(2025:JHHC:23712 ) 1 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2385 of 2020 ------ Rajan Choudhary, son of Late Hardeo Prasad Choudhary, aged about 66 years, resident of B. K. Sahay Compound, New Barhi Toli, St. Anne’s School Lane, Tharpakhna, P.O. & P.S.-Lalpur, Dist.- Ranchi … Petitioner Versus 1. The State of Jharkhand 2. Shailly Singh, wife of Sri Ashwini Kumar Singh, aged about 48 years, resident of House No.95A VINS House, Vikash Nagar, Road No.2, Hesag, P.O. + P.S.-Jagarnathpur, Dist.-Ranchi … Opposite Parties With Cr.M.P. No.1179 of 2020 Suman Choudhary, aged about 60 years, wife of Raj Kumar Choudhary, resident of Flat No.3B, 3rd Floor, Sakhipati Apartment, Road No.2, Vikas Nagar, Block more, P.O. & P.S. Jagannathpur, Dist.- Ranchi, permanent resident of Torpa Road Check Post, Khunti Tola, P.O. & P.S. Khunti, Dist.-Khunti … Petitioner Versus 1. The State of Jharkhand 2. Shailly Singh, aged about 48 years, wife of Sri Ashwini Kumar Singh, resident of House No.95A, Vins House, Vikas Nagar, Road No.2, Hesag, P.O. & P.S. Jagannathpur, Dist.-Ranchi … Opposite Parties ------ For the Petitioners : Mr. Nilesh Kumar, Advocate (in both these cases) For the State : Mr. Suresh Kumar, SC (L&C)-II Mr. Pankaj Kumar Choudhary, AC to SC (L&C)-II (in Cr.M.P. No.2385 of 2020) : Mr. Anup Pawan Topno, Addl. P.P (in Cr.M.P. No.1179 of 2020) (2025:JHHC:23712 ) 2 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 For the O.P. No.2 :Mr. Nitish Krishna, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. These Criminal Miscellaneous Petitions have been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to set aside the order dated 09.01.2020 in Complaint Case No.4743 of 2019 passed by the Judicial Magistrate, 1st Class, Ranchi by which learned Magistrate has found prima facie case against the petitioners of these two criminal miscellaneous petitions, for their having committed the offences punishable under Sections 406 and 420/34 of the Indian Penal Code, hence both theses Cr.M.Ps. are disposed of together by this common order. 3. The allegation against petitioners is that the petitioner of Cr.M.P. 2385 of 2020- Rajan Choudhary being a builder cum developer, entered into a development agreement with the complainant to construct the flat on the land of the complainant. It was agreed to between the parties that the Rajan Choudhary will handover 50 % of the constructed units i.e. four number of units to the complainant but as there was some dispute regarding the possession of 1.25 katha of land between the complainant and one Bharat Singh Kerai, so the builder Rajan Choudhary handed over three flats, out of which one was a 2 BHK flat and two were 3 BHK flats and promised to handover the 4th flat only after the dispute between the complainant and Bharat Singh Kerai is resolved, but in the meanwhile he sold the 4th flat to the petitioner of Cr.M.P. No.1179 of 2020- Suman Choudhary. The learned Magistrate on the basis of the complaint, statement on solemn affirmation of the complainant and the (2025:JHHC:23712 ) 3 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 statement of the enquiry witnesses found prima facie case for the offences as already indicated above. 4. Learned counsel for the petitioners relying upon the judgment of the Hon’ble Supreme Court in the case of Usha Chakraborty & Anr. vs. State of West Bengal & Anr. reported in (2023) 15 SCC 135 submits that therein the Hon’ble Supreme Court of India in para-18 has observed that concealment of the existence of a pending civil suit, before competent civil court, between the accused and the complainant, amounts to suppression of material facts and in para-22 of the said judgment the Hon’ble Supreme Court of India took into consideration the fact that, when the issue involved in dispute between the parties is of civil nature and the complainant has already approached the jurisdiction of civil court by instituting the civil suit, the same leaves no doubt that the criminal proceeding is used as weapon of harassment against the accused persons of the case. Learned counsel for the petitioners next submits that the undisputed fact remains that prior to the filing of this complaint, the complainant already filed Original Suit No.634 of 2019 in the court of Civil Judge, Senior Division, Ranchi on 19.09.2019. It is next submitted that there is no allegation of misappropriation of the property hence neither the offence punishable under Section 420 nor the offence punishable under section 406 of the Indian Penal Code is made out. 5. Learned counsel for the petitioners further relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, para-6 which reads as under “6. Xxxx xxxx xxxx. 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 (2025:JHHC:23712 ) 4 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 inception. If the intention to cheat has developed later on, the same cannot amount to cheating.” and submits that it is well settled principle of law 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 punishable under Section 420 of the Indian Penal Code. It is lastly submitted that the prayer as prayed for in these Cr.M.Ps. may be allowed. 6. Learned Addl.P.P. appearing for the State and learned counsel for the O.P. No.2 vehemently opposes the prayer and submits that there is direct and specific allegation against the petitioners for cheating and committing criminal breach of trust, hence at this nascent stage, the prayer to quash and set aside the order dated 09.01.2020 in Complaint Case No.4743 of 2019 as prayed for, by the petitioners ought not be allowed. It is therefore, submitted that this Cr.M.P being without any merit be dismissed. 7. 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 it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, para-12 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 (2025:JHHC:23712 ) 5 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 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) Which has also been reiterated by the Hon’ble Supreme Court of India in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 that merely because an agreement to sell was entered into and which agreement, the accused person of the case failed to honour, it cannot be said that the seller has cheated the complainant and no case for prosecution under Section 420 or Section 406 of the Indian Penal Code is made out. 8. Now, coming to the facts of the case as has been held by the Hon’ble Supreme Court of India in the case Uma Shankar Gopalika vs. State of Bihar & Anr. (supra) that in order to establish the offence of cheating it must be shown that the accused played deception at the beginning of the transaction between the parties. Now coming to the facts of the case, there is no allegation against the petitioners of playing deception at the beginning of transaction between the parties, rather it is the admitted case of the complainant that the petitioner of Cr.M.P. No.2385 of 2020 has already handed over three out of four flats as promised to the complainant and complainant admitted that 4th flat was not handed over because of some land dispute between the complainant with Bharat Singh Kerai. Under such circumstances, in the absence of any allegation that petitioners played deception since the very beginning of transaction between the parties, this court has no hesitation in holding that even if the entire allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 420 of the I.P.C. is not made out. (2025:JHHC:23712 ) 6 Cr. M.P. No.2385 of 2020 with Cr.M.P. No.1179 of 2020 9. So far as Section 406 of the I.P.C is concerned, there is absolutely no allegation of entrustment of any property to the petitioners nor there is any allegation of dishonest misappropriation of entrusted amount. In the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out, hence the continuation of the criminal proceeding against the petitioners will amount to abuse of process of law. Therefore, this court is of the considered view that this is a fit case where the order dated 09.01.2020 in Complaint Case No.4743 of 2019 passed by the learned Judicial Magistrate, 1st Class, Ranchi be quashed and set aside against the petitioners. 10. Accordingly, the order dated 09.01.2020 in Complaint Case No.4743 of 2019 passed by the learned Judicial Magistrate 1st Class, Ranchi is quashed and set aside against the petitioners. 11. In the result, both these Cr.M.Ps. stand allowed. 12. In view of disposal of these Cr.M.Ps., both the interim relief granted earlier vide order dated 04.01.2021 and 23.09.2020 in respective cases, is vacated. 13. Registry is directed to inform the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of August, 2025 AFR/ Rohit