(2026:JHHC:25198) 1 Cr.M.P. No.1549 of 2025 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1549 of 2025 1. Kameshwar Prasad @ Kameshwar Pd. Sahu @ Kameshwar Prasad Saw, aged about 75 years, son of late Dhanraj Saw 2. Anand Kumar Sahu @ Anand Sahu, aged about 52 years, son of Kameshwar Prasad Both are permanent residents of Village-Nawdiha, P.O.-Gadi Nawdiha, P.S.-Jamua, Dist.-Giridih (Jharkhand) .... Petitioners Versus 1. The State of Jharkhand 2. Aman Kumar Saw, son of Sri Pradip Saw, resident of Village- Mirzaganj, P.O.-Mirzaganj, P.S.-Jamua, Dist.-Giridih (Jharkhand) …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners : Mr. Anil Kumar, Sr. Advocate : Mr. Sameer Saurabh, Advocate : Mr. Vishal Kumar, Advocate : Mr. Rohit Ranjan Sinha, Advocate : Mr. Chandana Kumari, Advocate : Mr. Prabhat Kr. Singh, Advocate For the State : Mr. P.K. Chatterjee, Spl. P.P. For O.P. No.2 : Mrs. Jasvindar Mazumdar, Advocate : Mr. Rohan Mazumdar, Advocate : Mr. Naveen Kumar, Advocate ….. By the Court:- I.A. No.11605 of 2026 1. Heard the parties. 2. This interlocutory application has been filed with the prayer for early hearing of this criminal miscellaneous petition. (2026:JHHC:25198) 2 Cr.M.P. No.1549 of 2025 3. Since, hearing of this criminal miscellaneous petition is taken up today, hence, this interlocutory application is disposed of being infructuous. (Anil Kumar Choudhary, J.) Cr.M.P. No. 1549 of 2025 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 with the prayer to quash the entire criminal proceeding including the order taking cognizance dated 03.04.2025 passed by the learned Judicial Magistrate 1st Class, Giridih, in connection with Complaint Case No. 641 of 2024, whereby and where under, the learned Judicial Magistrate 1st Class, Giridih has found prima facie case for the offences punishable under Sections 420 and 406/34 of the Indian Penal Code. 3. The allegation against the petitioners is that the petitioner no.1 entered into an agreement for sale of his property with the complainant and the value of the property was settled Rs.1,45,80,000/- and the petitioner no.1 entered into an agreement for sale dated 27.02.2023 with the complainant and two other persons on taking the advance amount of Rs. 14,00,000/-, the time fixed in the said agreement and payment of the remaining (2026:JHHC:25198) 3 Cr.M.P. No.1549 of 2025 consideration amount by the complainant was 12 months from the date of the agreement but even after the period of 12 months from that agreement as the complainant did not pay the remaining amount, the petitioner no.1 issued a notice through his Advocate intimating forfeiture of the advance amount and the same was countered by the complainant through a notice by his Advocate claiming that the document of the petitioner no.1 is forged one hence, called upon the petitioner no.1 to pay back the advance amount taken; which the petitioner no.1 did not pay back. The only allegation against the petitioner no.2 is that at the time of initial negotiation, he also accompanied the petitioner no.1 to the house of the complainant. 4. On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Giridih found prima facie case of the offence punishable under Sections 420 and 406/34 of the Indian Penal Code and passed the summoning order. 5. It is submitted by the learned Senior Advocate appearing for the petitioners that the case is next fixed to 02.09.2026 for before charge evidence and charge has not yet been framed. 6. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Arshad Neyaz Khan vs. State (2026:JHHC:25198) 4 Cr.M.P. No.1549 of 2025 of Jharkhand & Anr. reported in 2025 SCC OnLine SC 2058, it is submitted by the learned Senior Advocate appearing for the petitioners that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that for establishing the offence of cheating, the complainant was required to show that the accused had a fraudulent or dishonest intention at the time of making a promise or representation of not fulfilling the agreement for sale of the property concerned. Such a culpable intention right at the beginning when the promise was made cannot be presumed but has to be made out with cogent facts. It is next submitted by the learned Senior Advocate appearing for the petitioners that in this case, there is absolutely no allegation against the petitioners that the petitioners played deception since the beginning of the transaction between the parties hence, the question of any cogent facts in this regard being put forth by the complainant does not arise. 7. Learned Senior Advocate appearing for the petitioners next relied upon the judgment of this Court in the case of Ram Binod Choudhary & Ors. vs. The State of Jharkhand & Anr. reported in 2026:JHHC:221 wherein, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar (2026:JHHC:25198) 5 Cr.M.P. No.1549 of 2025 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) which is of the same effect as that of judgment of the Hon’ble Supreme Court of India in the case of Arshad Neyaz Khan vs. State of Jharkhand & Anr. (supra). 