Patna High Court – Orders
Vijay Kumar vs The State Of Bihar on 7 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.33354 of 2023
Arising Out of PS. Case No.-251 Year-2021 Thana- PATNA COMPLAINT CASE District-
Patna
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1. VIJAY KUMAR, SON OF LATE SATYENDRA KUMAR RESIDENT OF
VILLAGE- JAGAT NARAYAN ROAD, OPP. PATLIPUTRA INTER HIGH
SCHOOL, PS- KADAMKUAN, DISTT- PATNA AND PERMANENT R/O
VILLAGE TARWAN, PO- ARAP, PS- NAUBATPUR, DISTT- PATNA
2. SANJAY KUMAR, SON OF LATE SATYENDRA KUMAR ESIDENT OF
VILLAGE- JAGAT NARAYAN ROAD, OPP. PATLIPUTRA INTER HIGH
SCHOOL, PS- KADAMKUAN, DISTT- PATNA AND PERMANENT R/O
VILLAGE TARWAN, PO- ARAP, PS- NAUBATPUR, DISTT- PATNA
... ... Petitioner/s
Versus
1. The State of Bihar
2. DR. BRIJESH KUMAR, SON OF AWDESH PRASAD SHARMA
RESIDENT OF VILLAGE- JAGAT NARAYAN ROAD, OPP.
PATLIPUTRA INTER HIGH SCHOOL, PS- KADAMKUAN, DISTT-
PATNA
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms.Eashita Raj, Advocate
For the Informant : Ms.Aaruni Singh, Advocate
For the Opposite Party/s : Mr.Uday Chand Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL ORDER
8 07-07-2026
The present application under Section 482 of the
Code of Criminal Procedure, 1973 has been filed by the
petitioners, Vijay Kumar and Sanjay Kumar, seeking
quashing of the order dated 20.04.2021 passed by the learned
Additional Chief Judicial Magistrate-III, Danapur, Patna,
whereby cognizance has been taken for offences punishable
under Sections 406 and 420 of the Indian Penal Code, 1860 in
Complaint Case No. 251(C) of 2021 instituted by Opposite
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Party No. 2, Dr. Brijesh Kumar @ Brajesh Kumar.
2. Opposite Party No. 2, a retired person aged about
76 years, claims to be the owner of ancestral land
appertaining to Chuk Nos. 37 and 34, admeasuring 95
decimals under Khata No. 35, situated at Village Tarwan, P.S.
Naubatpur, District Patna. He states that with the intention of
developing the said land for charitable and religious purposes
in public interest, and noting that the distance between the
public road and his land was approximately 400 feet, he
entered into a written Agreement dated 25.05.2017 with
petitioner No. 2, Sanjay Kumar. The said Agreement was also
signed by petitioner No. 1, Vijay Kumar.
3. As per the terms of the Agreement, a road was to
be jointly constructed by Opposite Party No. 2 and the
petitioners. The road was agreed to be 14 feet wide and 401
feet long. It was further agreed that Opposite Party No. 2
would transfer 2 kathas of his land to the petitioners as
compensation, and the constructed road would be used by
both the parties. A sketch map was prepared and appended to
the Agreement. Opposite Party No. 2 contends that he duly
handed over possession of the 2 kathas of land to the
petitioners, who are cultivating the same till date.
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4. Opposite Party No. 2 alleges that after he
constructed a boundary wall and installed pillars for
demarcation of the road, the petitioners, along with others,
started creating obstructions, threatening him, and demanding
money. It is further alleged that the petitioners, with the
alleged connivance of the Officer-in-Charge, Naubatpur
Police Station (arrayed as Accused No. 4 in the complaint),
caused the pillars to be ransacked and broke them. A legal
notice dated 21.12.2020 was sent by the petitioners to
Opposite Party No. 2 objecting to the marking of a 15 feet
wide road without their consent. Opposite Party No. 2 claims
to have approached the police on 19.07.2020, but no relief
was granted.
