Patna High Court – Orders
Dineshwar Jha And Anr vs State Of Bihar And Anr on 7 April, 2026
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.11992 of 2018
Arising Out of PS. Case No.-117 Year-2014 Thana- PURNIA COMPLAINT CASE District-
Purnia
======================================================
1. Dineshwar Jha, Son of Late Pandit Ghanshyam Jha,
2. Mridula Devi, Wife of Dineshwar Jha, Both are Resident of Village-
Sukhsena, Police Station- Barhara Kothi, District- Purnia.
... ... Petitioner/s
Versus
1. State of Bihar
2. Fanindra Ranjan Kumar, Son of Late Vidyanand Prasad, Resident of Shanti
Nagar, Chunapur Road, P.S.- K. Hat, District- Purnia.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Avinash Kumar, Advocate
Mr. Kumar Satyam, Advocate
Mr. Ajay Kumar Mehta, Advocate
For the State : Mr. Satyendra Narayan Singh, APP
For the Opposite Party/s : Mr. Bijendra Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
7 07-04-2026
1. Heard learned counsel for the parties as well as the
learned A.P.P. for the State.
2. The present application has been filed for quashing
the order dated 12.12.2017 passed in Criminal Revision No. 207
of 2017 by the learned Sessions Judge, Purnia (hereinafter
referred to as ‘Revisional Court’), whereby the revision
application preferred by the petitioners against the order dated
26.07.2017 passed in Complaint Case bearing C.A No.117 of
2014 by the learned A.C.J.M.-I, Purnia (hereinafter referred to
as ‘Trial Court’) has been dismissed, and further for quashing
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the order dated 26.07.2017 whereby the discharge petition filed
by the petitioners under Section 245(1) of the Code of Criminal
Procedure has been rejected and to discharge the petitioners
from the offences.
3. Prosecution story in brief is that the petitioners,
being owners of a piece of land bearing Khesra No. 972,
Holding No. 155/174, measuring about 2 Kathas 5 Dhurs
situated within Purnia Municipal area, were having cordial
relations with the family of the complainant (O.P. No. 2). It has
been alleged that taking advantage of such relationship, the
petitioners proposed to sell the said land to the mother of the
O.P. No. 2, namely Basanti Devi, and pursuant thereto, an
agreement for sale (Bainama) was executed for a total
consideration amount of Rs. 37,000/-, out of which a sum of Rs.
10,000/- was paid as advance on 02.03.2000 and possession of
the land was handed over to the family of O.P. No. 2 and the
complainant(O.P No.2) got the holding number created in the
name of his mother in the Purnia municipality. It has further
been alleged that the mother of O.P. No. 2 paid a total sum of
Rs. 31,500/- to the petitioner No.1 in different installments for
which O.P. No.2 has the receiving and remaining 5,500 was paid
later on for which there is no receiving. It has also been alleged
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that despite receiving the said amount, the petitioners failed to
execute the registered sale deed in favour of the mother of O.P.
No. 2 and kept on delaying the same on one pretext or the other.
It has further been alleged that after the death of the mother,
O.P. No. 2 continued to remain in possession of the said land
and got the municipal holding as well as electricity connection
in her name. It has also been alleged that despite repeated
requests and even after issuance of legal notice in January 2013,
the petitioners despite promise did not execute the sale deed and
ultimately attempted to sell the property to some third person at
a higher price. On the basis of the aforesaid allegations, a
complaint case has been filed by O.P. No. 2 which was
registered as a Complaint Case bearing C.A No.117 of 2014.
4. The learned Trial Court, upon perusal of the
complaint petition, solemn affirmation of O.P. No. 2 and the
statements of the prosecution witnesses, found that there were
sufficient grounds to proceed against the petitioners for the
offences under sections 420 and 34 of Indian Penal Code and
taken cognizance of the same vide order dated 18.07.2014. The
discharge petition filed on the behalf of petitioners was rejected
vide order dated 26.07.2017. Aggrieved by the same, the
petitioners preferred a Criminal Revision application before the
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learned Revisional Court, being Criminal Revision No. 207 of
2017, which too, after hearing the parties, came to be dismissed
on ground of limited scope and the order of the learned Trial
Court was affirmed vide order dated 12.12.2017. Aggrieved
thereby, petitioners preferred this present application.
