Jharkhand High Court
Dr. Abhijeet Mukherjee vs The State Of Jharkhand on 21 July, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
( 2025:JHHC:19875)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1409 of 2023
Dr. Abhijeet Mukherjee, s/o late Sisir Mukherjee, aged about 50 years,
r/o Kalyani, P.O. & P.S.-Kalyani, Dist.-Nadia (West Bengal)
.... Petitioner
Versus
1. The State of Jharkhand
2. Krishna Kumar, s/o Sri Ram Suhawan Singh, aged about 63 years,
r/o Anjalika Apartment, East Jail Road, Tara Babu Lane, P.O.-
G.P.O., P.S.-Lower Bazar & Dist.-Ranchi
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Sidhartha Roy, Advocate
For the State : Mrs. Vandana Bharti, Addl. P.P.
For O.P. No.2 : Mr. Hemant Kr. Shikarwar, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 of Cr.P.C. with a
prayer to quash the entire criminal proceeding including the order
dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in
connection with Complaint Case No. 763 of 2021 whereby and
where under, the learned S.D.J.M., Ranchi has found prima facie
case of the offences punishable under Sections 406/420/34 of the
Indian Penal Code and directed for issuance of summons inter alia
against the petitioner.
3. The brief fact of the case is that the co-accused-Ashish Kumar
Mandal is a confidant of the petitioner and on behalf of the
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petitioner, Ashish Kumar Mandal took Rs.2,00,000/- from the
informant as advance to sell the land belonging to the petitioner
and paid only Rs.1,00,000/- to the petitioner but during
subsistence of the oral agreement for sale, the petitioner sold the
land concerned to a third party.
4. On the basis of the complaint, statement of the complainant on
solemn affirmation and the statement of the inquiry witnesses, the
learned S.D.J.M., Ranchi has passed the order dated 18.12.2021.
5. It is submitted by the learned counsel for the petitioner that in
paragraph no.5 of the complaint, the complainant has
categorically admitted that there has not been any conversation or
exchange of information directly between the complainant and the
petitioner as the co-accused- Ashish Kumar Mandal admittedly
talked only to the mother of the petitioner as the petitioner was
not at his home, when the complainant and others along with the
co-accused person visited the house of the petitioner at Phusro. It
is next 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 Radheshyam & Ors. vs. State of Rajasthan & Anr.
in Criminal Appeal No. 3020 of 2024 arising out of Special Leave
to Petition (Crl.) No. 13675 of 2023 dated 22.07.2024, paragraph
nos. 6 and 12 of which reads as under:-
"6. As already indicated above, a perusal of the complaint
which has been registered as the FIR does not spell out
any element or ingredient of cheating or breach of trust.
Mere non-performance of an Agreement to Sell by itself
does not amount to cheating and breach of trust.
Respondent no.2 has adequate remedy of filing a Civil
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Suit for relief of specific performance of a contract which
he has already availed and the suit is still pending. The
FIR only appears to be an arm-twisting mechanism to
pressurise the appellants to execute the Sale Deed or to
extract money. Every civil wrong cannot be converted
into a criminal wrong. As we find in the present case,
respondent no.2 is trying to abuse the criminal machinery
for ulterior motives. It is not his case that the appellants
duped him to pay the advance amount and entered into an
Agreement to Sell. The High Court fell in error in
recording a finding that the ingredients of offences under
sections 420 and 406 of IPC are present in the instant
case.
12. In the present case, the appellants were not
entrusted with any property by respondent no.2 -
complainant. The only delivery made was of part payment
towards an Agreement to Sell between the parties. The
amount paid towards consideration cannot be said to have
been entrusted with the appellants by respondent no. 2.
Additionally, merely because the appellants are refusing
to register the sale, it does not amount to
misappropriation of the advance payment. Since there was
no entrustment of property, the offence of
misappropriation of such property and thereby criminal
breach of trust cannot be said to be made out." (Emphasis
supplied)
that it being a settled principle of law that mere non-
performance of an agreement to sell by itself does not amount to
cheating, so the offence punishable under Section 420 of Indian
Penal Code is not made out.
