Patna High Court
Soma Rani Singha @ Soma Rani Mondal @ Soma ... vs The State Of Bihar on 9 September, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.27292 of 2025
Arising Out of PS. Case No.-8 Year-2014 Thana- KISHANGANJ District- Kishanganj
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Soma Rani Singha @ Soma Rani Mondal @ Soma Rani Singh W/O Swapan
Kumar Mondal R/O B/4/1/H/6 Rani Rashmoni Garden Lane, VTC Tangra,
P.S.- Tangra, Distt.- Kolkata, West Bengal.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ramanand Sah S/O Bhular Sah R/O Ghormara, P.O- Chakla Ghat, P.S.-
Kishanganj, Distt.- Kishanganj.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Shekhar Harshvardhan, Advocate
For the Opposite Party/s : Dr. Indiwar Kumari, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 09-09-2025
Heard Mr. Shekhar Harshvardhan, learned counsel
appearing on behalf of the petitioner and Dr. Indiwar Kumari,
learned A.P.P. for the State.
2. The petitioner has sought quashing of the order
of proclamation under Section 82 of the Code of Criminal
Procedure (Section 84 of the Bharatiya Nagarik Suraksha
Sanhita) in Kishanganj P.S. Case No. 08 of 2014 arising out of
Complaint Case No. 1332 of 2013, passed by learned Chief
Judicial Magistrate, Kishanganj on 10.07.2023, whereby and
were under, learned Chief Judicial Magistrate has taken
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
2/12
cognizance of offence under Sections 420, 406 and 120(B) of
the Indian Penal Code and Bihar Protection of Interests of
Depositors (in Financial Establishments) Act, 2002 on
29.06.2016
, thereafter, petitioner was summoned and without
service report of summon, non-bailable warrant, as well as,
process under Section 82 of the Code of Criminal Procedure has
been issued.
3. As per the prosecution case, the petitioner along
with other accused persons, with a common intention, had
collected a sum of Rs. 50,00,000/- (Fifty Lakhs) from the
opposite party no. 2 and had deposited the same into the State
Bank of India, Kishanganj Branch having bank account no.
10825783217 standing in the name of co-accused Subir
Mukherjee and in lieu of doubling the money upon maturity, had
deposited a sum of Rs. 25,00,000/- (Twenty Five Lakh) into the
account of Woods Pharmaceuticals Limited Company having
account no. 10302020000638 at Paschimpali Office and the said
company stands in the name of co-accused Subir Mukherjee.
4. Learned counsel appearing on behalf of the
petitioner submitted that petitioner was neither the agent of the
said company nor any amount was transferred into her account
or has manipulated with an intent to commit fraud of money
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
amounting to Rs. 75,00,000/- (Seventy Five Lakh). Petitioner
was not employed in the said company at the relevant time
when the offence was allegedly committed in the month of
February, 2011 and the subsequent commission of offence
during the period 13.08.2013 till the complaint case was
instituted. Learned counsel further submitted that the has given
information in paragraph no. 10 of the present quashing
application that the petitioner had joined as receptionist in the
month of March, 2011 and, thereafter, she got married on
07.03.2013 and had resigned in the month of May, 2013,
however, he admits that no supportive evidence has been
annexed in support of the pleading made in the present
application. Learned counsel further submitted that so far as
petitioner is concerned, no offence is made out against her as
would appear from the perusal of the complaint, which was later
on converted into FIR. Learned counsel further submitted that
principle of law is well settled that issuance of summon is a
serious matter, therefore, should not be done mechanically and it
should be done only upon satisfaction on the ground for
proceeding further in the matter against a person concerned
based on the materials collected during the inquiry.
5. Learned counsel further submitted that from the
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
information given by the petitioner, it would appear that to face
criminal prosecution for the period during which the offence
was committed, the petitioner was not serving the company, nor
any amount was transferred in her account and the same will
amount to malicious prosecution against the petitioner. No case
under Sections 420, 406 and 120(B) of the Indian Penal Code
and the Bihar Protection of Interests of Depositors (in Financial
Establishments) Act, 2002 is made out against the petitioner.
