Jharkhand High Court
Mohan Kishore Mishra vs The State Of Jharkhand on 3 November, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
( 2025:JHHC:32874 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.167 of 2025
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Mohan Kishore Mishra, aged about 78 years, son of Badrinath
Mishra, Resident of Muraitha, P.O. & P.S.-Muraitha, Kamtol, Dist.-
Darbhanga, State-Bihar, presently residing at C/o-G.K.F.
Choudhary, Advocate, Civil Court, Dhanbad, Resident of
A.T.L.R.D.C. Office, P.O. & P.S.-Dhanbad, Dist.-Dhanbad, State-
Jharkhand.
... Petitioner
Versus
1. The State of Jharkhand
2. Mritunjay Hazari, son of Late Nageswar Hazari, Resident of Dade,
P.O. & P.S.-Poraiyahat, Dist.-Godda.
... Opposite Parties
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For the Petitioner : Ms. Abha Verma, Advocate
For the State : Mr. Subodh Kr. Dubey, Addl.P.P.
For the O.P. No.2 : Mr. Alok Kr. Dubey, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with the
prayer to quash and set aside the order dated 03.04.2024 passed by
learned S.D.J.M., Godda in Complaint Case No.434 of 2023 whereby and
where under the learned S.D.J.M., Godda has found prima facie case for
the offences punishable under Sections 406 of the Indian Penal Code
against the petitioner as well as the order dated 27.09.2024/22.11.2024
( 2025:JHHC:32874 )
passed by the learned J.M.-1st Class, Godda whereby and whereunder the
non-bailable warrant of arrest has been issued against the petitioner.
3. The brief fact of the case is that the petitioner took money from the
complainant and issued two separate cheques of Rs.85,000/- and
Rs.2,75,000/- in discharge of his debt, but on being presented in the bank
by the complainant both the cheques were dishonored. The complainant
demanded the cheque amount and issued notice through the Advocate
but still the petitioner did not pay the said amount, hence, the
complainant filed this complaint case.
4. On the basis of complaint, statement on solemn affirmation of the
complainant and the statement of enquiry witnesses, the learned
Magistrate found prima facie case for the offences punishable under
Sections 406 of the Indian Penal Code against the petitioner.
5. Learned counsel for the petitioner submits that the allegation
against the petitioner is false even though the entire allegations made
against the petitioner are considered to be true in their entirety, still the
offence punishable under Section 406 of the Indian Penal Code is not
made out. It is next submitted that the complainant has filed this false
case for wrecking vengeance; by taking advantage of the old age of the
petitioner, who is 78 years of age. It is next submitted that the case is at
the stage of appearance, hence, it is submitted that the prayer as prayed
for in this Cr.M.P., be allowed.
6. Learned Addl.P.P. appearing for the State and the learned Amicus
Curiae on the other hand vehemently oppose the prayer of the petitioner
( 2025:JHHC:32874 )
made in the instant Cr.M.P and learned Amicus Curiae submits that the
ingredients of the offence punishable under Section 406 of the Indian
Penal Code is made out or not is the subject matter of trial. Therefore, it is
submitted that this Cr.M.P., being without any merit, be dismissed.
7. 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 it is a settled principle of law 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; as it is mens rea which is
the crux of the offence, as has been observed 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 nos.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." (Emphasis supplied)
( 2025:JHHC:32874 )
8. So far as the offence punishable under Section 406 of the Indian
Penal Code is concerned, the same provides punishment inter alia for
dishonest misappropriation by using the same to one's own use or using
it in violation of legal direction or any legal contract. As per the Black's
Law Dictionary the word 'entrust' means to give a person the
responsibility for something usually after establishing a confidential
relationship, so in a friendly loan there is no ingredient of entrustment
and there cannot be any intention of misappropriation or misuse of the
money entrusted to the accused more so when admittedly, the accused
issued cheques in lieu of the friendly loan taken for repayment of the
same albeit the cheques were subsequently dishonored; the same rules of
the case of entrustment or its dishonest misappropriation.
9. Under such circumstances, this Court has no hesitation in holding
that in the absence of any material to suggest that the petitioner has
committed any dishonest misappropriation of any entrusted property, the
offence punishable under Section 406 of the Indian Penal Code is not
made out. Therefore, the continuation of this criminal proceeding against
the petitioner will amount to abuse of process of law and this is a fit case
where the order dated 03.04.2024 passed by learned S.D.J.M., Godda in
Complaint Case No.434 of 2023, be quashed and set aside.
10. Accordingly, the order dated 03.04.2024 passed by learned S.D.J.M.,
Godda in Complaint Case No.434 of 2023 and other consequential reliefs,
is quashed and set aside qua the petitioner only.
11. In the result, this Cr.M.P., stands allowed.
( 2025:JHHC:32874 )
12. Before parting this Court records, the appreciation for the assistance
rendered by the learned Amicus Curiae who has been appointed by the
predecessor Judge in the roster consequent upon the opposite party no.2
not appearing despite valid service of notice.
13. The Secretary, High Court Legal Services Authority is directed to
pay Rs.7,000/- (Seven Thousand) to Mr. Alok Kumar Dubey, Advocate on
production of the web copy of this judgment.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 03rd of November, 2025
AFR/ Abhiraj
Uploaded on 06/11/2025
