Shah Faisal Equbal 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 528 of B.N.S.S., 2023 with the prayer to quash the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No. 557 of 2025 registered for the offence punishable under Sections 316(2) and 318(2) of the Bharatiya Nyaya Sanhita, pending in the court of learned Chief Judicial Magistrate, Deoghar.

The brief fact of the case is that the father of the petitioner nos.1 and 2, who is also the husband of the petitioner no.3 along with three other persons took Rs.1,31,250/- from the informant for selling their land but since there was a suit pending in respect of the property to be sold and there was an injunction order, the father of the petitioner nos.1 and 2 and other persons could not sell the said land to the informant but the petitioners are not executing the sale deed, the money in respect of which has been taken by their predecessor-in-interest.

It is submitted by the learned counsel for the petitioners that the allegations against the petitioners are all false. It is next submitted by the learned counsel for the petitioners that there is no allegation of entrustment of any money to the petitioners nor there is any allegation against any of the petitioners of playing deception since the beginning of the transaction between the parties and in the absence of the same, neither the offence punishable under Section 316(2) of the Bharatiya Nyaya Sanhita nor the offence punishable under Section 318(2) of the Bharatiya Nyaya Sanhita is made out against any of the petitioners. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

The learned Spl. P.P. on the other hand vehemently opposes the prayer and submits that in view of the allegations made both the offences in respect of which FIR has been registered is made out against the petitioners; therefore, at this nascent stage, the same ought not to be quashed. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials available in the record, so far as the offence punishable under Section 316(2) of the Bharatiya Nyaya Sanhita is concerned, the essential ingredients to constitute the said offence are:-

(i) There must be an entrustment and,

(ii) there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract.

as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641 of course in relation to the offence punishable under section 406 of the Indian penal code which corresponds to this section.

Now coming to the facts of the case and admittedly, the entrustment is to the predecessor-in-interest of the petitioners who is already dead. There is no allegation of any entrustment to the petitioners nor there is any allegation of any misappropriation of any entrusted property by the petitioners.

Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 316(2) of the Bharatiya Nyaya Sanhita is not made out.

So far as the offence punishable under Section 318(2) of the Bharatiya Nyaya Sanhita is concerned, it is a settled principle of law 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:-

“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)

that in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties. If the intention to deceive has developed later on, the same will not amount to cheating.

Now coming to the facts of the case, the deception, if any, is alleged against the predecessor-in-interest of the petitioners who has since dead. There is no allegation against the petitioners of playing any role at the time of initial transaction between the informant and the predecessor-in-interest of the petitioners as well as others.

Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the same is insufficient to constitute the offence punishable under Section 318(2) of the Bharatiya Nyaya Sanhita.

In view of the discussions made above, since neither of the offence in respect of which FIR has been registered is made out against the petitioners hence, continuation of the criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No. 557 of 2025 be quashed and set aside qua the petitioners.

Accordingly, the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No. 557 of 2025 is quashed and set aside qua the petitioners.

In the result, this criminal miscellaneous petition is allowed.