( 2025:JHHC:15588 ) 1 Cr. M.P. No.3028 of 2017 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3028 of 2017 ------ 1. Vijay Kumar Jain @ Vijay Patni @ Vijay Kumar Jain (Patni), son of Dharam Chand Patni, 2. Vivek Patni, 3. Vinay Patni @ Binay Patni, both sons of Vijay Kumar Jain @ Vijay Patni, All residents of Annapurna Building, Flat No.6/2, Sarat Bose Road, P.O. and P.S. Ballygunge, District-Kolkata (West Bengal). … Petitioners Versus 1. The State of Jharkhand, and 2. Ved Prakash Kejriwal, son of Late Brij Mohan Kejriwal, resident of Fertichem Metal & Alloys, having office at 604, Urmila Tower, P.O. Dhanbad, P.S. Bank More, District-Dhanbad, at present Kandra Industrial Area, P.O. and P.S. Barwadda, District-Dhanbad. … Opposite Parties ------ For the Petitioners : Mr. Indrajit Sinha, Advocate : Mr. Ajay Kr. Sah, Advocate For the State : Mr. V.S. Sahay, Addl.P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Though, notice has been validly 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 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding including ( 2025:JHHC:15588 ) 2 Cr. M.P. No.3028 of 2017 the order taking cognizance dated 12.04.2016 by which the learned Judicial Magistrate, 1st Class, Dhanbad has taken cognizance for the offences punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act in connection with Govindpur (Barwadda) P.S. Case No.47 of 2015 corresponding to G.R. Case No.552 of 2015. 4. The brief facts of the case is that the petitioners representing themselves to be the directors of M/s Hira Concast Limited in criminal conspiracy led the informant to believe that if the informant supplies them coke, the payment for the same can be made within 45 days, after receipt of the coal and by thus gaining the confidence of the informant as per the demand issued a purchase order in the name of Fertichem Metal and Alloys for Rs.33,87,990/- and took coke worth Rs.33,76,208/- from December, 2012 to March, 2013, the payment for which was to be made between January, 2014 to May, 2014, but even after demanding the money for several times, the petitioners paid Rs.10,00,000/- on 19.03.2013 and Rs.5,00,000/- on 03.07.2013 but did not pay the remaining amount of Rs.18,76,208/-. The petitioners also issued a purchase order in the name of Fogla Enterprises Pvt. Ltd. for Rs.57,35,018/- for coke between December, 2012 to February, 2012, the payment of which was to be made in April, 2013, but even after repeated demand, they only paid Rs.51,00,000/- but did not pay Rs.6,35,018/-. 5. On the basis of written report submitted by the informant, police registered Govindpur (Barwadda) P.S. Case No.47 of 2015 and took up investigation of the case. After completion of the investigation, police submitted charge sheet against the petitioners for having committed the offences punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal ( 2025:JHHC:15588 ) 3 Cr. M.P. No.3028 of 2017 Code and Section 138 of the Negotiable Instruments Act and on the basis of the same, the learned Judicial Magistrate, 1st Class, Dhanbad has taken cognizance of the said offences vide order dated 12.04.2016. 6. Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Lalit Chaturvedi and Others Vs. State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171, paragraph-10 of which reads as under:- 10. The chargesheet also refers to Section 406 of the IPC, but without pointing out how the ingredients of said section are satisfied. No details and particulars are mentioned. There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously. For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods. The chargesheet does refer to Section 506 of the IPC relying upon the averments in the complaint. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money.” (Emphasis supplied) And submits that therein it has been reiterated by the Hon’ble Supreme Court of India that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously. 7. Learned counsel for the petitioners next submitted that it is a case of sale of goods, so entrustment is missing, hence, the offence punishable under Section 406 of the Indian Penal Code cannot be made out. The learned counsel for the petitioner relied upon the judgment of this Court in the case of Arup Bhattahargee @ Arup Kumar Bhattacherjee Vs. The State of Jharkhand and Another reported in 2023 JHHC 42573 wherein this Court has held that as the ( 2025:JHHC:15588 ) 4 Cr. M.P. No.3028 of 2017 accused person of that case has paid major chunk of the bill raised by the complainant and the allegation was basically of civil nature, hence, quashed the entire criminal proceeding. 8. Learned counsel for the petitioners further relies upon the judgment of this Court in the case of Sandeep Bhargava Vs. The State of Jharkhand and Another reported in 2024 JHHC 10399 and submits that therein this Court has relied upon the judgment of the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Ors. Vs. State of West Bengal reported in (2022) 7 SCC 124 wherein the Hon’ble Supreme Court of India reiterated the settled principle of law that the breach of contractual terms does not ipso facto, constitute the offence of criminal breach of trust, without there being a clear case of entrustment. It is next submitted that as the petitioners having been supplied with the materials admittedly as part of commercial transactions between the parties, so on that score also the offence punishable under Section 420 IPC cannot be made out and this is at best a case of civil dispute, hence, it is lastly submitted that the prayer, as prayed for in the instant Cr.M.P, be allowed. 9. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in the instant Cr.M.P and submits that this is a case of cheating but fairly submits that since Section 142 of the N.I. Act debars any Court to take cognizance of an offence punishable under Section 138 of NI Act except upon a complaint and certainly in the absence of any complaint, the learned Judicial Magistrate, 1st Class, Dhanbad has committed a grave illegality in taking cognizance for the offence punishable under Section 138 of NI Act. It is further submitted that this Cr.M.P., being without any merit, be dismissed. ( 2025:JHHC:15588 ) 5 Cr. M.P. No.3028 of 2017 10. 