Learned counsel emphatically submitted that the learned
Magistrate, in most mechanical manner, has taken cognizance
against the petitioner. Learned counsel in this regard has placed
reliance upon a recent judgment passed by the Apex Court in the
case of Delhi Race Club (1940) Ltd. & Ors. vs. State of Uttar
Pradesh & Anr. in Criminal Appeal No. 3114 of 2024 and
contended that relying on its earlier judgment passed in Hari
Prasad Chamaria vs. Bishun Kumar Surekha & Ors. reported
in (1973) 2 SCC 823, the Apex Court in paragraphs no. 28 to 31
of the Delhi Race Club (Supra) has observed as follows:
"28. Every act of breach of trust may not
result in a penal offence of criminal breach of trust unless
there is evidence of manipulating act of fraudulent
misappropriation. An act of breach of trust involves a civil
wrong in respect of which the person may seek his remedy
for damages in civil courts but, any breach of trust with a
mens rea, gives rise to a criminal prosecution as well. It has
been held in Hari Prasad Chamaria v. Bishun Kumar
Surekha & Ors., reported in (1973) 2 SCC 823 as under:
"4. We have heard Mr. Maheshwari on
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
behalf of the appellant and are of the opinion that no case
has been made out against the respondents under Section
420 Penal Code, 1860. For the purpose of the present
appeal, we would assume that the various allegations of
fact which have been made in the complaint by the
appellant are correct. Even after making that allowance, we
find that the complaint does not disclose the commission of
any offence on the part of the respondents under Section
420 Penal Code, 1860. There is nothing in the complaint to
show that the respondents had dishonest or fraudulent
intention at the time the appellant parted with Rs. 35.000/-
There is also nothing to indicate that the respondents
induced the appellant to pay them Rs. 35,000/- by deceiving
him. It is further not the case of the appellant that a
representation was made, the respondents knew the same to
be false. The fact that the respondents subsequently did not
abide by their commitment that they would show the
appellant to be the proprietor of Drang Transport
Corporation and would also render accounts to him in the
month of December might create civil liability on the
respondents for the offence of cheating."
29. To put it in other words, the case of
cheating and dishonest intention starts with the very
inception of the transaction. But in the case of criminal
breach of trust, a person who comes into possession of the
movable property and receives it legally, but illegally
retains it or converts it to his own use against the terms of
the contract, then the question is, in a case like this,
whether the retention is with dishonest intention or not,
whether the retention involves criminal breach of trust or
only a civil liability would depend upon the facts of each
case.
30. The distinction between mere breach of
contract and the offence of criminal breach of trust and
cheating is a fine one. In case of cheating, the intention of
the accused at the time of inducement should be looked into
which may be judged by a subsequent conduct, but for this,
the subsequent conduct is not the sole test. Mere breach of
contract cannot give rise to a criminal prosecution for
cheating unless fraudulent or dishonest intention is shown
right from the beginning of the transaction i.e. the time
when the offence is said to have been committed. Therefore,
it is this intention, which is the gist of the offence. Whereas,
for the criminal breach of trust, the property must have
been entrusted to the accused or he must have dominion
over it. The property in respect of which the offence of
breach of trust has been committed must be either the
property of some person other than the accused or the
beneficial interest in or ownership' of it must be of some
other person. The accused must hold that property on trust
of such other person. Although the offence, i.e. the offence
of breach of trust and cheating involve dishonest intention,
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
yet they are mutually exclusive and different in basic
concept. There is a distinction between criminal breach of
trust and cheating. For cheating, criminal intention is
necessary at the time of making a false or misleading
representation i.e., since inception. In criminal breach of
trust, mere proof of entrustment is sufficient. Thus, in case
of criminal breach of trust, the offender is lawfully
entrusted with the property, and he dishonestly
misappropriated the same. Whereas, in case of cheating, the
offender fraudulently or dishonestly induces a person by
deceiving him to deliver any property. In such a situation,
both the offences cannot co-exist simultaneously.
31. At the most, the court of the Additional
Chief Judicial Magistrate could have issued process for the
offence punishable under Section 420 of the IPC i.e.
cheating but in any circumstances no case of criminal
breach of trust is made out. The reason being that
indisputably there is no entrustment of any property in the
case at hand. It is not even the case of the complainant that
any property was lawfully entrusted to the appellants and
that the same has been dishonestly misappropriated. The
case of the complainant is plain and simple. He says that
the price of the goods sold by him has not been paid. Once
there is a sale, Section 406 of the IPC goes out of picture.
According to the complainant, the invoices raised by him
were not cleared. No case worth the name of cheating is
also made out."
6. Per contra, learned counsel appearing on behalf
of the State submitted that it will be too early to interfere with
the order taking cognizance. In course of trial, the petitioner has
every right to reproduce all the relevant documents in her favour
to get herself discharged from the offence.
7. Heard the parties.
8. Having considered the rival submissions made
on behalf of the parties, as well as, the allegations made in the
FIR and going by the information contained in paragraphs no.