5. Learned counsel for the petitioners submits that the
entire prosecution case, even if taken at its face value, arises out
of an agreement for sale (Bainama) executed between petitioner
no. 1 and the mother of O.P. No. 2 and the dispute relates to
alleged non-execution of the sale deed despite part payment of
the consideration amount. It is submitted that the allegations, at
best, disclose a case of breach of contract for which the remedy
lies in civil law and not by way of criminal prosecution. It is
further submitted that there is no allegation in the complaint
petition to suggest that the petitioners had any fraudulent or
dishonest intention at the inception of the transaction so as to
constitute an offence under Section 420 of the Indian Penal
Code. On the contrary, it is the admitted case of O.P. No. 2 that
possession of the land was handed over and part consideration
amount was accepted, which clearly negates any allegation of
initial deceit or inducement.
6. Learned counsel further submits that the dispute
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pertains to claim of right, title and possession over the land in
question, which can only be adjudicated by a competent civil
court in an appropriate proceeding. It is submitted that O.P. No.
2, instead of availing the remedy available under civil law for
specific performance of contract, has maliciously instituted the
present criminal proceeding with an oblique motive to
pressurize the petitioners. Petitioner No.1 is a government
servant posted as headmaster in the school and petitioner No.2
is his wife. The O.P No.2 failed to fulfill the terms of Bainama
by not paying the balance consideration amount and got the
house mutated in the name of mother, holding number created
without even taking consent of the petitioners and got the
electric connection in their name. Petitioner No.1 demanded
balance amount, and otherwise asked to vacate the house. It is
further submitted that the complaint has been filed after an
inordinate delay of about 14 years from the date of the alleged
transaction, which itself renders the prosecution case doubtful
and indicative of mala fide intention on the part of O.P. No. 2.
Learned counsel further submits that the learned Trial Court has
failed to appreciate the settled principle of law that a purely civil
dispute cannot be given a colour of criminal offence and has
mechanically taken cognizance and rejected the discharge
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petition without proper application of judicial mind and further
Revisional Court mechanically dismissed the revision petition
without application of judicial mind. Therefore, it is submitted
that continuation of the criminal proceeding would amount to
abuse of the process of the Court and, as such, the impugned
orders as well as the entire criminal proceeding are fit to be
quashed in the interest of justice.
7. Learned counsel appearing on behalf of O.P. No. 2
submits that the complaint petition clearly discloses the
commission of cognizable offence and the learned Trial Court
has rightly taken cognizance after considering the materials
available on record, including the solemn affirmation of O.P.
No. 2 and the statements of the witnesses and subsequently
rightly dismissed discharge petition and further Revisional
Court rightly dismissed the revision petition. It is submitted that
the petitioners, after entering into an agreement for sale and
receiving the consideration amount from the mother of O.P. No.
2, deliberately failed to execute the sale deed and thereby
dishonestly deprived O.P. No. 2 of his lawful right over the
property. It is further submitted that the conduct of the
petitioners in avoiding execution of the sale deed and attempting
to sell the property to a third party at a higher price clearly
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reflects their dishonest intention.
8. Learned counsel further submits that merely
because the transaction has some civil flavour, the same does
not bar criminal prosecution when the ingredients of the offence
are prima facie made out. It is submitted that the petitioners
have intentionally induced the mother of O.P. No. 2 to part with
money on false assurance and thereafter failed to honour their
commitment, which squarely attracts the offence under Section
420 of the Indian Penal Code. It is also submitted that the
question as to whether the petitioners had fraudulent intention or
not at the inception of the transaction is a matter of evidence and
cannot be adjudicated at this preliminary stage in a proceeding
under Section 482 of the Code of Criminal Procedure. It is thus
submitted that the present application being devoid of merit is
fit to be dismissed.
9. Learned A.P.P. for the State submits that on the
basis of the allegations made in the complaint petition,
supported by the solemn affirmation of O.P. No. 2 and the
statements of the witnesses, finding prima facie case, the
learned Trial Court has taken cognizance and rejected the
discharge petition and further Revisional Court dismissed
revision petition, which requires no interference by this Court
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under section 482 of the Code of Criminal Procedure code. It is
contended that it is not the stage, when the defense of the
petitioners can be looked into.
10. Before proceeding further, it would be apposite to
deal with the settled position of law with regard to the exercise
of inherent powers under section 482 of the Code of Criminal
Procedure. It is well settled that the inherent jurisdiction of the
High Court under section 482 Cr.P.C is of wide amplitude,
however, such power is required to be exercised sparingly, with
circumspection and in exceptional cases, so as to prevent abuse
of the process of the court or otherwise to secure the ends of
justice.