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 so far as the offence punishable under Section 138 of NI Act is concerned, Section 142(1)(a) debars any Court taking cognizance of any offence punishable under Section 138 of NI Act except upon a complaint in writing made by the payee. 11. Now coming to the facts of the case, the undisputed facts remains that no complaint in writing has been made by payee or the holder in due course of the cheque in question. 12. Under such circumstances, this Court has no hesitation in holding that the learned Judicial Magistrate, 1st Class, Dhanbad has committed grave illegality by taking cognizance of the offence punishable under Section 138 NI Act based on a police report followed by submission of charge sheet in the absence of any complaint in writing made to the court by the payee of the cheque. 13. So far as the offence punishable under Section 406 of the IPC is concerned, it is a settled principle of law as has been reiterated by the Hon’ble Supreme Court of India in the case of Lalit Chaturvedi and Others Vs. State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171 that in case of the sale of goods, it cannot be said that there is entrustment of the property, the said principle has also been reiterated by the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 2248, paragraph-36 of which reads as under:- ( 2025:JHHC:15588 ) 6 Cr. M.P. No.3028 of 2017 “36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi v. State of Uttar Pradesh, 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) v. State of Jharkhand, 2023 SCC OnLineJhar 301]” (Emphasis supplied) 14. Under such circumstances, this court is of the considered view that even though the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under section 406 is not made out. 15. So far as the offence punishable under Section 419 and 420 of the IPC are concerned, it is pertinent to mention here that it is relevant to refer to para-7 of the case of Lalit Chaturvedi and Others Vs. State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171 (Supra) which reads as under:- “7. Similar elucidation by this Court in “V.Y. Jose v. State of Gujarat”, explicitly states that a contractual dispute or breach of contract per se should not lead to initiation of a criminal proceeding. The ingredient of ‘cheating’, as defined under Section 415 of the IPC, is existence of a fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning of the formation of contract. Further, in the absence of the averments made in the complaint petition wherefrom the ingredients of the offence can be found out, the High Court should not hesitate to exercise its jurisdiction under Section 482 of the Cr. P.C. Section 482 of the Cr.P.C. saves the inherent power of the High Court, as it serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years, when no criminal offence is made out. It is one thing to say that a case has been made out for trial and criminal proceedings should not be quashed, but another thing to say that a person must undergo a criminal trial despite the fact that no offence has been made out in the complaint. This Court in V.Y. Jose (supra) placed reliance on several earlier decisions in “Hira Lal Hari Lal Bhagwati v. CBI”, “Indian Oil Corporation v. NEPC India Ltd.”, ( 2025:JHHC:15588 ) 7 Cr. M.P. No.3028 of 2017 “Vir Prakash Sharma v. Anil Kumar Agarwal” and “All Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain”. wherein it has been reiterated that a contractual dispute or breach of contract per se should not lead to initiation of a criminal proceeding. The ingredient of cheating is existence of a fraudulent or dishonest intention of making initial promise or representation from the very beginning of the formation of contract. 16. Now coming to the facts of the case, it is pertinent to mention here that the payment for the coke supplied against the purchase order issued in the name of Fertichem Metal and Alloys was to be made within 45 days after taking the coke, the initial coke was taken in December, 2012, but even after expiry of 45 days, the informant used to supply the coke, substantial amount of the payment of which has already been made by the petitioners. 17. Under such circumstances, in the absence of any allegations of deceptions played since the beginning of the transaction between the parties, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offences punishable under Section 419 and 420 of the IPC is not made out. 18. In view of the discussions made above, this Court has no hesitation in holding that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law, therefore, this is a fit case where the entire criminal proceeding including the order taking cognizance dated 12.04.2016 by which the learned Judicial Magistrate, 1st Class, Dhanbad has taken cognizance for the offences punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal Code and Section 138 of the Negotiable ( 2025:JHHC:15588 ) 8 Cr. M.P. No.3028 of 2017 Instruments Act in connection with Govindpur (Barwadda) P.S. Case No.47 of 2015 corresponding to G.R. Case No.552 of 2015. 19. Accordingly, the entire criminal proceeding including the order taking cognizance dated 12.04.2016 by which the learned Judicial Magistrate, 1st Class, Dhanbad has taken cognizance for the offences punishable under Sections 419, 420, 406, 120B/34 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act in connection with Govindpur (Barwadda) P.S. Case No.47 of 2015 corresponding to G.R. Case No.552 of 2015, is quashed and set aside. 20. In the result, this Cr.M.P., stands allowed. 21. In view of disposal of the instant Cr.M.P., the interim relief granted vide order dated 21.02.2018, is vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 11th of June, 2025 AFR/ Abhiraj