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
10 to 13 of the present application, I find that petitioner has
given information in paragraph no. 10 of the present application
that she had joined the said company as a receptionist in the
month of March, 2011. She has given information in paragraph
no. 12 of the present application that she got married on
07.03.2013 and she resigned from the company in May, 2013.
Complaint was lodged on 11.11.2013, which was converted into
FIR on 04.01.2014 i.e. after her resignation.
9. In view of the information given by the
petitioner, as well as, considering the nature of job of the
petitioner, I find that the receptionist has no concern with any
business affairs of the company rather, their work is to do the
work of hospitality. At the same time, it has been alleged in the
complaint that altogether, Rs. 75,00,000/- (Rupees Seventy Five
Lakh) was transferred into the account of the company and the
beneficiary of the same being one of the directors of the
company i.e. co-accused Subir Mukherjee, I don't find that
allegation under Sections 420, 406 and 120(B) of the Indian
Penal Code and the Bihar Protection of Interests of Depositors
(in Financial Establishments) Act, 2002 is attracted against the
petitioner from bare perusal of the content of the complaint. The
order taking cognizance also don't give reference of any
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
materials collected against the petitioner in course of
investigation and it has been passed in most mechanical manner.
10. I find that the present is the one case, in which
the main allegation of committing fraud is against the company.
The petitioner is not the office bearer, therefore, question of
attributing vicarious liability to the petitioner so far as the
offence of cheating or criminal breach of trust is concerned
cannot be made out against the petitioner.
11. The Apex Court in similar circumstances, in the
case of Delhi Race Club (Supra) considering the case of Legal
Remembrancer, West Bengal v. Abani Kumar Banerji reported
in AIR 1950 Cal 437, has observed in paragraphs no. 15, 16 and
17 as follows:
"15. In Legal Remembrancer, West Bengal v.
Abani Kumar Banerji reported in AIR 1950 Cal 437, a
Division Bench of the Calcutta High Court speaking
through Justice K.C. Das Gupta (as he then was) held that
a magistrate is not bound to take cognizance of an offence
merely because a complaint is filed before him. He is
required to carefully apply his mind to the contents of the
complaint before taking cognizance of any offence alleged
therein. The relevant observations read as under:
"... As I read s. 190 of the Code of Criminal
Procedure and the subsequent sections, it seems to me to be
clear that a magistrate is not bound to take cognizance of
an offence, merely because a petition of complaint is filed
before him. Mr. Mukherji's argument is that a magistrate
cannot possibly take any action with regard to a petition of
complaint, without applying his mind to it, and taking
cognizance of the offence mentioned in the complaint
necessarily takes place, when the magistrate's mind is
applied to the petition. Consequently Mr. Mukherji argues,
whenever a magistrate takes the action, say, of issuing
search warrant or asking the police to enquire and to
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
investigate, he has taken cognizance of the case. In my
judgment, this is putting a wrong connotation on the words
"taking cognizance". What is "taking cognizance" has not
been defined in the Code of Criminal Procedure, and I have
no desire now to attempt to define it. It seems to me clear,
however, that before it can be said that any magistrate has
taken cognizance of any offence under s. 190(1)(a) of the
Code of Criminal Procedure, he must not only have applied
his mind to the contents of the petition, but he must have
done so for the purpose of proceeding in a particular way
as indicated in the subsequent provisions of this Chapter,--
proceeding under s. 200, and thereafter sending it for
enquiry and report under s.202. When the magistrate
applies his mind not for the purpose of proceeding under
the subsequent sections of this Chapter, but for taking
action of some other kind, e.g., ordering investigation under
s. 156(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of
the offence. My conclusion, therefore, is that the learned
magistrate is wrong in thinking that the Chief Presidency
Magistrate was bound to take cognizance of the case as
soon as the petition of complaint was filed." (Emphasis
supplied)
16. The aforesaid observation of the Calcutta
High Court was referred to and relied upon with approval
by this Court in its decision in R.R. Chari v. State of U.P.
reported in AIR 1951 SC 207.
17. In Tilak Nagar Industries Ltd. & Ors. v.
State of A.P. reported in (2011) 15 SCC 571, this Court held
that the power under Section 156(3) of the CrPC can be
exercised by a magistrate even before he takes cognizance
provided the complaint discloses the commission of
cognizable offences and if the complaint does not disclose
commission of cognizable offences, such an order of the
magistrate directing investigation is liable to be quashed.