11. Having heard the learned counsel for parties as
well as the learned A.P.P for the State and upon perusal of the
materials available on record, it appears that the dispute between
the parties arises out of an agreement for sale (Bainama) against
the consideration amount of Rs. 37,000, made between the
petitioner no. 1 and the mother of O.P No.2 with respect to a
piece of land for which an advance of Rs.10,000 was paid and
possession of the land was handed over to the family of O.P
No.2. Thereafter the mother of O.P No.2 had made further
payment to the tune of Rs.21,500 in different installment for
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which O.P No.2 has receipt. However further payment of 5,500
is disputed for which O.P No.2 has no receipt. It is alleged by
O.P No.2 that despite making payment of consideration amount,
the sale deed was not executed/registered by petitioners on
repeated requests. The question which would arise in the present
case is that “whether on these facts, the commission of any
offence particularly under section 420 of Indian penal code is
made out to continue the criminal proceeding against the
petitioners.”
12. The Hon’ble Supreme Court in Delhi Race Club
(1940) Ltd. & Ors. v. State of Uttar Pradesh & Anr. reported in
(2024) 10 SCC 690 has elaborately explained sine qua non
requirement for the offense of cheating, which is as under:
“36…………..Similarly, in respect of an
offence under Section 420 IPC, the essential
ingredients are: – 1) deception of any person,
either by making a false or misleading
representation or by other action or by
omission; 2) fraudulently or dishonestly
inducing any person to deliver any property,
or 3) the consent that any persons 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, (2009) 7 SCC 712 : (2009)
Cr.L.J. 3462 (SC))
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
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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
& Ors., reported in (1973) 2 SCC 823 as
under:
“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 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.” ”
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13. The Hon’ble Supreme Court in Arshad Neyaz
Khan v. State of Jharkhand and Anr., reported in 2025 SCC
Online SC 2508 has held as under:
“17. In Inder Mohan Goswami vs.
State of Uttaranchal, (2007) 12 SCC 1
(“Inder Mohan Goswami”), while dealing
with Section 420 IPC, this Court observed
thus:
“42. On a reading of the aforesaid
section, it is manifest that in the definition
there are two separate classes of acts which
the person deceived may be induced to do. In
the first class of acts he may be induced
fraudulently or dishonestly to deliver
property to any person. The second class of
acts is the doing or omitting to do anything
which the person deceived would not do or
omit to do if he were not so deceived. In the
first class of cases, the inducement must be
fraudulent or dishonest. In the second class
of acts, the inducing must be intentional but
need not be fraudulent or dishonest.
Therefore, it is the intention which is the gist
of the offence. To hold a person guilty of
cheating it is necessary to show that he had
a fraudulent or dishonest intention at the
time of making the promise. From his mere
failure to subsequently keep a promise,
onecannot presume that he all along had a
culpable intention to break the promise from
the beginning.”
19. It is settled law that for
establishing the offence of cheating, the
complainant/respondent No.2 was required
to show that the appellant had a fraudulent
or dishonest intention at the time of making
a promise or representation of not fulfilling
the agreement for sale of the said property.
Such a culpable intention right at the
beginning when the promise was made
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cannot be presumed but has to be made out
with cogent facts……..”
14. The Coordinate Bench of this Court, in the case of
Shahid Perwez v. The State of Bihar reported in 2017 SCC
Online Pat 4257, while considering the scope and ingredients of
offence of cheating, has held as under:
“14.The offence of cheating is defined under
Section 415 of the Penal Code, which reads
as under:–
“415.Cheating.–Whoever, by deceiving any
person, fraudulently or dishonestly induces
the person so deceived to deliver any
property to any person, or to consent that
any person shall retain any property, or
intentionally induces the person so deceived
to do or omit to do anything which he would
not do or omit if he were not so deceived,
and which act or omission causes or is likely
to cause damage or harm to that person in
body, mind, reputation or property, is said to
“cheat”.”
15.To hold a person guilty of cheating as
defined under Section 415 of the Penal
Code, it is necessary to show that the
accused had fraudulent or dishonest
intention at the time of making the promise
with an intention to retain the property.
16.The question, whether failure to honour
agreement to sell without their being any
allegation of fraudulent or dishonest
inducement having been made by the
accused pursuant to which the complainant
parted with money would constitute offence
under Sections 406 and 420 of the Penal
Code, is no more res Integra.
17. In Murari Lal Gupta v. Gopi Nath Singh
[(2005) 13 SCC 699] the Supreme Court
observed as under:
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parties, the complaint and the orders of the
learned Magistrate and the Sessions Judge.
