Binod Kumar vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

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 and set aside the order taking cognizance dated 05.08.2019 passed in Complaint Case No.3729 of 2018 by the learned Judicial Magistrate-1st Class, Ranchi whereby and where under the learned Judicial Magistrate-1st Class, Ranchi has found prima facie case for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner.

The allegation against  the petitioner is that  the petitioner, being a developer approached the complainant to develop his land but did not develop his land and by deceiving with dishonest and fraudulent intention  made  the  complainant  to  part  with  his  original  title  documents of the land, under the guise of using the samefor the purpose of obtaining a sanction map for construction of the building over the said land, but even then the petitioner stopped construction and upon repeated demand of the complainant, the petitioner has not given the same to the complainant.

Learned  counsel  for  the  petitioner  relies  upon  the  judgment  of  the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Others vs. The State of West Bengal & Others reported in 2022 LiveLaw (SC) 305 and submits that therein the Hon’ble Supreme Court of India has discussed  the  ingredients  of  the  offence  punishable  under  Section  420  of the Indian Penal Code in para-32 and the ingredients of Section 406 of the Indian PenalCode in the light of its earlier judgments.

Learned counsel for the petitioner next relies upon the judgment of this Court in the case of Bimlendra Kumar Choudhary & Others vs. The State of Jharkhand & Another reported in 2025:JHHC:25967 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696, para 10 of which reads as under:-

“10. The High Court, therefore, should have posed a question as  to whether any  act of  inducement on  the part of the appellant has been raised by the second respondent and whether the appellant  had an intention  to  cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])” (emphasis supplied)

wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the dispute between the parties was essentially  a civil  dispute  resulting  from  a breach  of  contract  on  the  part of the appellants by non-refunding the amount of advance, the same would not constitute the offence of cheating.

It  is  next  submitted  that,  in that  case,  this  Court  also  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:-

“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)

wherein it was held 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 will not amount to cheating.

It is further submitted that, in that case, this Court also relied upon the judgment of 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 paragraph-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)

wherein it has categorically been held by the Hon’ble Supreme Court of India that to make out a case of criminal breach of trust, it is not sufficient  to  show that  money  has  been  retained  by  the  accused  persons but it must also be shown that the accused person dishonestly disposed of the same in some way or dishonestly retained the same.

Learned counsel for the petitioner further submits that the allegation against the petitioner is false and nowhere, it has been mentioned that the petitioner was to return the title documents which he took from the complainant in  the guise of getting the map sanctioned  for construction of building over the land of the complainant, hence, it is lastly submitted that the prayer as prayed for, in this Cr.M.P., be allowed.

Learned  Addl.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 petitioner made in the instant Cr.M.P and submit that all the essential ingredients to constitute the offence of cheating is made out against the petitioner as the petitioner dishonestly induced the complainant to deliver his title documents of his land by dishonest  and fraudulent intention and the complainant after being so deceived, as made to part with his title documents of his property, which the complainant ought not have been parted with, had he not been so deceived. Hence, it is submitted that the same is sufficient to constitute the offence punishable under Section 420 of the Indian Penal Code. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

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  the essential ingredients to constitute the offence punishable under Section 420 of the Indian Penal Code are as follows:-

(1) There should be fraudulent or dishonest inducement of a person by deceiving him;

(2) (a)  The  person  so  induced  should  be  intentionally  induced to deliver any property to any person or to consent that any person shall retain any property, or

(b)  The  person  so  induced  to  do  anything  which  he  would not do or omit if he were not so deceived, and

(c) in cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person induced in body, mind or property as has been reiterated by the Hon’ble Supreme Court of India in the case of R.S. Nayak vs. A.R. Antulay reported (1986) 2 SCC 716.

Now coming to the fact of the case, there is direct and specific allegations that the petitioner fraudulently and dishonestly induced the complainant by deceiving him to part with his title documents which obviously the petitioner was to return after getting the map approved for construction of the building on the land belonging to the complainant, so, in the considered opinion of this Court, if the allegation against the petitioner are considered to be true in their entirety, the same is sufficient to constitute the offence punishable under Section 420 of the Indian Penal Code,  therefore,  this  Court  is  of  the  considered  view  that  this  is  not  a fit case where the prayer as prayed for by the petitioner in this Cr.M.P. is to be acceded in exercise of the power under Section 482 of the Cr.P.C.

Accordingly, this Cr.M.P., being without any merit, is dismissed.