[Cites 11, Cited by 0]
Jharkhand High Court
Vikash Dalmia vs The State Of Jharkhand on 29 January, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2026:JHHC:2274)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3890 of 2023
1. Vikash Dalmia, aged about 48 years, son of late Jaiprakash Dalmia
2. Sharda Dalamia@ Sharda Agarwal, aged about 44 years, wife of
Hitesh Agrawal
Both are residents of Mohalla-Kalimanda Road, Madhupur, P.O. &
P.S.-Madhupur, Sub-Division-Madhupur, Dist.-Deoghar, Jharkhand
.... Petitioners
Versus
1. The State of Jharkhand
2. Jubera Khatoon, wife of Tajmmul Khan, resident of near Tilaiyatand
Carmel School, P.O. & P.S. & Subdivison-Madhupur, Dist.-
Deoghar, Jharkhand
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Anil Kumar, Sr. Advocate
: Ms. Chandana Kumari, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For O.P. No.2 : None
.....
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 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 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.
(2026:JHHC:2274)
3. 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.
4. 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.
5. 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., 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.
6. 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
(2026:JHHC:2274)
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
(2026:JHHC:2274)
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.
7. 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.
8. 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 &
(2026:JHHC:2274)
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.
9. 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)
(2026:JHHC:2274)
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 will not amount to cheating.
10. 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.
11. 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
(2026:JHHC:2274)
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.
12. 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.
13. 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.
14. 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
(2026:JHHC:2274)
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.
15. In view of the discussions made above, as none of the offences in
respect of which learned S.D.J.M., Madhupur has 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.
16. 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.
17. In the result, this criminal miscellaneous petition is allowed.
18. In view of the disposal of this criminal miscellaneous petition,
interlocutory applications, if any, is disposed of being infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 29th January, 2026
AFR/Sonu-Gunjan/-
Uploaded on 30/01/2026