Having taken into consideration all the
materials 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 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 pressurize the petitioner for coming to
terms with the respondent.”
(emphasis mine)
18. In Nageshwar Prasad Singh alias Sinha
v. Narayan Singh [(1998) 5 SCC 694], a
similar question fell for consideration before
the Supreme Court and a three Judge Bench
relying upon illustration (g) of Section 415
of the Penal Code held that the agreement
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for sale of land and the earnest money paid
to the owner as part of consideration and
possession of land and the subsequent
unwillingness of the owner to complete the
same gave rise to a liability of civil nature
and the criminal complaint was not
competent.
19. In Dalip Kaur v. Jagnar Singh [(2009)
14 SCC 696] : [(2009) 4 PLJR (SC) 26], the
question for determination before the
Supreme Court was whether breach of
contract of an agreement for sale would
constitute an offence under Section 406 or
Section 420 of the Penal Code. After
examining the fact of the case and the
relevant sections of the Penal Code, the
Supreme Court held that an offence of
cheating would be constituted when the
accused has fraudulent or dishonest
intention at the time of making of promise
or representation. A pure and simple
breach of contract does not constitute the
offence of cheating. It further held that 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 or criminal breach of
trust.”
(emphasis supplied)
15. In the present case, this Court finds that the entire
prosecution case emanates from an agreement for sale
(Bainama) made between petitioner no. 1 and the mother of O.P.
No. 2 with respect to the land in question for consideration
amount of Rs. 37,000. It has been admitted fact that an advance
amount of Rs. 10,000/- was paid and simultaneously possession
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of the property was handed over to the family of O.P. No. 2.
Thereafter further payment was made to the tune of Rs.21,500
in different installment, for which receipts were issued by the
petitioners. O.P No.2 alleged that payment of Rs.5,500 was also
made which was disputed by petitioner and despite payment of
the consideration amount, the registered sale deed was not
executed in their favour.
16. From a bare perusal of the complaint petition, it is
evident that the grievance of O.P. No. 2 primarily relates to non-
performance of the terms and conditions of the said agreement
for sale. The allegations made therein, even if taken at their face
value and accepted in their entirety, would at best disclose a
case of breach of contract. This Court cannot lose sight of the
settled legal position that a purely civil dispute cannot be
permitted to be given a cloak of criminal offence. The dispute in
the present case relates to enforcement of contractual
obligations as well as claim of right, title and possession over
the property in question, which are matters squarely falling
within the domain of civil adjudication. Allowing such disputes
to be prosecuted criminally would amount to misuse of the
process of law.
17. This Court further finds that in order to constitute
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an offence under Section 420 of the Indian Penal Code, it is
essential that there must be a fraudulent or dishonest intention
on the part of the accused at the very inception of the
transaction. The element of deception and dishonest inducement
must exist from the very beginning, which leads the
complainant to part with property. In the present case, there is
no averment in the complaint petition to indicate that the
petitioners had any such dishonest intention at the time of
entering into the agreement. On the contrary, the admitted fact
that possession of the property was handed over to the family of
O.P. No. 2 and that part consideration amount was accepted
clearly militates against the allegation of any initial fraudulent
intent on the part of the petitioners.
18. It appears that the learned Trial Court, while
taking cognizance of the offence and subsequently rejecting the
discharge petition filed by the petitioners, has failed to properly
appreciate the aforesaid legal position with regard to offence of
cheating and the nature of the dispute involved. Furthermore,
Learned Revisional Court has mechanically dismissed the
revision petition in disregards of settled law.
19. In view of the discussions made hereinabove, this
Court is of the considered opinion that the allegations made in
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the complaint petition do not disclose the commission of any
criminal offence, particularly under Section 420 of the Indian
Penal Code. The continuation of the criminal proceeding in such
circumstances would amount to abuse of the process of the
Court and no useful purpose would be served by allowing the
same to proceed.
20. Accordingly, the present application is allowed.
The order of Revisional Court dated 12.12.2017 and order of
Trial Court dated 26.07.2017 is hereby quashed and the entire
criminal proceeding arising from Complaint case bearing C.A
No.117 of 2014 against the present petitioners stands set aside.
21. The Interim Order granting stay of proceeding in
Complaint case bearing C.A No.117 of 2014 is vacated.
22. Let a copy of this order be communicated to the
court concerned forthwith for information and necessary
compliance.
(Sunil Dutta Mishra, J)
Harish/-
U T
