Crl.A. No.  2121/2010  @ SLP(Crl.) No. 7520 of 2009 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2121 OF 2010 ARISING OUT OF SLP (CRL.) NO. 7520 OF 2009

P. UDAY KUMAR ..... APPELLANT

VERSUS

STATE OF JHARKHAND & ANR. ..... RESPONDENTS

O R D E R

1. Accused,  aggrieved  by  the  order  dated  27th March,  

2009,  passed  by  the  Jharkhand  High  Court  in  Criminal  

Revision No. 634 of 2008 refusing to set aside the order  

dated 29th July, 2008, passed by the Judicial Magistrate,  

First Class, Bermo at Tenughat in G.R. No. 441 of 2007  

whereby  the  application  filed  for  discharge  had  been  

rejected, has preferred this petition for granting leave..  

2. Leave granted.

3. Short facts giving rise to the  present appeal are  

that the complainant who is respondent No. 2 herein filed  

a petition of complaint in the Court of Additional Chief  

Judicial  Magistrate,  Bermo,  Tenughat,  inter  alia,  

alleging that the complainant is the Project Director of  

Power Mech Project Private Limited and Managing Director  

of  Manne  Project  Private  Limited.   A  contract  for

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construction  of  work  of  second  unit  of  D.V.C.  at  

Chandrapura was allotted to BHEL Company, which in turn  

assigned  the  work  to  the  aforesaid  Power  Mech  Project  

Private Limited as petty contractor.  According to the  

complainant he had appointed the appellant as its petty  

contractor.  Appellant commenced his work but disclosed  

to the complainant that he is facing problem in executing  

the work due to insufficiency of funds and, therefore,  

demanded money from him with the promise that the amount  

will  be  adjusted  at  the  time  of  settlement  of  the  

account.  Accordingly, complainant gave a total sum of  

Rs.  11,45,714/-  on  different  dates  as  loan  through  

cheques so that the work is expeditiously completed.  The  

appellant  after  receipt  of  the  amount  proceeded  to  

execute the work and when the required progress was not  

made the complainant asked the appellant to return the  

amount, in case he is not interested in executing the  

work.  Despite promise, the appellant did not return the  

amount.

4. On the basis of the complaint laid, the learned  

Magistrate took cognizance of offence under Section 406  

of the Indian Penal Code.  The complaint was referred to  

the police for investigating under Section 156(3) of the  

Code of Criminal Procedure and on that basis FIR No. 26  

of  2007  was  lodged  under  Section  420  and  406  of  the

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Indian Penal Code.  Police after investigation submitted  

charge sheet under Sections 406 and 420 of the Indian  

Penal Code and the appellant was summoned to face the  

trial.

5. During the trial appellant filed an application for  

discharge  under  Section  239  of  the  Code  of  Criminal  

Procedure and the learned Magistrate by order dated 29th  

July,  2008,  directed  for  framing  of  the  charge  under  

Section 406 of the Indian Penal Code and while doing so,  

it was observed that no offence under Section 420 of the  

Indian  Penal  Code  is  made  out.   Appellant  herein  

aggrieved  by  the  same,  preferred  revision  application  

before the High Court which has been dismissed by the  

impugned order.

6. Mr. Shree Prakash Sinha, learned Counsel appearing  

on behalf of the appellant submits that according to the  

complainant itself, the amount was given to the appellant  

as loan for executing the contract work and, therefore,  

the ingredients of Section 405 of the Indian Penal Code  

so as to make the offence punishable under Section 406 of  

the Indian Penal Code is not made out.   

6. Mr.  Sanjeev  Kumar,  learned  Counsel  appearing  on  

behalf of the complainant – respondent No. 2, however,  

submits that it is a triable issue and the High Court  

rightly dismissed the revision application observing  so.

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7. We have appreciated the rival submissions and we  

find  substance in the submission of the learned Counsel  

for the appellant.  According to the complainant itself  

the amount was given as loan and as such the amount given  

cannot be said to have been entrusted to the accused and,  

therefore, the allegation made does not constitute the  

offence punishable under Section 406 of the Indian Penal  

Code.

8. We  are  of  the  opinion  that  prosecution  of  the  

appellant  is  an  abuse  of  the  process  of  the  Court.  

However,  this  shall  have  no  bearing  on  any  civil  

proceeding pending or to be instituted in future between  

the parties.

9. In  the  result,  the  appeal  is  allowed,  impugned  

orders are set aside and the appellant is discharged from  

the case.

........................... J

      [HARJIT SINGH BEDI]

........................... J

      [CHANDRAMAULI KR. PRASAD]

NEW DELHI OCTOBER 25, 2010.

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