8. Learned Senior Advocate appearing for the petitioners further relied upon the judgment of this Court in the case of Jai Prakash Narayan Sinha @ Jai Prakash Narain Sinha & Anr. vs. The State of Jharkhand & Anr. reported in 2025:JHHC:28046 wherein, this Court relied upon the judgment of 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, paragraph no.12 of which reads as under:- “12. Xxxx xxxx xxxx 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 (2026:JHHC:25198) 6 Cr.M.P. No.1549 of 2025 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) and submits that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that the amount paid towards consideration cannot be said to have been entrusted to the accused person by the complainant and merely because the accused person is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. 9. It is next submitted by the learned Senior Advocate appearing for the petitioners that here it is not even the case of the complainant that the petitioner no.1 is refusing to register the sale rather it is the case of the complainant that the complainant is not ready to purchase the property as per terms of the agreement by not paying the remaining amount within the time stipulated in the agreement therefore, the offence punishable under Section 406 of the Indian Penal Code is not made out. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed. 10. Learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer of the petitioners and submits that if the allegations made against the petitioners are considered (2026:JHHC:25198) 7 Cr.M.P. No.1549 of 2025 to be true, in their entirety, then both the offences punishable under Sections 406 and 420 of the Indian Penal Code is in fact being made out. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 11. 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 reiterated by the Hon’ble Supreme Court of India in the case of Arshad Neyaz Khan vs. State of Jharkhand & Anr. (supra) as also in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. (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 and if the intention to cheat has developed later on, the same will not amount to cheating and the culpable intention right at the beginning when the promise was made cannot be presumed but has to be made out with cogent facts. 12. Now coming to the facts of the case, there is absolutely no allegation against the petitioner no.1 of playing deception since the beginning of the transaction between the parties obviously in the absence of any allegation there is no any cogent facts pleaded by the complainant in this respect. (2026:JHHC:25198) 8 Cr.M.P. No.1549 of 2025 13. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner no.1 are considered to be true in their entirety, still, the offence punishable under Section 420 of the Indian Penal Code is not made out. 14. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, in view of the settled principle of law as has been held by the Hon’ble Supreme Court of India in the case Radheyshyam & Others vs. State of Rajasthan & Another (supra), the amount paid as advance consideration amount cannot be said to have been a property entrusted by the complainant to the petitioner no.1 and here it is not the case where the petitioner no.1 refusing to register a sale rather the case of the complainant is that the complainant is not ready to purchase the property in terms of the agreement for sale by not paying the remaining consideration amount within the time period of agreement of 12 months from 27.02.2023. No doubt the verbatim of the agreement goes to show that time was the essence of the contract. So, in the considered opinion of this Court, in this case, there being no entrustment of any property to the petitioner no.1 nor there is any allegation of misappropriation of any entrusted property; which are the essential ingredients to constitute the offence punishable under Section 406 of the (2026:JHHC:25198) 9 Cr.M.P. No.1549 of 2025 Indian Penal Code. Hence even if the entire allegations made against the petitioner no.1 is considered to be true in their entirety, still the offence punishable under section 406 of the Indian Penal Code, is not made out. 15. So far as the petitioner no.2 is concerned, there is admittedly no entrustment or parting with any property to the petitioner no.2. The only allegation against the petitioner no.2 is that at the initial stage of negotiation of the agreement for sale, he also accompanied the petitioner no.1. These allegations against the petitioner no.2, even if are considered to be true in their entirety, still no offence is made out against the petitioner no.2. 16. In view of the discussions made above, this Court is of the considered view that as even if the entire allegations made against the petitioners are considered to be true in their entirety, still, neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out even with the aid of Section 34 of the Indian Penal Code as the petitioners, therefore, this is a fit case where the entire criminal proceeding including the order taking cognizance dated 03.04.2025 passed by the learned Judicial Magistrate 1st Class, Giridih, in connection with Complaint Case No. 641 of 2024 be quashed and set aside. (2026:JHHC:25198) 10 Cr.M.P. No.1549 of 2025 17. Accordingly, the entire criminal proceeding including the order taking cognizance dated 03.04.2025 passed by the learned Judicial Magistrate 1st Class, Giridih, in connection with Complaint Case No. 641 of 2024 is quashed and set aside. 18. In the result, this criminal miscellaneous petition is allowed. 19. In view of the disposal of this criminal miscellaneous petition interlocutory applications, if any, is disposed of being infructuous. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 20th August, 2026 AFR/Gunjan/- Uploaded on 21/08/2026