The relevant observations read as under:
"11. After considering the rival submissions,
we are of the view that the contentions of Mr Luthra are
correct in view of Section 155(2) of the Code as explained
in Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] . We are of the opinion that the statutory safeguard
which is given under Section 155(2) of the Code must be
strictly followed, since they are conceived in public interest
and as a guarantee against frivolous and vexatious
investigation.
12. The order of the Magistrate dated 21-6-
2010 does not disclose that he has taken cognizance.
However, power under Section 156(3) can be exercised by
the Magistrate even before he takes cognizance provided
the complaint discloses the commission of cognizable
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
offence. Since in the instant case the complaint does not do
so, the order of the Magistrate stated above cannot be
sustained in law and is accordingly quashed."
12. Recently, the Apex Court in the case of Dinesh
Kumar Mathur vs. State of M.P. & Anr. in Criminal Appeal
No. 4915 of 2024 has reiterated the same principle and I find it
apt to reproduce paragraphs no. 11 to 13, which inter alia are as
follows:
"11. Having considered the application of
Section 197, as above, we are of the view that the
submission of the appellant bears merit and, therefore,
deserves to be accepted, for the appellant's official duty
would be in furtherance of the act and, therefore, would be
covered by wordings of Section 83 of the Adhiniyam, 1972.
There is no inkling in the slightest, apart from alleging
connivance to suggest that the appellant had played a role,
in dereliction of his duty. That apart, there are further
reasons as to why the High Court appears to have erred in
refusing to quash the subject criminal proceedings. They
are discussed in the subsequent paragraphs.
12. The ingredients of Section 420 IPC as
described in Vijay Kumar Ghai v. State of W.B.11 are:
"34. Section 420 IPC is a serious form of
cheating that includes inducement (to lead or move
someone to happen) in terms of delivery of property as well
as valuable securities. This section is also applicable to
matters where the destruction of the property is caused by
the way of cheating or inducement. Punishment for
cheating is provided under this section which may extend to
7 years and also makes the person liable to fine.
35. To establish the offence of cheating in
inducing the delivery of property, the following ingredients
need to be proved:
(i) The representation made by the person
was false.
(ii) The accused had prior knowledge that
the representation he made was false.
(iii) The accused made false representation
with dishonest intention in order to deceive the person to
whom it was made.
(iv) The act where the accused induced the
person to deliver the property or to perform or to abstain
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
from any act which the person would have not done or had
otherwise committed."
There is nothing on record to suggest, even
prima facie, that any of the above-said ingredients are met
in the case of the present appellant. No intent can be hinted
to, where the appellant had willfully, with the intent to
defraud, acted upon the allegedly forged Power of Attorney.
Neither has anything been brought in the chargesheet upon
completion of the investigation to show that the
requirements of Section 120-B have been met. Nor that the
appellant had any information or knowledge about the
subject Power of Attorney being forged. For the ingredients
of this section to be established, Bilal Hajar v. State12,
records as follows: -
"31. The expression "criminal conspiracy"
was aptly explained by this Court in E.G. Barsay v. State of
Bombay E.G. Barsay v. State of Bombay, (1962) 2 SCR 195.
The learned Judge Subba Rao, J. (as his Lordship then was
and later became CJI) speaking for the Bench in his
distinctive style of writing said :
"31. ... The gist of the offence is an
agreement to break the law. The parties to such an
agreement will be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. So too, it is
not an ingredient of the offence that all the parties should
agree to do a single illegal act. It may comprise the
commission of a number of acts."
32. Therefore, in order to constitute a
conspiracy, meeting of minds of two or more persons to do
an illegal act or an act by illegal means is a must. In other
words, it is sine qua non for invoking the plea of conspiracy
against the accused. However, it is not necessary that all
the conspirators must know each and every detail of the
conspiracy which is being hatched and nor is it necessary
to prove their active part/role in such meeting."
Sections when put into a chargesheet, cannot
be based on bald assertions of connivance, there must be a
substance which is entirely lacking in the present case.
13. If the intent is on the face of it is absent
qua one of the offences in the same transaction, it is absent
in respect of the other offence as well, viz., Section 467,
468."
13. In light of the discussion made hereinabove and
the law as held by the Hon'ble Supreme Court, the order dated
29.06.2016 taking cognizance and the entire criminal
Patna High Court CR. MISC. No.27292 of 2025 dt.09-09-2025
proceeding is hereby set-aside and quashed to the extent it
relates to the petitioner.
14. Accordingly, the present quashing application
stands disposed of.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR N.A.F.R.
CAV DATE N/A
Uploading Date 10.09.2025
Transmission Date N/A
