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2026 DAILYLAW 21244 (JHR)

Aditya Khemka v. State of Jharkhand

2026-02-09

Anil Kumar Choudhary

body2026
JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the entire criminal proceedings including the order taking cognizance dated 07.12.2022 passed by the learned Judicial Magistrate, Ranchi in connection with Complaint Case No. 6708 of 2021 whereby and where under the learned Judicial Magistrate, Ranchi found sufficient material to proceed against the petitioner for having committed the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. The brief fact of the case is that the petitioner approached the complainant to sell Infrared Thermometer Gun at the rate of Rs.3,250/- each plus tax if the order would be for 1000 pieces of thermometers. The complainant altogether in installments sent Rs.36,10,000/-to the petitioners and the thermometers were to be supplied before 29.04.2020 but the petitioners did not supply any Infrared Thermometer within the stipulated time of 29.04.2020 and supplied 200 pieces on 11.05.2020 but the same were worse than the products that were to be supplied and subsequently, also sent 250 pieces after the COVID-19 pandemic was over and by that time, the market value of the product went down substantially. Hence, the complainant could sell only 250 pieces of the product. These number of products received by the petitioners and sold by the petitioners is as per his statement under the solemn affirmation recorded in the case but as per the protest-cum-complaint petition, on 06.05.2020 the petitioners delivered 200 pieces of thermometer of sub-standard quality as though the complainant ordered for the product of Infrared Thermometer manufactured by Aditya Infotech Limited of CP-Med Brand but the product delivered was of Hored Brand. Later on, on 11.05.2020, the petitioners delivered 600 pieces of CP-Med Brand Thermometer Gun but in the meantime, several companies have flooded the market with their respective products and the price had gone down, therefore, the petitioners could sell only 250 pieces of the products and remaining of 350 pieces of Thermometer could not be sold. The complainant urged the petitioners to take back the same and return the price of the same but the petitioners-accused persons did not agree for the same. The complainant first lodged written report with Argora Police Station and basing upon which, Argora P.S. Case No. 354 of 2020 was registered. The complainant urged the petitioners to take back the same and return the price of the same but the petitioners-accused persons did not agree for the same. The complainant first lodged written report with Argora Police Station and basing upon which, Argora P.S. Case No. 354 of 2020 was registered. Police took up investigation of the case and after completion of the investigation, submitted Final Form as the dispute was of civil nature. Thereafter, the complainant filed protest-cum-complaint case and on the basis of the protest-cum-complaint case, the statement on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate, Ranchi found prima facie case for the said offences as already indicated above in the foregoing paragraphs of this judgement. 4. Learned counsel for the petitioners relies 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 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) and submits that therein, it has been held by the Hon’ble Supreme Court of India that in order to constitute the offence of cheating, the accused person must play deception since the very inception and if the intention to cheat has developed later on, the same cannot amount to cheating. It is next submitted that in this case, there is no allegation against the petitioners of playing deception since the beginning of the transaction between the parties rather the petitioners have supplied articles but belatedly. So, the same cannot be stated to be a case of playing deception by the petitioners since the beginning of the transactions between the parties. 5. So, the same cannot be stated to be a case of playing deception by the petitioners since the beginning of the transactions between the parties. 5. Learned counsel for the petitioners next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vesa Holdings Private Limited & Another Vs. State of Kerala & Others reported in (2015) 8 SCC 293 and submits that therein in para-12, it has been reiterated by the Hon’ble Supreme Court of India that the settled proposition of law is 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 an deception played at the very inception. 6. Learned counsel for the petitioners then relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Others vs. State of West Bengal & Others reported in (2022) 7 SCC 124 and submits that in para-47 of the said judgment, it has been observed by the Hon’ble Supreme Court of India that in order to attract the ingredients of Sections 406 and 420 of the Indian Penal Code, it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and others to defraud the complainant right from the inception. Furthermore, it has to be prima facie established that due to such alleged act of cheating, the complainant had suffered wrongful loss and the same had resulted in wrongful gain for the accused. 7. Learned counsel for the petitioners then relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360 and submits that therein in para-13, it has been observed by the Hon’ble Supreme Court of India that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. 8. Learned counsel for the petitioners further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vir Prakash Sharma Vs. