Patna High Court
Rina Mishra And Anr vs State Of Bihar And Anr on 8 April, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.42370 of 2015
Arising Out of PS. Case No.-9955 Year-2014 Thana- MADHUBANI COMPLAINT CASE
District- Madhubani
======================================================
1. Rina Mishra, Wife of Dr. Rudra Nand Mishra
2. Dr. Rudra Nand Mishra, Son of Late Vachaspati Mishra, Both Resident of
Patliputra Medical College, P.S.- Saraidhela, District Dhanbad.
... ... Petitioner/s
Versus
1. State of Bihar
2. Manoj Kumar Jha, Son of Sri Ram Sunder Jha, Resident of Mohalla-
Suratganj Ward No.17, P.S.- Town, District- Madhubani.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ravi Ranjan, Advocate
For the State : Mr. Suresh Prasad Singh, APP
For the O.P. No.2 : Mr. Amalendu Shekhar Thakur, Advocate
Mr. Ram Prawesh Kumar, Advocate
Mr. Shivendu Harihar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 08-04-2025
Heard Mr. Ajay Kumar Thakur, learned counsel for the
petitioners, Mr. Amalendu Shekhar Thakur, learned counsel for
the O.P. No. 2 and Mr. Suresh Prasad Singh, learned APP for the
State.
2. The present petition has been filed under Section 482
of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.')
against the order dated 07.07.2015 passed by the court of learned
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
2/8
Chief Judicial Magistrate, Madhubani in Trial No. 1191/2015
arising out of Complaint Case No. 9955/2014/1516/2014 by which
the learned Magistrate has formed the opinion that a prima facie
case for the offence under Section 420 of the Indian Penal Code
(in short 'IPC') is made out against the petitioners and
accordingly, the learned Magistrate has directed the summons to
be issued against the petitioners for the said offence.
3. Mr. Ajay Kumar Thakur, learned counsel appearing
for the petitioners submits that no offence under Section 420 of the
IPC is made out against the petitioners even if all the statements
made in the complaint filed by the O.P. No. 2 are taken to be true
as admittedly, the land and house mentioned in the complaint of
O.P. No. 2, are an ancestral property of the petitioner no. 2 and the
complainant (O.P. No. 2) is a relative of the petitioners.
Admittedly, the O.P. No. 2 was residing in the house of the
petitioners as a tenant during the relevant period and there was
good relation in between them at that time and on several
occasions, the O.P. advanced the money to the petitioner no. 2 but
that amount was repaid to him and the repayment of Rs.
29,61,000/- (Rupees Twenty Nine Lakh and Sixty One Thousand)
has been accepted by the complainant in his complaint. When the
elder brother of petitioner no. 2 became very old and needed the
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
3/8
building rented to the O.P. No.2, the petitioners requested the
complainant to vacate their house and only thereafter, with due
deliberation O.P. No.2 lodged a false case by filing a complaint. It
is further submitted that the allegations made by the O.P. No. 2 in
his complaint mainly attract a civil wrong on the part of the
petitioners if the complainant's story is believed and it is settled
position of law that the breach of the terms of a contract will not
constitute a criminal offence until and unless it is shown that the
defaulter has an intention to cheat the other party from very
inception of the transaction and in the present matter, the
averments made in the complaint do not show any dishonest
intention being on the part of the petitioners from the very
beginning of the alleged transactions. In support of these
submissions, learned counsel has placed reliance upon the
following judgments of the Hon'ble Apex Court:-
(i) Dalip Kaur and Others vs. Jagnar Singh and
Another reported in (2009) 14 SCC 696 and the relevant
paragraph no. 10 of this judgment upon which reliance has been
placed is being reproduced 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
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
4/8
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] )"
(ii) Murari Lal Gupta vs. Gopi Singh reported in
(2005) 13 SCC 699 and the relevant paragraph no. 6 of this
judgment upon which reliance has been placed is being reproduced
as under:-
"6. We have perused the pleadings of
the parties, the complaint and the orders of the
learned Magistrate and the Sessions Judge.
Having taken into consideration all the material
made available on record by the parties and after
hearing the learned counsel for the parties, we
are satisfied that the criminal proceedings
initiated by the respondent against the petitioner
are wholly unwarranted. The complaint is an
abuse of the process of the court and the
proceedings are, therefore, liable to be quashed.
