[Cites 9, Cited by 0]
Jharkhand High Court
Nageshwar Prasad Verma vs The State Of Jharkhand on 5 January, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2026:JHHC:14)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 557 of 2023
1. Nageshwar Prasad Verma, aged about 47 years, s/o Pokhan Mahto
2. Rukamini Devi, aged about 40 years, w/o Nageshwar Prasad
Verma
Both are resident of Village-Bijalibathan, P.O.-Matileda, P.S.-
Bengabad, Dist-Giridih
.... Petitioners
Versus
1. The State of Jharkhand
2. Keshar Prasad Verma, s/o Pokhan Mahto, resident of Village-
Bijalibathan, P.O.-Matileda, P.S.-Bengabad, Dist-Giridih
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Avishek Chandra, Advocate
For the State : Mr. Manoj Kr. Mishra, Addl. P.P.
For O.P. No.2 : Mr. Govind Ray Karan, 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 the
prayer to quash the order dated 27.09.2018 passed by the learned
Judicial Magistrate 1st Class, Giridih in connection with Complaint
Case No. 343 of 2018, whereby and where under, the learned
Judicial Magistrate 1st Class, Girdih has taken cognizance for the
offence punishable under Section 406, 420/34 of the Indian Penal
Code against the petitioners.
(2026:JHHC:14)
3. It is submitted by the learned counsel for the petitioners that the
case is fixed for evidence before charge and the next date is fixed
on 24.01.2026.
4. The brief fact of the case is that the petitioner no.1 is the brother
of the opposite party no.2-complainant and the petitioner no.2 is
the wife of petitioner no.1. The petitioner nos.1 and 2 were
occupying the joint property of the opposite party no.2 and
petitioner no.1. There was a panchayati where it was decided that
upon taking Rs.50,000/- to the petitioner no.1 by the opposite
party no.2, the petitioners will vacate the house and even though
the complainant paid Rs.50,000/- to the petitioner no.1, the
petitioners have not vacated the house.
5. Initially, the complainant filed Complaint Case No. 898 of 2017
which upon being referred to police under Section 156 (3) Cr.P.C.,
Bengabad P.S. Case No. 269 of 2017 was registered but police after
investigation of the case found that the dispute between the
parties is a civil dispute and did not send up the petitioners for
trial; upon which the complainant filed complaint cum protest
petition which was registered as Complaint Case No. 343 of 2018
by the learned Judicial Magistrate 1st Class, Giridih and basing
upon the same, as well as the statement of the complainant on
solemn affirmation and the statement of the inquiry witnesses, the
learned Judicial Magistrate 1st Class, Giridih has taken cognizance
of the offences punishable under Sections 406, 420/34 of the
Indian Penal Code against the petitioners.
(2026:JHHC:14)
6. Learned counsel for the petitioners relied upon the judgment of
this Court in the case of Vikash Kumar @ Bikash Kumar vs. The
State of Jharkhand & Anr. dated 09.08.2023 in Cr.M.P. No. 860 of
2018 and submits that in that case, this Court relied upon the
judgment of 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)
and therein the Hon'ble Supreme Court of India has held 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 then only the offence of cheating will be made out and if
the intention to cheat has developed later on, the same cannot
amount to cheating.
7. It is next submitted by the learned counsel for the petitioners
that in that case this Court also relied upon the judgment of the
Hon'ble Supreme Court of India in the case of Satish Chandra
Ratanlal Shah vs. State of Gujarat & Anr. reported in (2019) 9
SCC 148 and in paragraph no.11 of which the Hon'ble Supreme
(2026:JHHC:14)
Court of India has reiterated the settled principle of law that a
mere breach of a promise, agreement or contract does not, ipso
facto, constitute the offence of the criminal breach of trust
contained in Section 405 of Indian Penal Code without there being
a clear case of entrustment and submits that payment of some
money for a certain work to be done cannot be termed as
'entrusted' as the word 'entrusted' has been used in Section 405 of
the Indian Penal Code. It is further submitted by the learned
counsel for the petitioners that 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 even with the aid of Section 34 of the Indian Penal Code;
hence, the prayer as made in this criminal miscellaneous petition
be allowed.
8. The learned Addl. P.P. and the learned counsel for the opposite
party no.2 on the other hand vehemently opposes the prayer and
submits that both the offence punishable under Section 406 of the
Indian Penal Code as well as Section 420 of the Indian Penal Code
are made out if the entire allegations made against the petitioners
are considered to be true in their entirety. Hence, it is submitted
that this criminal miscellaneous petition being without any merit
be dismissed.
9. 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 420 of the Indian Penal Code is
(2026:JHHC:14)
concerned, it is a settled principle of law as has been reiterated by
the Hon'ble Supreme Court of India in the case of Uma Shankar
Gopalika vs. State of Bihar & Anr. (supra) that in order to
constitute the offence punishable under Section 420 of the Indian
Penal Code, the accused must have played deception since the
inception of the transaction between the parties. Now coming to
the facts of the case, there is no allegation against the petitioners of
playing deception since the beginning of the transaction between
the parties. In the absence of this essential ingredient to constitute
the offence punishable under section 420 of the Indian Penal
Code, this court has no hesitation in holding that even if the entire
allegations made against the petitioners are considered to be true
in their entirety stilled the offence punishable under section 420
IPC is not made out against either of the petitioners.
10. So far as the offence punishable under Section 406 of the Indian
Penal Code 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 Binod
Kumar & Others vs. State of Bihar & Another reported in (2014)
10 SCC 663 para-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
(2026:JHHC:14)
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)
that in order to constitute the offence of criminal breach of trust,
the prosecution has to establish that there has to be dishonest
misappropriation of the entrusted property.
11. Now coming to the facts of the case, the allegation against the
petitioners is that the petitioner no.1 received some money from
the complainant who is his own brother to do certain work which
he promised to do in lieu of receipt of such money and this in the
considered opinion of this Court cannot constitute 'entrusted' as
the word has been used in Section 405 of the Indian Penal Code.
12. There is no allegation against the petitioners of any dishonest
misappropriation of any entrusted property. 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
406 of the Indian Penal Code is not made out even with the aid of
Section 34 of the Indian Penal Code.
13. In view of the discussions made above, as even if the entire
allegations made against the petitioners are considered to be true
in its entirety, still neither the offence punishable under Section
406 of the Indian Penal Code nor the offence punishable under
(2026:JHHC:14)
Section 420 of the Indian Penal Code is made out against the
petitioners, therefore, continuation of the criminal proceeding
against the petitioners will amount to abuse of process of law and
this is a fit case where the order dated 27.09.2018 passed by the
learned Judicial Magistrate 1st Class, Giridih in connection with
Complaint Case No. 343 of 2018 be quashed and set aside qua the
petitioners.
14. Accordingly, the order dated 27.09.2018 passed by the learned
Judicial Magistrate 1st Class, Giridih in connection with Complaint
Case No. 343 of 2018 is quashed and set aside qua the petitioners.
15. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 5th January, 2026
AFR/Sonu-Gunjan/-
Uploaded on 06/01/2026
