Jharkhand High Court

Saloni Salvi vs The State Of Jharkhand on 13 October, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                                                          ( 2025:JHHC:31503 )




IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr.M.P. No.695 of 2025
                                  ------

Saloni Salvi, aged about 63 years, Daughter of Late Prasenendu Chandra Pandey R/o Gokulpur Rajbari, Pakur, P.O.-Pakur, P.S.- Pakur (Town), Sub-division and District-Pakur (Jharkhand), PIN- 816107 at present residing at 45 Baliganj Trace, Sarat Bose Road, Post-Rasbihari, P.S.-Lake, District-Kolkata, State-West Bengal- 700029.

                                                 ...              Petitioner
                                 Versus
     1. The State of Jharkhand, and

2. Binay Kumar Sah son of Shiv Shankar Sah aged about 43 years R/o D.A.V. School Road, Gokulpur, Pakur, P.O.-Pakur, P.S.-Pakur (Town), Sub-division and District-Pakur (Jharkhand), PIN-816107.

                                                 ...            Opposite Parties
                                      ------
      For the Petitioner        : Mr. Anup Kr. Agarwal, Advocate
                                : Mr. Ashutosh Kr. Agarwal, Advocate
      For the State             : Mr. Sunil Kr. Dubey, Addl.P.P.
      For the O.P. No.2         : Mr. Om Prakash Singh, Advocate
                                       ------
                                 PRESENT
         HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY



           Heard the parties.

Learned counsel for the petitioner submits that this interlocutory application has been filed with a prayer for early hearing of the instant Cr.M.P. Since, the hearing of instant Cr.M.P. is taken up today, hence, this interlocutory application stands disposed of being infructuous.



                                       (Anil Kumar Choudhary, J.)



                                                                   ( 2025:JHHC:31503 )





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 entire criminal proceeding arising out of

Complaint Case No.319 of 2022 including the order taking cognizance

dated 10.02.2025 passed by learned Chief Judicial Magistrate, Pakur

whereby and where under the learned Chief Judicial Magistrate, Pakur

has found prima facie case for the offences punishable under Sections

420/406 of the Indian Penal Code against the petitioner.

3. The allegation against the petitioner is that the petitioner entered

into an agreement for sale with the complainant and received

Rs.15,50,000/- as advance but did not return the money nor executed the

sale deed.

4. Learned counsel for the petitioner relying upon the judgment of the

Hon'ble Supreme Court of India in the case of Uma Shankar Gopalika vs.

State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-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)

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submits that therein the Hon'ble Supreme Court of India has

reiterated the settled principle of law 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.

5. Learned counsel for the petitioner next relies upon the judgment of

the Hon'ble Supreme Court of India in the case of Binod Kumar & Others

vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18

of which reads as under:-

"18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust." (Emphasis supplied)

and submits that it has categorically been held by the Hon'ble

Supreme Court of India that to make out a case of criminal breach of

trust, it is not sufficient to show that money has been retained by the

appellants. It must also be shown that the accused person dishonestly

disposed of the same in some way or dishonestly retained the same.

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6. Learned counsel for the petitioner next relies upon the judgement

of this Court in the case of Sukhjinder Singh @ Sukhinder Singh @

Sukhjindar Singh & Others vs. The State of Jharkhand & Another

reported in 2025:JHHC:14743 and submits that in that case, this Court has

relied upon the judgment of Hon'ble Supreme Court of India in the case

of State of Punjab v. Pritam Chand reported in (2009) 16 SCC 769,

paragraph-6 of which reads as under:-

"6. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or wilfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust."

7. Learned counsel for the petitioner next relies upon the judgment of

this Court in the case of Pramod Bharat Sarawale @ Pramod Bharat

Sarwale vs. The State of Jharkhand & Another reported in

2024:JHHC:24985 and submits that in that case, this Court relied upon the

judgment of Hon'ble Supreme Court of India in the case of Satishchandra

Ratanlal Shah vs. State of Gujarat and Anr. reported in (2019) 9 SCC 148

wherein the Hon'ble Supreme Court of India has observed that 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.

8. Learned counsel for the petitioner next submits that neither the

offence punishable under Section 420 of the Indian Penal Code nor the

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Offence punishable under Section 406 of the Indian Penal Code is made

out against the petitioner; even if the entire allegations made against the

petitioner are considered to be true in their entirety, hence, it is submitted

that the prayer as prayed for in this Cr.M.P. be allowed.

9. Learned Addl.P.P. appearing for the State and the learned counsel

for the opposite party No.2 on the other hand vehemently oppose the

prayer of the petitioner made in the instant Cr.M.P and submits by relying

upon the judgement of the Hon'ble Supreme Court of India in the case of

Priti Saraf & Another vs. State (NCT of Delhi) & Another reported in

(2021) 16 SCC 142, that in para-22, of the said judgement, the Hon'ble

Supreme Court of India has reiterated the settled principle of law that to

exercise powers under Section 482 of Cr.P.C., the complaint in its entirety

shall have to be examined on the basis of the allegation made in the

complaint/FIR/charge sheet and the High Court at that stage was not

under an obligation to go into the matter or examine its correctness. It is

next submits that in para-31 of the said judgement, it was also observed

by the Hon'ble Supreme Court of India, in the facts of that case, that as the

offences under Section 406 and 420 of the IPC cannot be said to be absent

on the basis of the allegations made in the complaint/FIR/charge sheet

and simply because there is a remedy provided for breach of contract or

arbitral proceedings initiated at the instance of the accused persons, that

does not by itself clothe the court to come to a conclusion that civil

remedy is the only remedy.

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10. It is next submitted that in this case also there is direct and specific

allegation against the petitioner of having committed both the offences

punishable under Section 406 and 420 of the Indian Penal Code, hence, it

is submitted that this Cr.M.P., being without any merit, be dismissed.

11. 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 as has been

held by the Hon'ble Supreme Court of India in the case of Radheyshyam

& Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine

SC 2311, para12 of which reads as under:-

"12.xxxx 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 the amount paid towards consideration cannot be said to have

been entrusted with the accused person by the complainant and merely

because the seller is refusing to register the sale, it does not amount to

misappropriation of the advance amount paid.

12. In view of the settled principle of law, this court has no hesitation in

holding that in the absence of any allegation of entrustment or any

dishonest misappropriation of any entrusted property, even if the

allegations made against the petitioner are considered to be true in their

( 2025:JHHC:31503 )

entirety, the offence punishable under Section 406 of the Indian Penal

Code is not made out against the petitioner.

13. It is also a settled principle of law as has been held by the Hon'ble

Supreme Court of India in the case of Dalip Kaur and Others v. Jagnar

Singh and Another, reported in (2009) 14 SCC 696, para-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 a breach of contract on the part

of the accused persons by non-refunding the amount of advance the same

would not constitute an offence of cheating.

14. Now coming to the facts of the case, the only allegation against the

petitioner is that the petitioner is not refunding the amount of advance

and there is absolutely no allegation against the petitioner of playing

deception since the beginning of the transaction between the parties,

hence, in the absence of the same, the offence punishable under Section

420 of the Indian Penal Code is not made out against the petitioner; even

if the entire allegations made against him are considered to be true.

( 2025:JHHC:31503 )

15. In view of the discussion made above as neither the offence

punishable under Section 406 of the Indian Penal Code nor the offence

punishable under Section 420 of the Indian Penal Code is made out

against the petitioner, hence, this Court is of the considered view that the