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. 8. Learned counsel for the petitioners further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vir Prakash Sharma Vs. Anit Kumar Agarwal & Another reported in (2007) 7 SCC 373 and submits that therein in para-8, it has been observed by the Hon’ble Supreme Court of India that if the dispute between the parties is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 9. Learned counsel for the petitioners also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Maksud Saiyed vs. State of Gujarat & Others reported in (2008) 5 SCC 668 and submits that therein, it was observed by the Hon’ble Supreme Court of India that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. 10. Learned counsel for the petitioners also submits that there is no allegation against the petitioners of entrustment of any property to the petitioners and in the absence of that, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners. It is then submitted that the complaint has been filed by mentioning half truth as the complainant has suppressed the material facts that the petitioners upon cancellation of the order of 200 pieces of Infrared Thermometer, returned Rs.7,19,000/- on 07.07.2020 to the complainant. It is then submitted that the undisputed fact remains that there is no agreement or understanding between the parties for taking back the unsold quantity of the product supplied. It is lastly submitted that the petitioners are employees of Aditya Infotech Limited and they are not liable for the discharge of the day-to-day functioning of the company as there is no material in the record to suggest as to how the petitioners are responsible for the acts of the said company. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 11. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 11. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in this Criminal Miscellaneous Petition and submit that since the materials in the record is sufficient to constitute both the offences punishable under Sections 420 and 406 of the Indian Penal Code, hence, the learned Judicial Magistrate, Ranchi has not committed any illegality in finding the sufficient materials to proceed against the petitioners for having committed the said offences. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 12. 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 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 in order to constitute the offence of cheating, the accused person must play deception since the beginning of the transaction between the parties. 13. Now coming to the facts of the case, there is no allegation against the petitioners of playing deception since the beginning. The undisputed fact remains that some of the articles have been supplied by the petitioners and for non-supply of the remaining articles, the company of the petitioners has returned Rs.7,19,000/- to the opposite party No.2/complainant. This case is a case of delay in supply of articles. So, mere delay in supply of the articles under the facts of the case, is insufficient to constitute the essential ingredients the offence of cheating, more so in the absence of any allegation that the petitioners cheated the complainant/opposite party No.2 since the beginning of the transaction between the parties. Therefore, even if the entire allegations made against the petitioners are considered to be true, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners. 14. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, entrustment of the property and dishonest misappropriation of the property is essential ingredients. 15. 14. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, entrustment of the property and dishonest misappropriation of the property is essential ingredients. 15. Now coming to the facts of the case, there is no allegation against the petitioners of entrustment of any property to the petitioners. The money has been sent by the complainant/opposite party No.2 to the employees of the petitioners being Aditya Infotech Limited for purchasing certain articles nor there is any allegation against the petitioners of dishonest misappropriation of any property or conversion of the entrusted property to their personal use or using the entrusted property in violation of any legal contract. In the absence of these essential ingredients to constitute the offence punishable under Section 406 of the Indian Penal Code, 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 offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners. 16. In view of the discussions made above as neither the offence punishable under Section 406 of the Indian Penal Code nor the offence punishable under Section 420 of the Indian Penal Code, is made out, even if the entire allegations made against the petitioners are considered to be true in their entirety, this Court is of the considered view that the continuation of the criminal proceeding against the petitioners will amount to abuse of process of law. Hence, this is a fit case where the entire criminal proceedings including the order taking cognizance dated 07.12.2022 passed by the learned Judicial Magistrate, Ranchi in connection with Complaint Case No. 6708 of 2021 be quashed and set aside against the petitioners named above. 17. Accordingly, the entire criminal proceedings including the order taking cognizance dated 07.12.2022 passed by the learned Judicial Magistrate, Ranchi in connection with Complaint Case No. 6708 of 2021, is quashed and set aside against the petitioners named above. 18. In the result, this Criminal Miscellaneous Petition is allowed.