Vikash Dalmia 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 Cr.P.C. with the prayer to quash the entire criminal proceeding includingthe order dated 13.02.2023 passed by the learned S.D.J.M., Madhupur in connection with PCR Case No. 322 of 2022 whereby and where under, the learned S.D.J.M., Madhupur has found prima facie case for the offence punishable under Sections 420, 406 and 467 of the Indian Penal Code inter alia against the petitioners.

Though notice has validly been served upon the opposite party no.2 but no one turns up on behalf of the opposite party no.2 in- spite of repeated calls.

The allegation against the petitioners is that the petitioners sold 4500 sq. ft. of land to the complainant for a consideration amount of Rs. 27,00,000/-. The complainant claimed that upon measurement of the said land, the area of the land sold was found to be less but it has not been mentioned upon measurement as to in fact how much less area was found in the subsequent the measurement. There is further allegations that the petitioners did not agree to give any more land nor to return the money. It is also alleged that part of the property sold to the complainant by the petitioners has subsequently been sold by the petitioners to one Shweta Kumari. To a question from Court in paragraph-six of her statement under solemn affirmation the complainant has categorically stated that she cannot say how much less land was sold to her.

On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquirywitnesses, the learned S.D.J.M., Madhupur has found prima facie case for the offence punishable under Sections 420, 406 and 467 of the Indian Penal Code and passed summoning order.

It is submitted by the learned Senior Advocate appearing for the petitioners by relying upon the judgment of the Hon'ble Supreme Court of India in the case of S.N. Vijayalakshmi & Ors. vs. State of Karnataka & Anr. reported in 2025 SCC OnLine SC 1575 that in that case, the Hon'ble Supreme Court of India has relied upon its own judgment in the case of Delhi Race Club (1940) Limited vs. State of Uttar Pradesh reported in 2024 SCC OnLine SC 2248 wherein, the Hon'ble Supreme Court of India held that same person cannot be simultaneously charged for the offence punishable under Section 406 and 420 of the Indian Penal Code with regard to one particular transaction. It is next submitted by the learned Senior Advocate appearing for the petitioners that the allegations against the petitioners are all false. Drawing attention of this Court to page no. 54 of the brief which is the copy of the sale deed executed by the petitioners in favour of the complainant, it is submitted by the learned Senior Advocate appearing for the petitioners that therein it has categorically been mentioned that the possession of the said land has been handed over to the complainant by the petitioners. It is further submitted by the learned Senior Advocate appearing for the petitioners that the land sold by the petitioners to Sweta Kumari was prior to selling of the land to the complainant but there is no common area between the land sold by the petitioners to Sweta Kumari and the land sold by the petitioners to the complainant. It is further submitted by the learned Senior Advocate appearing for the petitioners that otherwise also, the dispute between the parties is basically a civil dispute and a cloak of criminal case has been given to the same for the purpose of wreaking vengeance. It is then submitted by the learned Senior Advocate appearing for the petitioners that the case of the complainant is admittedly a vague one; as the complainant has in no uncertain manner stated that she does not know how much less land has been handed over by the petitioners to her; which she has categorically stated in paragraph no.6 of her statement on solemn affirmation before the learned Magistrate. It is further submitted by the learned Senior Advocate appearing for the petitioners that there is absolutely no allegation of creation of any false document by the petitioners and in the absence of the same, there is no rhyme or reason why the learned Magistrate to found prima facie case for the offence punishable under Section 467 of the Indian Penal Code. 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 all the offences punishable under Sections 420, 406 and 467 of the Indian Penal Code. It is, therefore, 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, it is pertinent to mention here that as has been held by the Hon'ble Supreme Court of India in the case of Dalip Kaur and 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])"

that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute the offence of cheating and similar is the legal position in respect of the offence of criminal breach of trust.

It is also 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 every breach of contract does not give rise to the 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 and if the intention to cheat has developed later on, the same willnot amount to cheating.

Now coming to the facts of the case, the only allegation against the petitioners is that the petitioners have sold less land than 4500 sq. ft. as mentioned in the sale deed but the complainant herself has categorically admitted in paragraph no.6 of her statement under solemn affirmation that she does not know how much less land has been sold to her by the petitioners. Under such circumstances, this Court has no hesitation in holding that the allegations made against the petitioners are vague one. The undisputed fact remains that the petitioners on receipt of payment of consideration has executed the sale deed. There is no allegation of playing deception since the beginning of the transaction between the parties and in the absence of this essential ingredient to constitute the offence of cheating, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out.

So far as the offence punishable under Section 467 of the Indian Penal Code is concerned, the essential ingredient to constitute the said offence is forgery and for that making a false document as mentioned in Section 464 of the Indian Penal Code is sine-qua-non. There is no allegation of making any false document against the petitioners. In the absence of the same, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 467 of the Indian Penal Code is not made out.

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence is

(i) There must be entrustment of property to the accused person.

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

Now coming to the facts of the case, it is the admitted case of the complainant that the complainant paid money to the petitioners for purchasing a land. When the money is paid for purchase of something, the money paid for that will not be entrusted property as the word 'entrusted' has been used in Section 405 of the Indian Penal Code.

Under such circumstances, in the absence of entrustment of any property to the petitioners and further in absence of any dishonest misappropriation of any entrusted property etc., 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 406 of the Indian Penal Code is not made out.

In view of the discussions made above, as none of the offences in respect of which learned S.D.J.M., Madhupurhas found prima facie case is made out against the petitioners even if the entire allegations made against the petitioners are considered to be true in its entirety, therefore, this Court is of the considered view that 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 including the order dated 13.02.2023 passed by the learned S.D.J.M., Madhupur in connection with PCR Case No. 322 of 2022 be quashed and set aside qua the petitioners.

Accordingly, the entire criminal proceeding including the order dated 13.02.2023 passed by the learned S.D.J.M., Madhupur in connection with PCR Case No. 322 of 2022 is quashed and set aside qua the petitioners.

In the result, this criminal miscellaneous petition is allowed.

In view of the disposal of this criminal miscellaneous petition, interlocutoryapplications, if any, is disposed of being infructuous.