5. Finding no redress, Opposite Party No. 2 filed
Complaint Case No. 251(C) of 2021 on 20.02.2021 before the
learned Additional Chief Judicial Magistrate-III, Danapur,
Patna. The learned Magistrate, after recording the solemn
affirmation of the complainant and examining the enquiry
witness (Shambhu Kumar, who is stated to have witnessed
the Agreement), and upon perusal of the documents, took
cognizance of offences under Sections 406 and 420 IPC
against the petitioners vide the impugned order dated
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20.04.2021.
6. The petitioners, who are real brothers and
nephews of Opposite Party No. 2, contend that the matter
arises out of a family partition and is purely civil in nature.
They assert that their father was allotted Plots Nos. 461 to
464 under the same Khata, and they are in possession of their
ancestral land. According to them, the complainant is
attempting to encroach upon their land and is acting contrary
to the terms of the Agreement. They deny any criminal intent
or wrongdoing and submit that the allegations do not disclose
the ingredients of the offences charged. They further plead
that dragging family members into criminal proceedings in a
land dispute amounts to abuse of the process of law.
7. It is relevant to note the procedural history. This
Court, by order dated 03.10.2024 passed in Cr. Misc. No.
33354 of 2023, had allowed the petitioners’ application and
quashed the impugned cognizance order. However, Opposite
Party No. 2 challenged the said order before the Hon’ble
Supreme Court in SLP (Crl.) No. 4811 of 2025. By order
dated 02.05.2025, the Hon’ble Supreme Court set aside the
judgment of this Court and remanded the matter for fresh
consideration after affording an opportunity of hearing to the
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complainant.
8. Both parties have filed their respective pleadings.
The petitioners have annexed a copy of the complaint as
Annexure-1 to the main petition. Opposite Party No. 2 has
filed a Counter-Affidavit annexing, inter alia, photocopies of
the Agreement dated 25.05.2017 along with sketch map
(Annexure-R/1), the legal notice (Annexure-R/2), the
previous order of this Court (Annexure-R/3), and the
Supreme Court remand order (Annexure-R/4). The pleadings
and annexures have been perused.
9. Submissions of the Petitioners
Learned counsel appearing for the petitioners
submitted that the present case is a textbook example of a
civil dispute between close family members being given an
unwarranted criminal colour. He pointed out that the
petitioners and Opposite Party No. 2 are related as nephews
and uncle, and the differences have arisen in the context of a
family partition and a mutual Agreement dated 25.05.2017
concerning development of land and construction of a joint
road.
It was strenuously argued that the allegations
contained in the complaint, even if taken on their face value,
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do not disclose the commission of any cognizable offence.
There is no material to suggest dishonest intention on the part
of the petitioners from the very inception of the Agreement so
as to attract Section 420 IPC. Similarly, the transfer of 2
kathas of land was made as per the terms of the Agreement
and cannot be construed as entrustment followed by criminal
misappropriation under Section 406 IPC. Learned counsel
emphasised that subsequent disputes regarding performance
of the contract, road width, possession, or alleged obstruction
are essentially civil in nature and ought to be adjudicated in
appropriate civil proceedings.
Further, it was contended that the impugned
cognizance order is mechanical, passed in a routine manner
without proper application of mind or reference to specific
materials establishing a prima facie case. Continuation of the
criminal proceeding, it was submitted, would result in undue
harassment to the petitioners and constitute a clear abuse of
the process of law. Accordingly, quashing of the entire
proceeding was prayed for.
10. Submissions of Opposite Party No. 2 and the
State
Learned counsel for Opposite Party No. 2, assisted
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by the learned Additional Public Prosecutor for the State,
opposed the petition and submitted that the petitioners had
fraudulently induced the elderly complainant to transfer 2
kathas of his valuable land under the Agreement dated
25.05.2017. After receiving the benefit and taking possession
of the land, the petitioners allegedly failed to fulfil their
obligation of constructing the agreed road, created
obstructions, threatened the complainant, broke the
demarcation pillars, and even demanded money.
It was argued that these acts clearly disclose the
ingredients of criminal breach of trust and cheating. The
solemn affirmation of the complainant and the deposition of
the enquiry witness, who was present at the time of the
Agreement, provide sufficient material to sustain the
cognizance order. Learned counsel submitted that the matter
cannot be brushed aside as purely civil when there is an
element of dishonest inducement and misappropriation. He
urged that the power under Section 482 CrPC should not be
exercised to stifle a legitimate prosecution at this stage,
especially when the Magistrate had applied his mind after
conducting an enquiry under Section 202 CrPC. Dismissal of
the application was accordingly prayed for.
