Kalidas Munda vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

Since, both these cases have been filed with the same prayer arising out the same case, hence, both these Criminal Miscellaneous Petitions are being disposed of by this common judgment.

These Criminal Miscellaneous Petitions have been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the same prayer to quash and set aside the entire criminal proceeding including the order dated 24.04.2019 passed by learned Judicial Magistrate-1st Class, Dhanbad in C.P. Case No.2800 of 2018 whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offences punishable under Sections 420/406/34 of the Indian Penal Code against the petitioners.

The allegation against the petitioner of Cr.M.P. No.1776 of 2020 namely  Krishna  Kumar  Marandi  @  Krishna  Marandi  is  that  he  being  the Circle Officer, Nirsa and the petitioner of Cr.M.P No.2713 of 2019 being the Block Development Officer, Kaliasol in furtherance of common intention with the co-accused persons; without any no objection certificate furnished by the villagers concerned got constructed one Anganbari Kendra, Kara Patthar, Rai Tola in a place near the School instead of constructing the same at the identified place over plot no.505, Khata No.17, Mauza No.183, Kharapathar.

Learned  counsel  for  the  petitioners  submit  that  the  charge  has  not yet  been  framed in this case  and  the case  is  next fixed on  16.01.2026 for evidence before charge.

Learned counsel for the petitioners relies upon the judgement of the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another reported in (2024) 10 SCC 690 and submits that therein it has been reiterated by the Hon’ble Supreme Court of India that the FIR cannot be maintained under both the Sections  406  and  420  of  the  Indian  Penal  Code  as  the  ingredients  of  both the sections are mutually exclusive and cannot co-exist.

Learned counsel for the petitioners next relies upon the judgment of this Court in the case of Ramdhan Mahto & Others vs. The State of Jharkhand  reported in  2025:  JHHC:  30990  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.

Learned counsel for the petitioners further submits 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, the Hon’ble Supreme Court of India has reiterated the settled principle of law that unless the accused persons play deception since  the  beginning  of  the  transaction  between  the  parties,  the  offence  of cheating punishable  under Section  420  of  Indian  Penal Code  is not made

out.

Learned counsel for the petitioners further submit that there is absolutely  no allegation of any  entrustment of any property to either of the petitioners and  in the  absence of  the  same  and  further in  the  absence of any dishonest misappropriation of the entrusted property, the offence punishable under Section 406 of the Indian Penal  Code is not made out against the petitioners.

Learned counsel for the petitioners then submit that there is absolutely no allegation against the petitioners of by dishonest or fraudulent manner making any person deceived to part with any property and in the absence of the same, the offence punishable under Section 420 of the Indian Penal Code is not made out even with the aid of Section 34 of the Indian Penal Code and even if the entire allegations made against the petitioners are considered to be true in their 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 even with the aid of Section 34 of the Indian Penal Code is made out against the petitioners.

Learned counsel for the petitioners next submit that both the petitioners are  public servants and  no  sanction  for  prosecution has been obtained  even  though  the  alleged  occurrence  took  place  while  they  were discharging their official duties, hence, it is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.

Learned  Spl.P.P.  and  the  learned  Addl.P.P.  appearing  for  the  State as well as 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 even if the allegations made against the petitioners are considered to be true in their entirety then both the offences punishable under Section 406 as well as the Section 420 of Indian Penal Code is made out with the aid of Section 34 of the Indian Penal Code.  It  is next submitted  by the learned counsel for  the opposite  party no.2 that the allegation against the co-accused no.8-Mukhiya of having forged  the  signatures  of  the  villagers,  but  the  learned  Magistrate  has  not found  prima  facie  case  in  respect  of  any  offence  of  forgery,  but  regarding the same, the opposite party no.2 has no grievance as he has not challenged the said order. It is lastly 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 there is absolutely no allegation against the petitioners of being entrusted with any property or money and in the absence of this essential ingredient and in the absence of further essential ingredient  of  dishonest  misappropriation of  any  entrusted  property,  this Court has no hesitation in holding that even if the allegations against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.

So far as the offence punishable under Section 420 of the Indian Penal  Code  is  concerned,  there  is  no  allegation  against  the  petitioners  of deceiving anybody or making any person deceived to part with any property etc. and in the absence of the same, this Court has no hesitation in holding that even if the allegations against the petitioners are considered to be true in their entirety still  the offence punishable under Section  420  of  Indian  Penal  Code  is  not  made  out  against  the  petitioners even with the aid of Section 34 of the Indian Penal Code.

In view of the discussions made above as 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 against the petitioners, even if they entire allegations made against them are considered to be true in their entirety, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount  to  abuse  of  process  of  law  and  this  is  a fit  case  where  the  entire criminal proceeding including the order dated 24.04.2019 passed by learned Judicial Magistrate-1st Class, Dhanbad in C.P. Case No.2800 of 2018, be quashed and set aside.

Accordingly, the entire criminal proceeding including the order dated 24.04.2019 passed by learned Judicial Magistrate-1st Class, Dhanbad in C.P. Case No.2800  of 2018, is quashed and set aside qua the petitioners only.

In the result, these Criminal Miscellaneous Petitions are allowed.