Patna High Court
Nasima Khatoon And Ors vs State Of Bihar And Anr on 15 September, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.55648 of 2015
Arising Out of PS. Case No.-213 Year-2013 Thana- BAIRIYA District- West Champaran
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1. Nasima Khatoon wife of Late Raisuddin Ansari
2. Md. Sabir Ansari Son of Late Raisuddin Ansari
3. Jainul Ansari Son of Late Inayat Ansari,
All three are resident of Muhalla Noniyar Toli, Bettiah, P.S. Bettiah (T)
District- West Champaran.
4. Umarawati Devi, Wife of Nandu Sah, resident of Village - Bhitaha, P.S.
Bairiya, District - West Champaran.
... ... Petitioner/s
Versus
1. State Of Bihar
2. Sambhu Chaudhary Son of Late Bhagarasan Chaudhary resident of Village -
Bhitaha, P.S. Bairiya, District - West Champaran.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bimlesh Kumar Pandey, Advocate
For the Opposite Party/s : Mr. A.M.P. Mehta, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 15-09-2025
Heard Mr. Bimlesh Kumar Pandey, learned counsel
appearing on behalf of the petitioners and Mr. A.M.P. Mehta,
learned A.P.P. for the State.
2. The petitioners have sought quashing of the order
dated 02.04.2015 passed by learned C.J.M., Bettiah, West
Champaran in Bairiya P.S. Case No. 213 of 2013, Tr. No. 3849
of 2015, whereby and where under, the cognizance for the
offences under Sections 406 and 420 of the Indian Penal Code
was taken against the petitioners.
3. As per the allegation made in the FIR, petitioners
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
2/13
had executed sale-deed for five Katha land in favour of the
informant appertaining to Khata No. 574, Khesra No. 1025 after
payment of consideration amount of Rs. 2,96,000/-. It has been
alleged that when the informant went to take possession of the
said land, he came to learn that the said land was not in their
possession and Jamabandi was in the name of some other
person. The informant demanded his money back but the
accused persons had refused to return the money back and had
assaulted him and his son.
4. Learned counsel appearing on behalf of the
petitioners submitted that opposite party is purchaser and
petitioners no. 1 and 2 are vendor. The sale deed, which was
executed on 04.02.2012 in respect of the land appertaining to
Jamabandi No. 1033, Khata No. 574, Khesra No. 1025
measuring total area convened 5 Kathas. Petitioners have
claimed that they had claimed the said land on the basis of sale
deed dated 20.03.1991, which was executed in favour of
husband of petitioner no. 1 by one Shri Bashistha Mani Pathak,
which has been brought on record by way of 'Annexure-2' to the
application. Petitioner no. 1 is the wife of deceased, namely,
Late Raisuddin Ansari and petitioner no. 2 is the son of
deceased, namely, Late Raisuddin Ansari. Learned counsel
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further submitted that the informant had lodged the FIR on
16.08.2013
, nearly after six months and in the said FIR, there is
no reference, as to whether, the informant had approached to get
the said land mutated, whereas, he has alleged that the informant
never came into possession of the said piece of land. Learned
counsel further submitted that from bare perusal of the
allegations made in the FIR, it appears that no case under
Sections 406 and 420 of the Indian Penal Code is made out
against the petitioners. He further submitted that the FIR doesn't
disclose that the petitioners' act can be said to have
misappropriated or converted property to his own use
dishonestly, rather, by executing valid sale-deed, the petitioner
had parted with the five kathas of land. Learned counsel
submitted that breach of trust as defined under Section 405 of
the Indian Penal Code, punishable under Section 406 of the
Indian Penal code is committed by an accused, then in the same
breath, it cannot be said that the accused has also committed
offence of cheating as defined and explained under Section 416
of the Indian Penal Code, punishable under Section 420 of the
Indian Penal Code. It is the further case of the petitioner that the
informant can avail remedy before the learned District Court to
get the sale deed cancelled. In absence of availing appropriate
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
alternative remedy and considering the allegations purely civil
of nature, the entire proceeding arising out of Bairiya P.S. Case
No. 213 of 2013, Tr. No. 3849 of 2015, being vexatious is fit to
be set aside and quashed.
5. Though the informant has filed his appearance in
the present case, but, no one is present today on behalf of the
informant.
6. Learned A.P.P. appearing on behalf of the State
has vehemently opposed and submitted that the case under
Sections 406 and 420 is made out against the petitioners. The
petitioners cannot seek quashing of the entire proceeding at the
threshold.
