Leave granted.

We have heard the learned counsel for the appellant – Kanailal Mukherjee and the learned counsel for respondent no. 1 – Toko Teji (son of the complainant, who was brought on record before the High Court upon death of the complainant – Jotam Toko Takam).

Our attention has been drawn to the criminal complaint dated 18.12.2018, which states that the complainant had been demanding repayment of loan of Rs.75,00,000/- (Rupees seventy five lakhs only) along with interest at the rate of 12% per annum and accordingly, the appellant - Kanailal Mukherjee is guilty of criminal offence. It states that the complainant had issued legal notice dated 18.06.2016 for return of the loan amount as per the loan agreement dated 02.04.2008. Having gone through the averments made in the complaint, we do not find that an offence under Section 420 read with Section 34 or Section 120B of the Indian Penal Code, 18601 is made out.

During the course of hearing, learned counsel for respondent no. 1 – Toko Teji has accepted that the loan was granted in the For short, “IPC”.

Digitally signed by Deepak Guglani Date: 2024.03.21 10:13:25 IST Reason:

Signature Not Verified year 2003. It was also stated that part payments were made including the payment of Rs.40,000/- (Rupees forty thousand only), which was made in the year 2010. The complaint, as noted above, was filed in the year 2018.

The ingredients of offence punishable under Section 420 of the IPC requires a fraudulent/dishonest intention from the very beginning of the formation of contract or the time when the loan/money was given. This Court, in a number of judgments, has pointed out the clear distinction between a civil wrong in the form of breach of contract, non-payment of money or disregard to and violation of the contractual terms; and a criminal offence under Section 420 of the IPC. In this case, we find that the said ingredients are completely absent and are not even prima facie established.

In view of the aforesaid position, we set aside the impugned judgment and allow the present appeal, and hereby quash the criminal proceedings in complaint case no. 131/2018 pending before the Judicial Magistrate First Class, Yupia, District - Papam Pare, including the order dated 07.02.2019 taking cognizance against the appellant - Kanailal Mukherjee.

Pending application(s), if any, shall stand disposed of.

.....................J. (SANJIV KHANNA) .....................J. (DIPANKAR DATTA) NEW DELHI;

MARCH 19, 2024.

ITEM NO.38 COURT NO.2 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (Crl.) No. 12158/2023 (Arising out of impugned final judgment and order dated 11-08-2023 in CRLP No. 2/2021 passed by the Gauhati High Court at Itanagar) KANAILAL MUKHERJEE Petitioner(s) VERSUS TOKO TEJI & ANR. Respondent(s) (IA No.194896/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 19-03-2024 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE DIPANKAR DATTA For Petitioner(s) Mr. Basa Mithun Shashank, Adv. Mr. M.V. Mukunda, Adv. Mr. Vivekananda, Adv. Mr. Vikas Mehta, AOR For Respondent(s) Mr. Vivek Kumar, Adv. Mr. Vikrant Yadav, Adv. Mr. Rahul Sharma, Adv. Mr. Gunnam Venkateswara Rao, AOR Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv. UPON hearing the counsel the Court made the following O R D E R Leave granted.

The appeal is allowed in terms of the signed order.

Pending application(s), if any, shall stand disposed of.

(DEEPAK GUGLANI) (R.S. NARAYANAN) AR-cum-PS ASSISTANT REGISTRAR (signed order is placed on the file)