Jharkhand High Court
Divyendu Bhardwaj vs The State Of Jharkhand … Opposite … on 8 May, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
[2026:JHHC:15178]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1373 of 2026
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1. Divyendu Bhardwaj, aged about 41 years, son of Late Om
Sharma.
2. Komal @ Komal Sharma, aged about 31 years, wife of Divyendu
Bhardwaj, both are resident of M-24, Sanjay Nagar, Sector-23, P.O.
& P.S. Sanjay Nagar, District- Ghaziabad, State (U.P.)
… Petitioners
Versus
The State of Jharkhand … Opposite Party
——
For the Petitioners : Mr. Gautam Kumar, Advocate
For the State : Mrs. Anuradha Sahay, Addl.P.P.
——
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with the
prayer to quash the first information report being Chira Chas P.S. Case
No. 14 of 2025 registered under Sections 316(2), 318(4), 352, 351(2), 3(5) of
of the Bharatiya Nayaya Sanhita (B.N.S.) and also for quashing the entire
criminal proceeding arising out of the said case which is now pending
before the Court of learned Chief Judicial Magistrate, Bokaro.
3. It is submitted by the learned counsel for the petitioner that the
investigation of the case is still going on and charge-sheet has not yet
been submitted against the petitioners. It is next submitted that the
petitioner no.1 is the brother and petitioner no. 2 is the sister-in-law
1 Cr. M.P. No.1373 of 2026
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(Bhabhi) of the co-accused- Shubham Bhardwaj. The co-accused
Shubham Bhardwaj entered into a MOU (Memorandum of
Understanding) -cum-work order with the informant and co-accused
Shubham Bhardwaj issued four cheques of HDFC Bank, two for
50,00,000/- each and one for 60,00,000/- and one for 90,00,000/- to the
informant. Thereafter, informant supplied material as told by Shubham
Bhardwaj and petitioner no.1 and commercial transaction took place
between the parties. A sum of Rs.2,68,55,829/- was outstanding against
the Almighty Infra Height Private Limited but for last one year before
institution of the first information report, no money was sent by the
Almighty Infra Height Private Limited. Though in the month of
November, the petitioner no. 1- Divyendu Bhardwaj assured of giving 50
lakhs over phone, but he did not pay anything. The only allegation
against petitioner no.2 Komal Sharma is that she along with petitioner
no.1 abused the complainant/informant over phone and threatened to
kill him and threatened to implicate the informant in a false case, if he
again demands back his money and to ruin the informant and also after
hatching conspiracy with the co-accused persons has instituted a false
case against the informant, by which respect and social prestige of the
petitioner has been affected and on the basis of the written report
submitted by the informant, police registered the case and investigation
of case is going on.
4. Learned counsel for the petitioners relying upon the judgment of
Hon’ble Supreme Court of India in the case of Lalit Chaturvedi & Others
versus State of Uttar Pradesh and Another reported in (2024) 12 SCC
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[2026:JHHC:15178]
483 submits that in that case Hon’ble Supreme Court of India in that case,
relied upon its own judgment in the case of V.Y. Jose versus State of
Gurajat reported in (2009) 3 SCC 78 wherein it has been held that a
contractual dispute or breach of contract per se could not lead to initiation
of a criminal proceeding. Learned counsel for the petitioners next relies
upon the judgment of Hon’ble Supreme Court of India in the case of
Delhi Race Club (1940) Limited & Others versus State of Uttar Pradesh
& Another reported in (2024) 10 SCC 690 in para-35 in which Hon’ble
Supreme Court of India discussed the difference between the criminal
breach of trust and cheating and in para 36 of which the Hon’ble
Supreme Court of India has mentioned the ingredients to constitute the
offences punishable under Sections 406 and 420 of the I.P.C. It is next
submitted that the allegation against the petitioners is false and even if
the entire allegation made against the petitioner are considered to be true
in their entirety, still none of the offences is made out against the
petitioners. It is then submitted that in the absence of any allegation of
any alarm being caused to the informant, the offence punishable under
Section 351(2) is not made out and otherwise also it being a non-
cognizable offence for the said offence only or for that matter the offence
punishable under Section 352, the F.I.R. will not be sustainable. It is next
submitted that the offence punishable under Section 352 of the B.N.S.,
2023 is not made out, in absence of any allegation of intentional insult or
to provoke the complainant to commit breach of peace or any other
offence. In this respect, learned counsel for the petitioner relies upon the