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11. Judicial Principles on Quashing
The power under Section 482 CrPC, though wide,
must be exercised sparingly, cautiously, and in the rarest of
rare cases. The Hon’ble Supreme Court has consistently laid
down guidelines in this regard.
12. Landmark Guidelines
In State of Haryana v. Bhajan Lal, (1992) Supp (1)
SCC 335, the Hon’ble Supreme Court enumerated categories
of cases where the High Court may exercise inherent powers
to quash proceedings, including where the allegations do not
constitute any offence, where the complaint is mala fide or an
abuse of the process of law, or where the dispute is purely
civil in nature but given a criminal colour. The relevant
paragraphs 102 and 103 of the said judgment are reproduced
hereinbelow:
“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
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not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an 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.
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(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.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whim or caprice.”
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13. Civil Disputes Cloaked as Criminal
The Hon’ble Supreme Court has repeatedly
cautioned against prosecuting purely civil disputes under
criminal law. In Indian Oil Corporation Ltd. v. NEPC India
Ltd., (2006) 6 SCC 736, it was held that a breach of contract
does not give rise to criminal liability unless there is clear
evidence of dishonest or fraudulent intent from the very
beginning. The Court observed that the criminal machinery
cannot be set in motion merely to recover money or enforce
contractual obligations. The relevant paragraphs of the said
judgment are reproduced hereinbelow:
12. The principles relating to exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure to quash complaints and criminal
proceedings have been stated and reiterated by this
Court in several decisions. To mention a few–
Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC
(Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp
(1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj
v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995
SCC (Cri) 1059] , Central Bureau of Investigation v.
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Duncans Agro Industries Ltd. [(1996) 5 SCC 591 :
1996 SCC (Cri) 1045] , State of Bihar v. Rajendra
Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] ,
Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 :
1999 SCC (Cri) 401] , Medchl Chemicals & Pharma
(P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000
SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v.
State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri)
786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 :
2002 SCC (Cri) 19] and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 :
2005 SCC (Cri) 283] . The principles, relevant to our
purpose are:
(i) A complaint can be quashed where the allegations
made in 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 the case alleged
against the accused.
For this purpose, the complaint has to be examined as a
whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a meticulous
analysis of the material nor an assessment of the
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reliability or genuineness of the allegations in the
complaint, is warranted while examining prayer for
quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear
abuse of the process of the court, as when the criminal
proceeding is found to have been initiated with mala
fides/malice for wreaking vengeance or to cause harm, or
where the allegations are absurd and inherently
improbable.
(iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power
should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce
the legal ingredients of the offence alleged. If the
necessary factual foundation is laid in the complaint,
merely on the ground that a few ingredients have not been
stated in detail, the proceedings should not be quashed.
Quashing of the complaint is warranted only where the
complaint is so bereft of even the basic facts which are
absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil
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wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in civil
law, may also involve a criminal offence. As the nature
and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of contract,
for which a civil remedy is available or has been availed,
is not by itself a ground to quash the criminal
proceedings. The test is whether the allegations in the
complaint disclose a criminal offence or not.
13. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely
civil disputes into criminal cases. This is obviously on
account of a prevalent impression that civil law remedies
are time consuming and do not adequately protect the
interests of lenders/creditors. Such a tendency is seen in
several family disputes also, leading to irretrievable
breakdown of marriages/families. There is also an
impression that if a person could somehow be entangled
in a criminal prosecution, there is a likelihood of
imminent settlement. Any effort to settle civil disputes and
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claims, which do not involve any criminal offence, by
applying pressure through criminal prosecution should be
deprecated and discouraged. In G. Sagar Suri v. State of
U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court
observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence.
Criminal proceedings are not a short cut of other
remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For
the accused it is a serious matter. This Court has laid
certain principles on the basis of which the High Court is
to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to
prevent abuse of the process of any court or otherwise to
secure the ends of justice.”
