Reena Lata @ Rina Lata vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

Though  the  opposite  party  no.2  has  put  in  appearance  through his  lawyer but  no one turns up on behalf  of the opposite party no.2 in-spite of repeated calls.

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/set aside the entire criminal proceeding including the order taking cognizance dated 12.08.2022 passed by the learned Judicial Magistrate 1st Class, Chatra in connection with Complaint  Case  No.  592  of  2020,  whereby  and  where  under,  the learned Judicial Magistrate  1st Class, Chatra has found prima facie case for the offence punishable under Section 420 of the Indian Penal Code against the petitioner.

The allegation against the petitioner is that the petitioner took a loan of Rs.5,00,000/- from the complainant with the promise to return the same within six months but did not repay the said amount and issued cheques for the purpose of security but the cheques on being presented by the complainant, in his bank account for payment, were dishonoured. The complainant filed two complaint cases but there was mediation consequent upon which the complainant withdrew the said cases but the petitioner did not honour the terms and condition of the mediation.

On  the  basis  of  the  complaint,  statement  of  the  complainant  on solemn  affirmation  and  the  statement  of  the  inquiry  witness,  the learned Judicial Magistrate 1st Class, Chatra has found prima facie case for the offence punishable under Section 420 of the Indian Penal Code.

It is submitted by the learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Arshad Neyaz Khan vs. State of Jharkhand & Anr. reported in 2025(4) JBCJ 120 [SC] that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law that  in  establishing  the  offence  of  cheating  the  complainant  was required to show that accused person had a fraudulent and dishonest intention at the time of making the promise or representation for not fulfilling the agreement for sale of the property.  Leaned  counsel  for  the  petitioner  next  relied  upon  the judgment of this Court in the case of Saloni Salvi vs. State of Jharkhand  & Anr.  reported  in  2025  (4)  JBCJ  487  [HC], wherein, 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,  paragraph no.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 the breach of contract on the part of the accused person by not refunding the amount of advance, the same wouldnot constitute the offence of cheating.

Learned counsel for the petitioner next relies upon the judgment of a coordinate Bench of this Court in the case of Hitesh Kumar R Jain @  Hitesh Jain vs. The State of Jharkhand & Anr. reported in 2019:JHHC:39269  and  submits  that  therein,  the  coordinate  Bench of this Court relied upon the judgment in the case of Sudhir Kumar  Bhalla  vs. Jagdish  Chand reported  in (2008)  7 SCC 137 wherein,  it  was  held  that  criminal  liability  by  the  accused  under the provisions of Section 138 of the Negotiable Instruments Act are attracted only on account of dishonour of cheque issued in discharge of liability  or debt but not when they were issued as a security. It is further submitted by the learned counsel for the petitioner that as admittedly the cheques were issued by the petitioner as security so no offence is made out. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

The  learned  Addl.  P.P.  on  the  other  hand  vehemently  opposes the prayer and submits that the materials in the record are sufficient to constitute the offence punishable under Section 420 of the Indian Penal  Code. Hence,  it  is submitted that this criminal miscellaneous petition being withoutany merit be dismissed.

Having  heard  the  submissions  made  at  the  Bar  and  after  going through the materials 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 Satish Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148, paragraph no. 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.”

that mere inability of the accused 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.

Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner took a  loan which she did not repay and though she handed certain cheques for the purpose of security, the same were also dishonoured.

It is also a settled principle of law that in order to constitute the offence of cheating, the accused person must have played deception since the very inception as has been held by 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 :-

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)

Now coming to the facts of the case, there is absolutely no allegation against the petitioner of playing deception since the very  inception and in the absence of  this essential  ingredient  to constitute  the  offence  of  cheating,  this  Court  is  of  the  considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out.

In view of the discussions made above, this Court has no hesitation in holding that since the offence punishable under Section 420 of  the Indian Penal Code is  not made out  even if the entire allegations made against the petitioner are considered to be true in their entirety therefore, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and  this  is a  fit case  where the  entire criminal  proceeding including the order taking cognizance dated 12.08.2022 passed by the learned Judicial Magistrate 1st Class, Chatra in connection with Complaint Case No. 592 of 2020 be quashed and set aside qua the petitioner only.

Accordingly, the entire criminal proceeding including the order taking cognizance dated 12.08.2022 passed by the learned Judicial Magistrate 1st Class, Chatra in connection with Complaint Case No. 592 of 2020 is quashed and set aside qua the petitioner only.

In the result, this criminal miscellaneous petition is allowed.