Jharkhand High Court
Akhori Chandreswari Sahay @ Sachin ... vs The State Of Jharkhand on 12 January, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2026:JHHC:608)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2685 of 2024
------
1. Akhori Chandreswari Sahay @ Sachin Sahay, aged about 62 years, S/o Nageshwari Charan Lal,
2. Reeta Sahay, aged about 58 years, W/o Akhori Chadreswari Sahay, Both R/o Vishnupuri, P.O.- Kadma & P.S. - Pela, District-
Hazaribagh ... Petitioners
Versus
1. The State of Jharkhand
2. Prashant Kumar Pradhan, aged about 41 years, S/o Pradip Kumar Pradhan, R/o Okni-2, South Shivpuri, near Kaali Mandir, P.O. & P.S.- Sadar, District - Hazaribagh ... Opposite Parties
------
For the Petitioners : Mr. Mohit Prakash, Advocate
For the State : Mr. Vishwanath Roy, Spl. P.P.
For the O.P. No.2 : Mr. Awanish Ranjan Mishra, Advocate
------
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the order dated 16.12.2023 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Loshighna P.S. Case No.105 of 2023 corresponding to G.R. Case No.2480 of 2023 whereby and where under the learned Additional Chief Judicial Magistrate, Hazaribagh has taken 1 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) cognizance of the offences punishable under Sections 406, 420, 34 of the Indian Penal Code.
3. The brief fact of the case is that the petitioners took an advance of Rs.7,00,000/- from the informant for selling his house and land over which the house is situated for a consideration amount of Rs.12,00,000/- . Later on, they also took Rs.5,00,000/- for their personal necessity but they did not execute the sale-deed. On the basis of the complaint filed by the informant, Complaint Case No.957 of 2019 was registered which upon being referred to police under Section 156 (3) of Cr.P.C., Loshighna P.S. Case No.105 of 2023 was registered and police took up the investigation of the case. After completion of the investigation, police submitted charge-sheet against the petitioners for having committed the offences punishable under Sections 406, 420, 34 of the Indian Penal Code and basing upon the same, the learned Additional Chief Judicial Magistrate, Hazaribagh took cognizance of the said offences on 16.12.2023 in the said case.
4. Learned counsel for the petitioners submits that the petitioners are innocent and have not committed any offence. The informant has filed Title Suit No.93 of 2019 prior to registration of this F.I.R. It is then submitted that the informant has not paid the entire consideration amount, hence, the petitioners have not executed the sale-deed. It is then submitted that though the petitioners, consequent upon failure of the informant to pay the remaining amount, the petitioner attempted to 2 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) return the advance amount taken by him but the same was refused to be accepted by the informant but the informant has received back Rs.1,50,000/- from the petitioners.
5. Learned counsel for the petitioner relies 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-12 of 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 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) and submits that therein the Hon'ble Supreme Court of India has laid down the settled principle of law that the amount paid towards consideration cannot be said to have been entrusted with the accused persons and merely because the accused persons are refusing to register the sale, it does not amount to misappropriation of the advance payment and since there was no entrustment of the property, the offence of misappropriation of the such property and thereby criminal breach of trust cannot be said to have been committed.
6. Learned counsel for the petitioners next relies upon the judgment of this Court in the case of Syed Tarique Alam vs. The State of 3 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) Jharkhand & Another reported in 2025:JHHC:31005 and submits that therein 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 & Another reported in (2005) 10 SCC 336 paragraph-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 submits that therein the Hon'ble Supreme Court of India has reiterated the settled principle of law that in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating.
7. Learned counsel for the petitioners submits that in that case this Court also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Vinod Natesan vs. State of Kerela reported in (2019) 2 SCC 401 in paragraph-11 of which it was observed by the Hon'ble Supreme Court of India that if a civil dispute is tried to be converted into a criminal dispute to continue the criminal proceedings against the accused; the same would be an abuse of the process of law. 4 Cr. M.P. No.2685 of 2024
(2026:JHHC:608) Hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.
8. 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 the instant Cr.M.P. and submit that the materials in the record are sufficient to constitute the offence punishable under Sections 406 and 420 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.
9. 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 Radheyshyam & Others vs. State of Rajasthan & Another (supra) that the amount paid towards consideration cannot be said to have been entrusted with the accused persons in terms of the word 'entrusted' used in Section 405 of the Indian Penal Code.
10. Now, coming to the facts of the case; so far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the only allegation against the petitioners is that the informant paid some advance amount to the petitioners which can be the part of the consideration amount. In view of the settled principle of law as has been reiterated by the Hon'ble Supreme Court of India in the case of 5 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) Radheyshyam & Others vs. State of Rajasthan & Another (supra), payment of advance amount, by no stretch of imagination, can be said to be property 'entrusted'; as the word 'entrusted' appearing in Section 405 of the Indian Penal Code and in the absence of any allegation that there is dishonest misappropriation of any entrusted property against the petitioners, 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 even with the aid of Section 34 of the Indian Penal Code.
11. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, as has already been mentioned in the foregoing paragraphs of this judgment that in the case of Uma Shankar Gopalika vs. State of Bihar & Another (supra), the Hon'ble Supreme Court of India, has in no uncertain manner reiterated the settled principle of law that in order to constitute the offence of cheating, the accused must play deception with the victim since the beginning of the transaction between the parties.
12. 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; because, it is the admitted case of the informant that firstly the informant paid the advance amount and subsequently he paid Rs.5,00,000/- to meet the personal requirement of 6 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) the petitioners. It is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Satish Chandra Ratan Lal Shah vs. State of Gujarat & Another reported in (2019) 9 SCC 148 paragraph-13 of which reads as under:-
"13. Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred." (Emphasis supplied) that mere inability of the accused person of the case to return the loan amount cannot give rise to a criminal prosecution for cheating, unless fraudulent or dishonest intention is shown right at the beginning of the transaction.
13. Now, coming to the facts of the case; as already indicated above, this is a case where the petitioners have not paid the advance amount taken by them and they have not paid another Rs.5,00,000/- which they took for their personal necessity. The undisputed fact remains that the informant has filed a suit for specific performance of the contract, in respect of which the advance was allegedly paid. So, this Court has no 7 Cr. M.P. No.2685 of 2024 (2026:JHHC:608) hesitation in holding that, this is a case where a cloak of criminal case has been given to a purely civil dispute between the parties. Thus, 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 against the petitioners even with the aid of Section 34 of the Indian Penal Code. Therefore, this Court is of the considered view that this is a fit case where the order dated 16.12.2023 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Loshighna P.S. Case No.105 of 2023 corresponding to G.R. Case No.2480 of 2023, be quashed and set aside against the petitioners named above.
14. Accordingly, the order dated 16.12.2023 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Loshighna P.S. Case No.105 of 2023 corresponding to G.R. Case No.2480 of 2023, is quashed and set aside qua the petitioners named above.
15. In the result, this Criminal Miscellaneous Petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 12th of January, 2026 AFR/ Animesh Uploaded on- 13/01/2026 8 Cr. M.P. No.2685 of 2024