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Judgment
Heard the parties.
Learned senior 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.
Heard the parties.
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 order dated 17.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Rajmahal in Complaint Case No. 580 of 2023 whereby and where under the learned Sub-Divisional Judicial Magistrate, Rajmahal has taken cognizance of the offence punishable under Section 420 of the Indian Penal Code and passed summoning order against the petitioner.
The allegation against the petitioner is that the petitioner was the President of a Scheme for construction for the welfare of the villager. The complainant supplied iron rod, cement, stone chips and sand worth Rs.8,39,357/- and cash for payment of labour cost amounting to Rs.3,10,000/- for the said Scheme. The petitioner was the President and the co-accused who was the Secretary of the said Scheme. The petitioner issued the cheque of Rs.3,00,000/- but did not pay the remaining amount.
On the basis of the complaint, the statement on solemn affirmation of the complainant and the statement of the inquiry witnesses, the learned Sub-Divisional Judicial Magistrate, Rajmahal has taken cognizance of the said offence as already indicated above.
Learned senior counsel for the petitioner submits that charge has not yet been framed in this case and the case is next fixed to 24.08.2026 for evidence before charge.
Learned senior counsel for the petitioner relies upon the judgment of this Court in the case of Raj Kishore Yadav vs. The State of Jharkhand & Another reported in 2026:JHHC:4878 (passed in Cr.M.P. No. 349 of 2025 dated 17th February, 2026) and submits that therein, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Lalit Chaturvedi and Others vs. State of Uttar Pradesh and Another reported in 2024 SCC Online SC 171 wherein, the Hon’ble Supreme Court of India has reiterated the settled principle of law in para-5 of the said judgment that there is a clear distinction between a civil wrong in the form of breach of contract, non-payment of money or disregard to and violation of the contractual terms.
Learned senior counsel for the petitioner next submits that in the fact of the case of Raj Kishore Yadav vs. The State of Jharkhand & Another (supra), this Court also relied upon the judgment of the Hon'ble Supreme Court of India in the case of V.Y. Jose vs. State of Gujarat reported in (2009) 3 SCC 78 wherein, the Hon’ble Supreme Court of India explicitly stated that a contractual dispute or breach of contract per se should not lead to initiation of a criminal proceeding and the ingredient of 'cheating' as defined under Section 415 of the Indian Penal Code, is existing of a fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning of the formation of contract.
Learned senior counsel for the petitioner then submits that in the fact of the case of Raj Kishore Yadav vs. The State of Jharkhand & Another (supra), this Court also relied 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-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) wherein, it has been reiterated by the Hon’ble Supreme Court of India that in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating.
Learned senior counsel for the petitioner further submits that in the fact of the case of Raj Kishore Yadav vs. The State of Jharkhand & Another (supra), this Court also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Another reported in (2007) 7 SCC 373 wherein, it has been reiterated by the Hon’ble Supreme Court of India that when the dispute between the parties is essentially a civil dispute, 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. Learned senior counsel for the petitioner lastly submits that even if the entire allegations made against the petitioner 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 petitioner. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition, be allowed.
Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner and submit that if the entire allegations made against the petitioner are considered to be true in their entirety, then the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioner. 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 that in order to constitute an offence of cheating, the accused must play deception since the beginning of the transaction between the parties 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).
It is also a settled principle of law that the dispute between the parties is essentially a civil dispute, 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 as has been held by the Hon'ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Another (supra).
Now coming to the facts of the case, there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties. Further, essentially the dispute between the parties is a civil dispute and it is a case of under payment of price of goods supplied by the complainant to the petitioner. Therefore, 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 420 of the Indian Penal Code is not made out against the petitioner. Hence, this Court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the order dated 17.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Rajmahal in Complaint Case No. 580 of 2023, be quashed and set aside against the petitioner named above.
Accordingly, the order dated 17.01.2024 passed by the learned Sub-Divisional Judicial Magistrate, Rajmahal in Complaint Case No. 580 of 2023 , is quashed and set aside against the petitioner named above.
In the result, this Criminal Miscellaneous Petition is allowed.
In view of disposal of this Criminal Miscellaneous Petition, pending I.A. No. 10042 of 2026 stands disposed of being infructuous.