6. It is then submitted by the learned counsel for the petitioner that
admittedly the complainant has not paid any amount directly to
the petitioner and the complainant paid only Rs.2,00,000/- to
Ashish Kumar Mandal out of which Ashish Kumar Mandal
allegedly paid Rs.1,00,000/- to the petitioner but the petitioner
returned back the said money to Ashish Kumar Mandal after he
decided to sell the property to a different person. It is next
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submitted by the learned counsel for the petitioner that assuming
for the sake of argument that the petitioner has received some
money as advance consideration amount but it being a settled
principle of law that the amount paid towards consideration
cannot be said to have been an entrustment of property, the
offence punishable under Section 406 of Indian Penal Code is not
made out. It is further submitted by the learned counsel for the
petitioner that as neither the offence punishable under Section 420
nor the offence punishable under Section 406 of Indian Penal
Code is made out even with the aid of Section 34 of Indian Penal
Code. Therefore, continuation of the criminal proceeding against
the petitioner will amount to abuse of process of law. It is lastly
submitted that the prayer as made in this criminal miscellaneous
petition be allowed.
7. The learned Additional Public Prosecutor and the learned
counsel for the opposite party no.2 on the other hand vehemently
oppose the prayer as made in this criminal miscellaneous petition
and submits that both the offences punishable under Sections 420
and 406 of the Indian Penal Code is made out against the
petitioner basing upon the facts alleged in the complaint,
statement of the complainant on solemn affirmation and the
statement of the inquiry witnesses. Hence, it is submitted that this
criminal miscellaneous petition being without any merit be
dismissed.
( 2025:JHHC:19875)
8. Having heard the submissions made at the Bar and after going
through the materials available in the record, this Court finds that
the allegation against the petitioner is that the petitioner did not
perform his part under an agreement to sell. Admittedly, there is
no written document regarding agreement for sale, admittedly,
the complainant did not entrust any money to the petitioner
directly and admittedly, the complainant did not have any
conversation or exchange of offer or acceptance of the offer with
the petitioner in connection with the property to be sold;
belonging to the petitioner to the complainant.
9. Under such circumstances, keeping in view the settled principle
of law that mere non-performance of agreement to sell by itself
does not amount to the offence of cheating and breach of trust,
this Court has no hesitation in holding that even if the entire
allegations made against the petitioner are considered to be true
in its entirety, still the offence punishable under Section 420 of
Indian Penal Code is not made out.
10. So far as the offence punishable under Section 406 of Indian
Penal Code is concerned, it is a settled principle of law that
amount paid towards consideration cannot be said to be an
entrustment.
11. Now in this case, there is no entrustment directly to the
petitioner made by the complainant. The complainant admits
having paid the consideration amount to the co-accused- Ashish
Kumar Mandal.
( 2025:JHHC:19875)
12. Under such circumstances, in the absence of any entrustment,
the question of dishonest misappropriation of the same by the
petitioner does not arise. Hence, this Court has no hesitation in
holding that even if the entire allegations made against the
petitioner are considered to be true in its entirety, still the offence
punishable under Section 406 of Indian Penal Code is also not
made out against the petitioner.
13. There is no material in the record to suggest that the petitioner
has committed any act, deed or thing in furtherance of common
intention with the co-accused person-Ashish Kumar Mandal.
Therefore, this Court is of the considered view that the
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 dated 18.12.2021
passed by the learned S.D.J.M., Ranchi in connection with
Complaint Case No. 763 of 2021 be quashed and set aside qua the
petitioner only.
14. Accordingly, the entire criminal proceeding including the order
dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in
connection with Complaint Case No. 763 of 2021 is quashed and
set aside qua the petitioner only.
15. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st July, 2025
AFR/Sonu-Gunjan/-
