar & Anr. reported in (2000) 4 SCC 168 wherein, the Hon’ble Supreme Court of India has observed the distinction between mere breach of contract and the offence of cheating and in the absence of any merit to show that opposite party no.2 had any fraudulent or dishonest intention at the time of taking the money, held that the offence punishable under Section 420 of the Indian Penal Code is not made out and in the absence of any record to show entrustment of any property to the opposite party no.2 and dishonest misappropriation thereof went on to hold that the offence punishable under Section 406 of the Indian Penal Code is also not made out and set aside the order dated

29.11.2022.

8. It is submitted by the learned counsel for the petitioner that the learned Sessions Judge, Dhanbad without considering the materials in the record in their correct perspective has illegally quashed and set aside the order passed by the learned Judicial Magistrate 1st Class, Dhanbad. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

9. Learned Additional Public Prosecutor on the other hand vehemently opposes the prayer and submits that there is no illegality in the order passed by the learned Sessions Judge, Dhanbad. Hence, it is submitted that this criminal miscellaneous petition being without any mer