[Cites 10, Cited by 0]
Jharkhand High Court
Md. Anwar @ Mo. Anwar Miya vs The State Of Jharkhand on 9 March, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2026:JHHC:6146)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2816 of 2023
Md. Anwar @ Mo. Anwar Miya, aged about 65 years, s/o late Habib
Miya @ late Mo. Habib Miya, r/o Village-Murpa, P.O.-Murpa, P.S.-
Balumath, Dist.-Latehar (Jharkhand)
.... Petitioner
Versus
1. The State of Jharkhand
2. Md. Ismalum Haque @ Islamul Haque, aged about 67 years, s/o
late Md. Habib Miya, r/o Village+ Post-Murpa, P.S.-Balumath,
Dist.-Latehar (Jharkhand), Present address Village+Post-Irba, P.S.-
Ormanjhi, Dist.-Ranchi, Jharkhand, PIN-835217
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. S.B. Gupta, Advocate
For the State : Mr. Pankaj Kr. Mishra, Addl. P.P.
For O.P. No.2 : Mr. Rohit, 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 and set aside the entire criminal proceeding
including the order dated 04.04.2019 passed by the learned
Judicial Magistrate 1st Class, Ranchi in connection with Complaint
Case No. 1223 of 2018, whereby and where under, the learned
Judicial Magistrate 1st Class, Ranchi has found prima facie case for
the petitioner having committed the offences punishable under
Sections 406 and 323 of the Indian Penal Code.
(2026:JHHC:6146)
3. It is submitted by the learned counsel for the petitioner that the
case is at the stage of evidence before charge and the next date
fixed is 13.03.2026.
4. The allegation against the petitioner is that the petitioner being
the younger brother of the complainant took Rs.2,50,000/- from
the complainant in the year 2007 promising to return the money
within some days or else he will give his land to the complainant.
There was settlement between two brothers. The petitioner also
misbehaved, abused and did marpeet (beating) with the
complainant and did not return the money.
5. On the basis of the complaint, statement of the complainant on
solemn affirmation and the statement of the inquiry witnesses, the
learned Judicial Magistrate 1st Class, Ranchi found prima facie case
for having committed the offence punishable under Sections 406
and 323 of the Indian Penal Code.
6. It is 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 Naresh Kumar & Anr. vs. The State of Karnataka &
Anr. reported in 2024 INSC 196 that in that case, the Hon'ble
Supreme Court of India relied upon its own judgment in the case
of Paramjeet Batra vs. State of Uttarakhand reported in (2013) 11
SCC 673 wherein, the Hon'ble Supreme Court of India recognized
that although the inherent powers of a High Court under Section
482 of the Code of Criminal Procedure should be exercised
sparingly, yet the High Court must not hesitate in quashing such
(2026:JHHC:6146)
criminal proceedings which are essentially of a civil nature. It is
next submitted by the learned counsel for the petitioner that in
this case, the dispute essentially is of a civil nature of non-
refunding of friendly loan hence, the same does not constitute any
offence.
7. Learned counsel for the petitioner next relied upon the judgment
of the Hon'ble Supreme Court of India in the case of
Arshad Neyaz Khan vs. State of Jharkhand & Anr. reported in
2025 INSC 1151 and submits that therein, the Hon'ble Supreme
Court of India in the facts of that case, held that where there was a
delay of nearly eight years, without any plausible reason, the fact
of the case raises a suspicion about the bona fides of the
complainant. It is next submitted by the learned counsel for the
petitioner that in that case, the Hon'ble Supreme Court of India
also relied upon the its judgment in the case of Vishal Noble
Singh vs. State of Uttar Pradesh reported in 2024 SCC OnLine
SC 1680, wherein, it was observed that in recent years the
machinery of criminal justice is being misused by certain persons
for their vested interests and for achieving their oblique motives
and agenda. Therefore, the Courts have to be very vigilant against
such tendencies and ensure that acts of omission and commission
having an adverse impact on the fabric of our society must be
nipped in the bud. It is further submitted by the learned counsel
for the petitioner that in this case, there is an inordinate delay of
11 years in filing this complaint as admittedly, the loan was taken
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in the year 2007 and the complaint case was filed in the year 2018.
It is next submitted by the learned counsel for the petitioner that
there is no allegation of causing any bodily pain, disease or
infirmity to the complainant and in the absence of that the offence
punishable under Section 323 of the Indian Penal Code is not
made out. It is then submitted by the learned counsel for the
petitioner that giving of friendly loan by one brother to another
does not amount to entrustment and in the absence of that the
offence punishable under Section 406 of the Indian Penal Code is
not made out. It is lastly submitted that 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 oppose the prayer and
submits that the materials in the record are sufficient to constitute
both the offences punishable under Section 406 of the Indian Penal
Code as well as under Section 323 of the Indian Penal Code.
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, 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 Satish
Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in
(2019) 9 SCC 148, paragraph no. 13 of which reads as under:-
(2026:JHHC:6146)
"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."
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 this mens rea which is the crux of the
offence and in paragraph no.11 thereof, it has been observed by
the Hon'ble Supreme Court of India that mere breach of a
promise, agreement or contract does not, ipso facto, constitute the
offence of the criminal breach of trust as contained in Section 405
of the Indian Penal Code without there being a clear case of
entrustment.
10. Now coming to the facts of the case, so far as the offence
punishable under Section 406 of the Indian Penal Code is
concerned, admittedly, the loan was taken by the petitioner from
the complainant in the year 2007. There is an inordinate delay of
(2026:JHHC:6146)
11 years in filing the complaint. The delay has not been suitably
explained. There is no document in respect of the loan allegedly
taken by the petitioner. There is no allegation against the
petitioner of having played deception since the very inception.
Under such circumstances, this Court is of the considered view
that even if the entire allegation made against the petitioner are
considered to be true in its entirety still the same do not inspire
confidence to constitute the offence punishable under Section 406
of the Indian Penal Code.
11. So far as the offence punishable under Section 323 of the Indian
Penal Code is concerned, there is absolutely no allegation of any
bodily pain, disease or infirmity having been caused to the
complainant. There is no allegation as to on which day, place or at
what time the occurrence took place in between these 11 years.
Under, such circumstances, this Court is of the considered view
that even if the entire allegations made against the petitioner are
considered to be true in their entirety, still, the offence punishable
under Section 323 of the Indian Penal Code is not made out.
12. In view of the discussions made above, this Court is of the
considered view that 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 04.04.2019 passed by the learned Judicial Magistrate
1st Class, Ranchi in connection with Complaint Case No. 1223 of
2018 be quashed and set aside qua the petitioner.
(2026:JHHC:6146)
13. Accordingly, the entire criminal proceeding including the order
dated 04.04.2019 passed by the learned Judicial Magistrate 1st
Class, Ranchi in connection with Complaint Case No. 1223 of 2018
is quashed and set aside qua the petitioner.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 9th March, 2026
AFR/Gunjan/-
Uploaded on 12/03/2026