judgment of this Court in the Case of Pravin Kujur and Another versus
3 Cr. M.P. No.1373 of 2026
[2026:JHHC:15178]
State of Jharkhand and Another reported in (2004) (4) East Cr C 14 (Jhr)]
para 4 in which this Court relied upon the Judgment of Hon’ble Supreme
Court of India in the case of Vikram Johar versus State of Uttar Pradesh
and Another reported in (2019) 14 SCC 207 in para 24 and 25 of which
read as under:-
“24. Now, we revert back to the allegations in the
complaint against the appellant. The allegation is that the
appellant with two or three other unknown persons, one of
whom was holding a revolver, came to the complainant’s
house and abused him in filthy language and attempted to
assault him and when some neighbours arrived there the
appellant and the other persons accompanying him fled the
spot. The above allegation taking on its face value does not
satisfy the ingredients of Sections 504 and 506 as has been
enumerated by this Court in the above two judgments. The
intentional insult must be of such a degree that should
provoke a person to break the public peace or to commit any
other offence. The mere allegation that the appellant came
and abused the complainant does not satisfy the ingredients
as laid down in para 13 of the judgment of this Court in
Fiona Shrikhande [Fiona Shrikhande v. State of
Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715]
.”
“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)
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And also the judgement of the Supreme Court of India in the case
of Fiona Shrikhande (Fiona Shrikhande versus State of Maharashtra &
Another reported in (2013) 14 SCC 44 para 13 of which reads as under:
“13. Section 504 IPC comprises of the following
ingredients viz. (a) intentional insult, (b) the insult must be
such as to give provocation to the person insulted, and (c)
the accused must intend or know that such provocation
would cause another to break the public peace or to commit
any other offence. The intentional insult must be of such a
degree that should provoke a person to break the public
peace or to commit any other offence. The person who
intentionally insults intending or knowing it to be likely
that it will give provocation to any other person and such
provocation will cause to break the public peace or to
commit any other offence, in such a situation, the
ingredients of Section 504 are satisfied. One of the essential
elements constituting the offence is that there should have
been an act or conduct amounting to intentional insult and
the mere fact that the accused abused the complainant, as
such, is not sufficient by itself to warrant a conviction
under Section 504 IPC.”
In which Hon’ble Supreme Court of India reiterated that unless
the insult alleged is of such a degree to provoke the person to break
public peace or to commit any other offence, The offence punishable
under Section 504 of the I.P.C. is not made out. Hence, the prayer as
prayed for made in this Cr.M.P. be allowed.
5. It is next submitted by learned counsel for the petitioner is that
prior to the present F.I.R. the petitioner no.2 has already lodged
Madhuban Commissionerate (Ghaziabad) P.S. Case No. 403 of 2024
against the informant, the copy of which has been kept as Annexure-02.
Hence, it is submitted that the prayer as prayed by the petitioners in this
criminal miscellaneous petition be allowed.
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6. The learned Add.P.P. vehemently opposes the prayer and submits
that if the allegation made against the petitioner are considered to be
true in their entirety, then all the offences in respect of which F.I.R. has
been registered are made out against the petitioners. Hence, it is
submitted that at this nascent stage, when the investigation of the case is
going on, entire criminal proceedings ought not to be quashed and this
Cr.M.P. being without any merit be dismissed.
7. Having heard the 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 the settled principle of law as has been held by
Hon’ble Supreme Court of India in the case of Vir Prakash Sharma v. Anil
Kumar Agarwal and Another reported in (2007) 7 SCC 373 para-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. (emphasis supplied)
Wherein the Hon’ble Supreme Court of India has observed that
when the dispute between the parties is essentially a civil dispute non-
payment or underpayment of the price of the goods by itself does not
amount to commission of the offence of cheating or criminal breach of
trust.
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8. The Hon’ble Supreme Court of India in the case of Uma Shankar
Gopalika vs. State of Bihar & Anr. 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)wherein the Hon’ble Supreme Court of India 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 the 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.