Even if all the averments made in the complaint
are taken to be correct, yet the case for
prosecution under Section 420 or Section 406 of
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
5/8
the Penal Code is not made out. The complaint
does not make any averment so as to infer any
fraudulent or dishonest inducement having been
made by the petitioner pursuant to which the
respondent parted with the money. It is not the
case of the respondent that the petitioner does
not have the property or that the petitioner was
not competent to enter into an agreement to sell
or could not have transferred title in the property
to the respondent. Merely because an agreement
to sell was entered into which agreement the
petitioner failed to honour, it cannot be said that
the petitioner has cheated the respondent. No
case for prosecution under Section 420 or
Section 406 IPC is made out even prima facie.
The complaint filed by the respondent and that
too at Madhepura against the petitioner, who is a
resident of Delhi, seems to be an attempt to
pressurise the petitioner for coming to terms
with the respondent."
4. On the other hand, Mr. Amalendu Shekhar Thakur,
learned counsel appearing for the O.P. No. 2 has vehemently
opposed this petition and he submits that the alleged offence of
cheating is clearly attracted against the petitioners as at various
stages, the petitioner no. 2 accepted the factum of an agreement to
sale an immovable property in question in favour of the O.P. No. 2
and it is also an admitted position that a sum of Rs. 29,61,000/-
was transferred by the O.P. No. 2 in the account of the petitioner
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
6/8
no. 2, though, the said amount was later returned by the petitioners
but the rest amount of Rs. 15,00,000/- (Rupees Fifteen Lakhs)
which had been given in cash by the O.P. No. 2 to the petitioner
no. 2, was not returned back and thus the O.P. was cheated by the
petitioners in the name of transferring their house and the
petitioners had a dishonest intention to cheat the O.P. No. 2 from
the very beginning.
5. Heard both the sides and perused the order impugned
and the relevant materials. From the averments made by the O.P.
No. 2 in his complaint, mere a civil wrong on the part of the
petitioners may attract even if the entire story narrated by the O.P.
No. 2 is believed to be true as the petitioner no. 2 and O.P. No. 2
are relatives and admittedly, during the relevant period, the O.P.
No. 2 was residing in the house of the petitioner no. 2 as a tenant
and as per the complaint, an agreement for sale of the house of the
petitioner no. 2 in favour of the O.P. No.2 was made by both the
sides and in this regard, a part of the fixed consideration amount,
Rs. 29,61,000/- was also paid by the O.P. No. 2 to the petitioners
but the same was admittedly repaid by the petitioners to the O.P.
No. 2, so, these facts do not show a dishonest intention on the part
of the petitioners from the beginning of the alleged transaction if
the story of the O.P. No. 2 is believed. Furthermore, a Suit for
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
7/8
specific performance of contract has been filed by the O.P. No. 2
in relation to the alleged agreement which has been admitted by
learned counsel appearing for the O.P. No.2 during the course of
argument. This court is of the view that the criminal proceeding
initiated by O.P. No. 2 by filing the complaint, is wholly un-
warranted as it is not the case of the O.P. No. 2 that the petitioners
do not have any title or right in the property in question or they
were not competent to enter into an agreement for sale of the said
property or could not have transferred the title in the said property
to the O.P. No. 2, so, merely because the alleged agreement for
sale did not result into transferring of the alleged property by way
of sale, it cannot be said that the petitioners have cheated the O.P.
No. 2, so, the offence under Section 420 of IPC does not even
prima facie attract against the petitioners. As such, this Court finds
substance in the aforesaid grounds taken by the petitioners and is
of the view that the order impugned has been passed in mechanical
manner by the learned Magistrate without applying his judicial
mind and subjecting the petitioners to trial for the alleged offence
will be complete harassment to them and also an abuse of the
process of court, so, the order impugned as well as all the further
proceedings, if any, having arisen against the petitioners in the
Patna High Court CR. MISC. No.42370 of 2015 dt.08-04-2025
8/8
light of the order impugned passed in Complaint Case No.
9955/2014/1516/2014
are quashed.
6. In the result, the instant Criminal Miscellaneous
Petition stands allowed.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16.04.2025
Transmission Date 16.04.2025
