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Judgment
I.A. No. 14839 of 2026
Heard the parties.
Learned counsel for the petitioner submits that this interlocutory application has been filed for early hearing of this Criminal Miscellaneous Petition.
Since the hearing of this Criminal Miscellaneous Petition is being taken up today, hence, this interlocutory application is disposed of being infructuous.
Cr.M.P. No.2585 of 2025
Heard the parties.
Though notice has validly been served upon the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the entire criminal proceedings of Karra P.S. Case No. 82 of 2015 corresponding to G.R. Case No.518 of 2015 including the order dated 28.02.2025 passed by the learned Sub-Divisional Judicial Magistrate, Khunti in the said case whereby and where under the learned Sub-Divisional Judicial Magistrate, Khunti has taken cognizance of the offences punishable under Sections 420, 406/34 of the Indian Penal Code and the prayer has also been made to quash the order dated 29.06.2026 passed by the learned Judicial Magistrate-1st Class, Khunti in the said case whereby and where under the learned Judicial Magistrate-1st Class, Khunti has framed charges against the petitioners for having committed the offences punishable under Sections 420/34, 406/34 & 506/34 of the Indian Penal Code but no witness have been examined as yet and the next date fixed is 15.10.2026.
The allegation against the petitioners is that the petitioner No.1 gave Rs.10,000/- advance to the informant for construction of foundation and pillars of Sunagi Bridge and on different dates, he also paid Rs.2,50,000/-to the informant for the said purpose. The informant carried out the construction by spending Rs.12,20,010/- but the petitioner No.1 is not paying the remaining amount and on 30.10.2015, the petitioner No.1 abused and threatened the informant to kill him. The informant also stated that he has paid Rs.10,000/- to the account of the petitioner No.2 to help the informant to get the said work from the petitioner No.1.
Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another 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) and submits that therein, the Hon’ble Supreme Court of India has reiterated the settled principle of law 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 and if the intention to cheat has developed later on, the same cannot amount to cheating. It is next submitted that in this case, there is no allegation against the petitioners of playing deception since the beginning of the transactions between the parties. Hence, it is submitted that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.
So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph No.18 of which reads as under :-
“18.In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied) and submits that therein, the Hon’ble Supreme Court of India has held that to make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. It is next submitted that in this case, there is no allegation against the petitioners of any dishonest misappropriation of any entrusted property and in the absence of the same, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.
So far as the offence punishable under Section 506 of the Indian Penal Code is concerned, the learned counsel for the petitioners submits that the same is basically an ornamental allegation and in the absence of the essential ingredient of Section 506 of the Indian Penal Code that threatening must be of such nature as to raise alarm in the mind of the victim, the offence punishable under Section 506 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.
Learned Special Public Prosecutor appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in this Criminal Miscellaneous Petition and submits that if the entire allegations made against the petitioners are considered to be true in their entirety, then all the offences in respect of which charges has been framed by the learned Judicial Magistrate-1st Class, Khunti is, in fact, being made out against the petitioners. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.
Having heard the rival submissions made at the Bar and after carefully 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 Vir Prakash Sharma vs. Anil Kumar Agarwal & Another reported in (2007) 7 SCC 373, paragraph No.08 of which reads as under:-
“8.The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus:
“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’.” Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” that non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust.
Now coming to the facts of the case, so far as the offence punishable under Section 420/34 of the Indian Penal Code is concerned, as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another (supra), the essential ingredient is that ‘the accused must play deception since the beginning of the transaction between the parties’. But the facts of the case reveal that it is a civil dispute regarding under-payment of the claim of the informant in respect of the work for the petitioner no.1, to have been done by the informant and according to the petitioners, the amount of money already paid to the informant is the justified amount to which the informant is entitled, for the work done by him.
Under such circumstances, this Court is of the considered view that in the absence of any essential ingredient to constitute the offence punishable under Section 420 of the Indian Penal Code that “the accused must play deception since the beginning of the transactions between the parties”, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.
So far as the offence punishable under Section 406/34 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are as under:-
There must be an entrustment and,
There must be dishonest misappropriation of the entrusted property or conversion of the entrusted property to one’s own use, or use in violation of a legal direction or of any legal contract. as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641.
Now coming to the facts of the case, there is absolutely no allegation against the petitioners of being entrusted with any property and in the absence of any entrustment, the question of dishonest misappropriation of any entrusted property or conversion of the entrusted property to one’s own use, or use in violation of a legal direction or of any legal contract does not arise.
Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.
So far as the offence punishable under Section 506/34 of the Indian Penal Code is concerned, it is a settled principle of law as has been reiterated by the Hon’ble Supreme Court of India in the case of Vikram Johar vs. State of Uttar Pradesh & Another reported in (2019) 14 SCC 207 paragraph No.25 of which read as under :-
‘’25. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edn. with regard to proof of offence states the following:
“… The prosecution must prove:
(i)That the accused threatened some person.
(ii)That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of someone in whom he was interested;
(iii)That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.”(emphasis supplied)
A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.’’ to constitute the offence punishable under Section 506 of the Indian Penal Code, the threat must be done to cause alarm to the person threatened or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do; as a means of avoiding the execution of such threat.
Now coming to the facts of the case, there is absolutely no allegation against the petitioners that threat was given with intention to cause alarm to the informant nor is there any allegation to cause the informant to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do. In the absence of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 506 of the Indian Penal Code is not made out against the petitioners even with the aid of Section 34 of the Indian Penal Code.
In view of the discussions made above, as none of the offences in respect of the charges has been framed by the learned Judicial Magistrate-1st Class, Khunti is made out against the petitioners, this Court is of the considered view that the continuation of the criminal proceeding against the petitioners will amount to abuse of process of law. Therefore, this Court has no hesitation in holding that this is a fit case where the entire criminal proceedings of Karra P.S. Case No. 82 of 2015 corresponding to G.R. Case No.518 of 2015 including the order dated 28.02.2025 passed by the learned Sub-Divisional Judicial Magistrate, Khunti in the said case as well as the order dated 29.06.2026 passed by the learned Judicial Magistrate-1st Class, Khunti in the said case, be quashed and set aside against the petitioners named above.
Accordingly, the entire criminal proceedings of Karra P.S. Case No. 82 of 2015 corresponding to G.R. Case No.518 of 2015 including the order dated 28.02.2025 passed by the learned Sub-Divisional Judicial Magistrate, Khunti in the said case as well as the order dated 29.06.2026 passed by the learned Judicial Magistrate-1st Class, Khunti in the said case, is quashed and set aside against the petitioners named above.
In the result, this Criminal Miscellaneous Petition is allowed.