7. Heard the parties.
8. It is well settled principle of law that the criminal
proceeding and civil proceeding can go side by side, but, if it is
shown that the criminal proceeding, which has been lodged, has
civil content then in that case, the prosecution set on the basis of
FIR or the complaint, must be interfered with. Law in this
regard is well settled by the Apex Court in the case of
Paramjeet Batra v. State of Uttarakhand reported in (2013) 11
SCC 673, in which, the Apex Court in paragraph no. 12 has
held as follows:
"12. While exercising its jurisdiction
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
under Section 482 of the Code the High Court has to
be cautious. This power is to be used sparingly and
only for the purpose of preventing abuse of the
process of any court or otherwise to secure ends of
justice. Whether a complaint discloses a criminal
offence or not depends upon the nature of facts
alleged therein. Whether essential ingredients of
criminal offence are present or not has to be judged
by the High Court. A complaint disclosing civil
transactions may also have a criminal texture. But
the High Court must see whether a dispute which is
essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil
remedy is available and is, in fact, adopted as has
happened in this case, the High Court should not
hesitate to quash the criminal proceedings to
prevent abuse of process of the court."
9. The Apex has reiterated the aforesaid preposition
in recent judgment of S.N.Vijayalakshmi & Ors. vrs. The State
of Karnataka and Anr. reported in (2025) SCC Online SC
1575.
10. The proposition of law as settled by the Apex
Court in the case of State of Haryana vs. Bhajan Lal reported
in 1992 Supp (1) SCC 335 in paragraph no. 102 has laid as
under:
"102. In the backdrop of the
interpretation of the various relevant provisions of
the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted
and reproduced above, we have given the following
categories of cases by way of illustration wherein
such power could be exercised either to prevent
abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the
first information report or the complaint, even if
they are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint and the
evidence collected in support of the same do not
disclose the commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR
do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the
FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person
can ever reach a just conclusion that there is
sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge."
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
11. The ingredients of Section 405 of the Indian
Penal Code are as follows:
"405. Criminal breach of trust.--
Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of
any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express
or implied, which he has made touching the discharge of
such trust, or wilfully suffers any other person so to do,
commits "criminal breach of trust".
Explanation 1.-- A person, being an employer
of an establishment whether exempted under section 17 of
the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not who deducts the
employee's contribution from the wages payable to the
employee for credit to a Provident Fund or Family Pension
Fund established by any law for the time being in force,
shall be deemed to have been entrusted with the amount of
the contribution so deducted by him and if he makes default
in the payment of such contribution to the said Fund in
violation of the said law, shall be deemed to have
dishonestly used the amount of the said contribution in
violation of a direction of law as aforesaid.
Explanation 2.-- A person, being an employer,
who deducts the employees' contribution from the wages
payable to the employee for credit to the Employees' State
Insurance Fund held and administered by the Employees'
State Insurance Corporation established under the
Employees' State Insurance Act, 1948 (34 of 1948), shall be
deemed to have been entrusted with the amount of the
contribution so deducted by him and if he makes default in
the payment of such contribution to the said Fund in
violation of the said Act, shall be deemed to have
dishonestly used the amount of the said contribution in
violation of a direction of law as aforesaid.
Illustrations
(a) A, being executor to the will of a deceased
person, dishonestly disobeys the law which directs him to
divide the effects according to the will, and appropriate
them to his own use. A has committed criminal breach of
trust.
(b) A is a warehouse-keeper. Z going on a
journey, entrusts his furniture to A, under a contract that it
shall be returned on payment of a stipulated sum for
warehouse room. A dishonestly sells the goods. A has
committed criminal breach of trust.
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
(c) A, residing in Calcutta, is agent for Z,
residing at Delhi. There is an express or implied contract
between A and Z, that all sums remitted by Z to A shall be
invested by A, according to Z's direction. Z remits a lakh of
rupees to A, with directions to A to invest the same in
Company's paper. A dishonestly disobeys the direction and
employs the money in his own business. A has committed
criminal breach of trust.
(d) But if A, in the last illustration, not
dishonestly but in good faith, believing that it will be more
for Z's advantage to hold shares in the Bank of Bengal,
disobeys Z's directions, and buys shares in the Bank of
Bengal, for Z, instead of buying Company's paper, here,
though Z should suffer loss, and should be entitled to bring
a civil action against A, on account of that loss, yet A, not
having acted dishonestly, has not committed criminal
breach of trust.
(e) A, a revenue-officer, is entrusted with
public money and is either directed by law, or bound by a
contract, express or implied, with the Government, to pay
into a certain treasury all the public money which he holds.
A dishonestly appropriates the money. A has committed
criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property
to be carried by land or by water. A dishonestly
misappropriates the property. A has committed criminal
breach of trust."
12. The ingredients of Section 406 of the Indian
Penal Code are as follows:
"406. Punishment for criminal breach of
trust.-
Whoever commits criminal breach of trust
shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or
with both."
13. The ingredients of Section 416 of the Indian
Penal Code are as follows:
"416. Cheating by personation.--
A person is said to "cheat by
personation" if he cheats by pretending to be some
other person, or by knowingly substituting one
person for another, or representing that he or any
other person is a person other than he or such other
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
person really is.
Explanation.-- The offence is
committed whether the individual personated is a
real or imaginary person.
Illustration
(a) A cheats by pretending to be a
certain rich banker of the same name. A cheats by
personation.
(b) A cheats by pretending to be B, a
person who is deceased. A cheats by personation.