9. 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-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 make7 Cr. M.P. No.1373 of 2026
[2026:JHHC:15178]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)
reiterated the settled principle of law that to make out a case of
criminal breach of trust, it is not sufficient to show that the property 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.
10. It is also a settled principle of law as has been held by Hon’ble
Supreme Court of India in the case of Delhi Race Club (1940) Limited &
Others versus State of Uttar Pradesh & Another reported in (2024) 10
SCC 690 in para-43
“43. 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.” (emphasis supplied)
That the offence of criminal breach of trust and the offence of
cheating cannot co-exist simultaneously.
11. Now coming to the facts of the case, this is a clear case of
commercial transaction between the parties in which the informant
claims under-payment of the articles sold by it to the business
establishment of the brother of the petitioner no.1 who is the brother-in-
8 Cr. M.P. No.1373 of 2026
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law of the petitioner no.2. There is no allegation against the petitioner
that the petitioners have played deception since the beginning of the
transaction between the parties and in absence of the same this Court has
no hesitation in holding that even if the entire allegation made against
the petitioners are considered to be true, still the offence punishable
under Section 318(4) of the B.N.S., 2023 is not made out.
12. So far as the offence punishable under Section 316(2) of the B.N.S.,
2023 is concerned, there is no clearcut case of entrustment of any
property, as the articles were admittedly sold in course of a commercial
transaction by a seller to a purchaser; therefore the same, in the
considered opinion of this Court cannot be termed as “property
entrusted” as the said words have been used in Section 316(1) of the
B.N.S. Because the words “property entrusted” means the ownership of
the property still remains with the person entrusting the property and
the ownership is not transferred to the person to whom, the property is
entrusted; which is not the case, in case of sale of a property. As with the
sale, the ownership of the property is transferred to the purchaser and
the purchaser is at liberty to use the property the way he likes it, without
the control of the seller. There is no allegation of any dishonest
misappropriation of any entrusted property, hence this Court is of the
considered view that keeping in view the essential ingredients of Section
406 of the I.P.C. which corresponds to Section 316 of the B.N.S. as
mentioned in the case of Delhi Race Club (1940) Limited & Others
versus State of Uttar Pradesh & Another (Supra) even if the entire
allegations made against the petitioners are considered to be true in their
9 Cr. M.P. No.1373 of 2026
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entirety still the offence punishable under Section 316(2) of the B.N.S.,
2023 is not made out. So far as the offence punishable under Section 351
(2) and 352 of B.N.S., 2023 are concerned, they are non-cognizable
offences and in respect of such offences only, F.I.R. is not sustainable but
otherwise also mere allegation that the petitioners abused the informant
over phone by itself is insufficient to satisfy the ingredients of Section 352
of the B.N.S., 2023; in the absence of any material to suggest that the same
was of such a nature so as to provoke the informant commit breach of
peace or any other offence. In the absence of any allegation that the
threatening given by the petitioners was with intent to cause alarm to the
informant; this court is of the considered view that the offence
punishable under Section 351(2) of the B.N.S., 2023 is not made out.
Moreover, in the facts of the case reading between the lines, these
offences appear to ornamental in nature. In view of such facts of the case,
this Court is of the view that even if the entire allegations made against
the petitioner are considered to be true in their entirety, still the none of
the offences in respect of which F.I.R. has been registered is made out
against the petitioners. Therefore, continuation of these criminal
proceedings against the petitioners will amount to abuse of process of
law. Hence, the first information report being Chira Chas P.S. Case No.
14 of 2025 registered under Sections 316(2), 318(4), 352, 351(2), 3(5) of the
Bharatiya Nayaya Sanhita (B.N.S.), 2023 and the entire criminal
proceedings of the said case which is pending in the Court of learned
Chief Judicial Magistrate, Bokaro, is quashed and set aside against the
petitioners named above.
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13. In the result, this Cr.M.P. stands allowed.
14. In view of disposal of the instant Cr.M.P., pending I.A. if any
stands disposed of accordingly.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 08th of May, 2026
AFR/ Amar
Uploaded on -19/05/2026
11 Cr. M.P. No.1373 of 2026
