Research › Search › Judgment

Jharkhand High Court · body

2026 DAILYLAW 21365 (JHR)

Nageshwar Prasad Verma v. State of Jharkhand

2026-01-05

Anil Kumar Choudhary

body2026
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 482 of Cr.P.C. with the prayer to quash the order dated 27.09.2018 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Complaint Case No. 343 of 2018, whereby and where under, the learned Judicial Magistrate 1st Class, Girdih has taken cognizance for the offence punishable under Section 406, 420/34 of the Indian Penal Code against the petitioners. 3. It is submitted by the learned counsel for the petitioners that the case is fixed for evidence before charge and the next date is fixed on 24.01.2026. 4. The brief fact of the case is that the petitioner no.1 is the brother of the opposite party no.2-complainant and the petitioner no.2 is the wife of petitioner no.1. The petitioner nos.1 and 2 were occupying the joint property of the opposite party no.2 and petitioner no.1. There was a panchayati where it was decided that upon taking Rs.50,000/- to the petitioner no.1 by the opposite party no.2, the petitioners will vacate the house and even though the complainant paid Rs.50,000/- to the petitioner no.1, the petitioners have not vacated the house. 5. Initially, the complainant filed Complaint Case No. 898 of 2017 which upon being referred to police under Section 156 (3) Cr.P.C., Bengabad P.S. Case No. 269 of 2017 was registered but police after investigation of the case found that the dispute between the parties is a civil dispute and did not send up the petitioners for trial; upon which the complainant filed complaint cum protest petition which was registered as Complaint Case No. 343 of 2018 by the learned Judicial Magistrate 1st Class, Giridih and basing upon the same, as well as the statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Giridih has taken cognizance of the offences punishable under Sections 406, 420/34 of the Indian Penal Code against the petitioners. 6. Learned counsel for the petitioners relied upon the judgment of this Court in the case of Vikash Kumar @ Bikash Kumar vs. The State of Jharkhand & Anr. 6. Learned counsel for the petitioners relied upon the judgment of this Court in the case of Vikash Kumar @ Bikash Kumar vs. The State of Jharkhand & Anr. dated 09.08.2023 in Cr.M.P. No. 860 of 2018 and submits that in that case, this Court 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 , paragraph No.6 of 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 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 therein the Hon’ble Supreme Court of India has held that every breach of contract does not give rise to the 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 then only the offence of cheating will be made out and if the intention to cheat has developed later on, the same cannot amount to cheating. 7. 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 Satish Chandra Ratanlal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148 and in paragraph no.11 of which the Hon’ble Supreme Court of India has reiterated the settled principle of law that a mere breach of a 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 and submits that payment of some money for a certain work to be done cannot be termed as ‘entrusted’ as the word ‘entrusted’ has been used in Section 405 of the Indian Penal Code. It is further submitted by the learned counsel for the petitioners that 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 with the aid of Section 34 of the Indian Penal Code; hence, the prayer as made in this criminal miscellaneous petition be allowed. 8. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer and submits that both the offence punishable under Section 406 of the Indian Penal Code as well as Section 420 of the Indian Penal Code are made out if the entire allegations made against the petitioners are considered to be true in their entirety. 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 available in the record, so far as the offence punishable under Section 420 of the Indian Penal Code 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 Uma Shankar Gopalika vs. State of Bihar & Anr. (supra) that in order to constitute the offence punishable under Section 420 of the Indian Penal Code, the accused must have played deception since the inception of the transaction between the parties. Now coming to the facts of the case, there is no allegation against the petitioners of playing deception since the beginning of the transaction between the parties. In the absence of this essential ingredient to constitute the offence punishable under section 420 of the Indian Penal Code, 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 stilled the offence punishable under section 420 IPC is not made out against either of the petitioners. 10. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 para-18 of which reads as under :- “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” Emphasis supplied) that in order to constitute the offence of criminal breach of trust, the prosecution has to establish that there has to be dishonest misappropriation of the entrusted property. 11. Now coming to the facts of the case, the allegation against the petitioners is that the petitioner no.1 received some money from the complainant who is his own brother to do certain work which he promised to do in lieu of receipt of such money and this in the considered opinion of this Court cannot constitute ‘entrusted’ as the word has been used in Section 405 of the Indian Penal Code. 12. There is no allegation against the petitioners of any dishonest misappropriation of any entrusted property. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out even with the aid of Section 34 of the Indian Penal Code. 13. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out even with the aid of Section 34 of the Indian Penal Code. 13. In view of the discussions made above, as even if the entire allegations made against the petitioners are considered to be true in its entirety, still 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 against the petitioners, therefore, continuation of the criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the order dated 27.09.2018 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Complaint Case No. 343 of 2018 be quashed and set aside qua the petitioners. 14. Accordingly, the order dated 27.09.2018 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Complaint Case No. 343 of 2018 is quashed and set aside qua the petitioners. 15. In the result, this criminal miscellaneous petition is allowed.