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2025 DIGILAW 2001 (JHR)

Ramdhan Mahto v. State of Jharkhand

2025-10-08

ANIL KUMAR CHOUDHARY

body2025
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 528 of B.N.S.S., 2023 inter alia with the prayer to quash the entire criminal proceeding arising out of Ormanjhi P.S. Case No. 110 of 2022, corresponding to G.R. No. 3379 of 2023 along with the order dated 29.11.2023 wherein the learned Judicial Magistrate, Ranchi consequent upon the submission of charge sheet has taken cognizance of the offence punishable under Sections 420 /406/120B/34 of INDIAN PENAL CODE against the petitioners. 3. The allegation against the petitioners is that the petitioners entered into an agreement for sale with the informant and Md. Tabrej Alam and took advance for the same but did not sell the said land and the petitioners also entered into such agreement and taken advance for sale of his land from several persons also. 4. Learned counsel for the petitioners relies upon the judgment of this Court in the case of Maya Rani vs. The State of Jharkhand & Anr. reported in 2025 JHHC 19884 and submits that therein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Satishchandra Ratanlal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148 wherein, the Hon’ble Supreme Court of India reiterated the settled principle of law that mere breach of promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 of INDIAN PENAL CODE , without there being a clear case of entrustment. It is next submitted by the learned counsel for the petitioners that in that case, this Court also relied upon the judgment of the Hon’ble Supreme Court of India in the case of Radheyshyam & Ors. vs. State of Rajasthan & Anr. reported in 2024 SCC OnLine SC 2311 , paragraph no. 12 of which reads as under:- “12. In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. 12 of which reads as under:- “12. In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied) wherein, the Hon’ble Supreme Court of India has held that the amount paid towards consideration cannot be said to have been entrusted with the accused persons and in that case, it was also observed by the Hon’ble Supreme Court of India that mere breach of contract does not constitute the offence of cheating or criminal breach of trust. 5. It is next submitted by the learned counsel for the petitioners that in that case also, this Court further relied upon the judgment of 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 xxxxx xxxxx xxxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) wherein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that unless the accused persons plays deception since the beginning of the transaction between the parties, the offence of cheating punishable under Section 420 of INDIAN PENAL CODE is not made out. 6. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Ors. 6. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Ors. vs. State of Karnataka & Anr. reported in 2025 INSC 917 wherein, the Hon’ble Supreme Court of India has relied upon its judgment in the case of V.P. Shrivastava vs. Indian Explosives Ltd. reported in (2010) 10 SCC 361, wherein it was held that that subsequent failure to not honour a promise cannot form basis of initiating criminal action alleging cheating or criminal breach of trust and therein, the Hon’ble Supreme Court of India also relied upon its judgment in the case of Delhi Race Club (1940) Limited vs. State of Uttar Pradesh reported in 2024 SCC OnLine SC 2248 wherein, it has been reiterated that the FIR cannot be maintained under both Sections 406 and 420 of the INDIAN PENAL CODE ; as the ingredients of both sections are mutually exclusive and cannot co-exist. 7. It is lastly submitted by the learned counsel for the petitioners that even though the entire allegations made against the petitioners are considered to be true in their entirety, still neither the offence punishable under Section 406 of INDIAN PENAL CODE nor the offence punishable under Section 420 of INDIAN PENAL CODE is made out against the petitioners; even with the aid of Section 120B of INDIAN PENAL CODE or 34 of INDIAN PENAL CODE . Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 8. Learned Additional Public Prosecutor on the other hand vehemently opposes the prayer and submits that since the beginning of the transaction between the parties, the petitioners had the intention to cheat and after investigation of the case, the allegations were found to be true. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after going through the materials 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 Dalip Kaur and Ors. Vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , paragraph no. 10 of which reads as under:- “10. Vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696 , paragraph no. 10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non- refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [ (2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute the offence of cheating. 10. Now undisputedly, this is a case of breach of contract as the informant paid some advance to the petitioners for purchase of a land but the petitioners is not ready and willing to sell the land. 11. 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 (supra) that if the intention to cheat has developed later on, the same cannot amount to cheating. 12. After going through the materials in the record, it is apparent that averments have been made by the informant that much after the petitioners refused to execute the sale deed in favour of the informant, the informant came to know that the petitioners have taken advance from certain other persons also. Now there is no material in the record to suggest that whether the petitioners took advance in respect of the selling of the land in question first from the informant or any other person, the name and description of whom has not been mentioned anywhere in the materials available in the record. 13. Now there is no material in the record to suggest that whether the petitioners took advance in respect of the selling of the land in question first from the informant or any other person, the name and description of whom has not been mentioned anywhere in the materials available in the record. 13. Under such circumstances, this Court is of the considered view that there is no material or allegation in the record to show that the intention to cheat on the part of the petitioners have developed before receiving the advance. In the absence of such essential ingredients, this Court is of the considered view that the offence punishable under Section 420 of the INDIAN PENAL CODE is not made out even if the entire allegations made against the petitioners are considered to be true in their entirety. 14. So far as the offence punishable under Section 406 of INDIAN PENAL CODE is concerned, as has already been settled in the case of Radheyshyam & Ors. vs. State of Rajasthan & Anr. (supra) that taking advance amount for the sale of land and non-refunding the same, does not amount to entrustment of money. Thus, in the absence of any material to suggest that there is any entrustment of money or property to the petitioners and in the absence of any allegation that there is any dishonest misappropriation of any entrusted property by the petitioners, this Court is of the considered view that the offence punishable under Section 406 of INDIAN PENAL CODE is not made out against the petitioners even with the aid of Section 120B of INDIAN PENAL CODE or 34 of INDIAN PENAL CODE . 15. In view of the discussions made above, as neither the offence in respect of which cognizance has been taken against the petitioners is made out even if the entire allegations made against the petitioners are considered to be true in their entirety hence, this Court is of the considered view that this is a fit case where the entire criminal proceeding arising out of Ormanjhi P.S. Case No. 110 of 2022, corresponding to G.R. No. 3379 of 2023 along with the order dated 29.11.2023 passed by learned Judicial Magistrate, Ranchi be quashed and set aside qua the petitioners only. 16. 16. Accordingly, the entire criminal proceeding arising out of Ormanjhi P.S. Case No. 110 of 2022, corresponding to G.R. No. 3379 of 2023 along with the order dated 29.11.2023 passed by the learned Judicial Magistrate, Ranchi is quashed and set aside qua the petitioners only. 17. In the result, this criminal miscellaneous petition is allowed.