14. The ingredients of Section 420 of the Indian
Penal Code are as follows:
"420. Cheating and dishonestly
inducing delivery of property.--
Whoever cheats and thereby
dishonestly induces the person deceived to deliver
any property to any person, or to make, alter or
destroy the whole or any part of a valuable security,
or anything which is signed or sealed, and which is
capable of being converted into a valuable security,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine."
15. The Apex Court while considering the content of
ingredients of Sections 406 and 420 of the Indian Penal Code in
the case of Delhi Race Club (1940) Ltd. & Ors. vs. State of
Uttar Pradesh & Anr. in Criminal Appeal No. 3114 of 2024,
after discussing the earlier law laid down in several cases, has
observed in paragraphs no. 35, 36 and 37 inter alia as follows:
Difference between criminal breach of trust
and cheating
35. This Court in its decision in S.W.
Palanitkar v. State of Bihar S.W. Palanitkar v. State of
Bihar, (2002) 1 SCC 241 expounded the difference in the
ingredients required for constituting of an offence of
criminal breach of trust (Section 406 IPC) vis-à-vis the
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
offence of cheating (Section 420). The relevant observations
read as under :
"9. The ingredients in order to constitute a
criminal breach of trust are : (i) entrusting a person with
property or with any dominion over property; (ii) that
person entrusted : (a) dishonestly misappropriating or
converting that property to his own use; or (b) dishonestly
using or disposing of that property or wilfully suffering any
other person so to do in violation (i) of any direction of law
prescribing the mode in which such trust is to be
discharged, (ii) of any legal contract made, touching the
discharge of such trust.
10. The ingredients of an offence of cheating
are : (i) there should be fraudulent or dishonest inducement
of a person by deceiving him, (ii)(a) the person so deceived
should be induced to deliver any property to any person, or
to consent that any person shall retain any property; or (b)
the person so deceived should be intentionally induced to
do or omit to do anything which he would not do or omit if
he were not so deceived; and (iii) in cases covered by (ii)
(b), the act of omission should be one which causes or is
likely to cause damage or harm to the person induced in
body, mind, reputation or property."
36. What can be discerned from the above is
that the offences of criminal breach of trust (Section 406
IPC) and cheating (Section 420 IPC) have specific
ingredients:
In order to constitute a criminal breach of
trust (Section 406 IPC)
(1) There must be entrustment with person for
property or dominion over the property, and
(2) The person entrusted:
(a) Dishonestly misappropriated or converted
property to his own use, or
(b) Dishonestly used or disposed of the
property or wilfully suffers any other person so to do in
violation of:
(i) Any direction of law prescribing the
method in which the trust is discharged; or
(ii) Legal contract touching the discharge of
trust (see : S.W. Palanitkar [S.W. Palanitkar v. State of
Bihar, (2002) 1 SCC 241.
Similarly, in respect of an offence under
Section 420IPC, the essential ingredients are:
(1) Deception of any person, either by making
a false or misleading representation or by other action or
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
by omission;
(2) Fraudulently or dishonestly inducing any
person to deliver any property, or
(3) The consent that any person shall retain
any property and finally intentionally inducing that person
to do or omit to do anything which he would not do or omit
(see : Harmanpreet Singh Ahluwalia v. State of Punjab
[Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7
SCC 712.
37. Further, in both the aforesaid sections,
mens rea i.e. intention to defraud or the dishonest intention
must be present, and in the case of cheating it must be there
from the very beginning or inception."
16. Thereafter, the Apex Court finally concluded in
paragraph no. 39 as follows:
"39. 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 [Hari Prasad Chamaria v. Bishun
Kumar Surekha, (1973) 2 SCC 823
"4. We have heard Mr Maheshwari on
behalf of the appellant and are of the opinion that
no case has been made out against the respondents
under Section 420 of the 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 of the Penal Code, 1860. There is nothing in the
complaint to show that the respondent 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 by the respondents to him at or before the
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
time he paid the money to them and that at the time
the 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 for them, but this fact
would not be sufficient to fasten criminal liability on
the respondents for the offence of cheating."
17. In the present case, from the very perusal of the
FIR, I find that the informant has not questioned the very sale-
deed that it is a forged or has been obtained fraudulently or in
any part of the sale-deed any incorrect information has been
given.
18. In view of the discussions made hereinabove and
the law as held by the Hon'ble Supreme Court, the FIR relating
to Bairiya P.S. Case No. 213 of 2013, as well as, the order
taking cognizance dated 02.04.2015 and the entire criminal
proceeding are hereby set-aside and quashed.
19. At this stage, learned counsel appearing on
behalf of the State submitted that the stage of trial has changed.
20. That will serve no purpose as I have already
quashed the FIR relating to Bairiya P.S. Case No. 213 of 2013,
as well as, the order taking cognizance dated 02.04.2015 and the
entire criminal proceeding.
Patna High Court CR. MISC. No.55648 of 2015 dt.15-09-2025
21. Accordingly, the present quashing application
stands disposed of.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR A.F.R.
CAV DATE N/A
Uploading Date 17.09.2025
Transmission Date N/A