14. While no one with a legitimate cause or grievance
should be prevented from seeking remedies available in
criminal law, a complainant who initiates or persists with
a prosecution, being fully aware that the criminal
proceedings are unwarranted and his remedy lies only in
civil law, should himself be made accountable, at the end
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of such misconceived criminal proceedings, in
accordance with law. One positive step that can be taken
by the courts, to curb unnecessary prosecutions and
harassment of innocent parties, is to exercise their power
under Section 250 CrPC more frequently, where they
discern malice or frivolousness or ulterior motives on the
part of the complainant. Be that as it may.
14. In R. Nagender Yadav v. State of Telangana,
(2023) 2 SCC 195, the Hon’ble Supreme Court recently
reiterated the same principles, and held that in situations when
a civil wrong is given a cloak of a criminal offence, the High
Court should quash such criminal proceedings to prevent the
abuse of process of court. The relevant paragraphs of the said
judgment are reproduced hereinbelow:
19. While exercising its jurisdiction under Section
482CrPC, the High Court has to be conscious that this
power is to be exercised sparingly and only for the
purpose of prevention of abuse of the process of the court
or otherwise to secure the ends of justice. Whether a
complaint discloses a criminal offence or not, depends
upon the nature of the act alleged thereunder. Whether
the essential ingredients of a criminal offence are present
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disclosing civil transaction may also have a criminal
texture. But the High Court must see whether the dispute
which is in substance of a civil nature is given a cloak of
a criminal offence. In such a situation, if civil remedy is
available and is in fact adopted, as has happened in the
case on hand, the High Court should have quashed the
criminal proceeding to prevent abuse of process of court.
15. Ingredients of Cheating and Criminal Breach of
Trust
In S.W. Palanitkar v. State of Bihar, (2002) 1 SCC
241 and subsequent decisions, the Hon’ble Supreme Court
expounded the difference in the ingredients required for
constituting of an offence of criminal breach of trust (Section
406 IPC) vis-Ã -vis the offence of cheating (Section 420). The
relevant paragraphs of the said judgment are reproduced
hereinbelow:
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
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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.
16. Recent judgments, such as in Delhi Race Club
(1940) Ltd. v. State of U.P., (2024) 10 SCC 690, the Hon’ble
Supreme Court has reiterated that Sections 406 and 420 IPC
cannot ordinarily co-exist on the same set of facts, as one
assumes initial lawful entrustment while the other requires
deception from the beginning. The relevant paragraphs of the
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said judgment are reproduced hereinbelow:
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.
38. In our view, the plain reading of the complaint fails to
spell out any of the aforesaid ingredients noted above. We
may only say, with a view to clear a serious
misconception of law in the mind of the police as well as
the courts below, that if it is a case of the complainant
that offence of criminal breach of trust as defined under
Section 405IPC, punishable under Section 406IPC, is
committed by the accused, then in the same breath it
cannot be said that the accused has also committed the
offence of cheating as defined and explained in Section
415IPC, punishable under Section 420IPC.
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
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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 :
1973 SCC (Cri) 1082] as under : (SCC p. 824, para 4)
“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 time he paid the
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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.”
40. To put it in other words, the case of cheating and
dishonest intention starts with the very inception of the
transaction. But in the case of criminal breach of trust, a
person who comes into possession of the movable
property and receives it legally, but illegally retains it or
converts it to his own use against the terms of the
contract, then the question is, in a case like this, whether
the retention is with dishonest intention or not, whether
the retention involves criminal breach of trust or only a
civil liability would depend upon the facts of each case.
17. Family and Property Disputes
In matters involving family partitions, land disputes,
or agreements for road/pathway construction, courts have
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consistently held that such issues are civil in nature unless
overwhelming criminality is demonstrated. The Hon’ble
Supreme Court in cases such as S.N. Vijayalakshmi v. State
of Karnataka, 2025 SCC OnLine SC 1575 has quashed
proceedings where property-related agreements were
converted into criminal cases without prima facie evidence of
fraud.
18. Post-Remand Consideration
Since the matter has been remanded by the Hon’ble
Supreme Court for fresh adjudication after hearing the
complainant, this Court is duty-bound to re-evaluate the entire
materials afresh while remaining guided by the above
principles. The power under Section 482 remains intact, and
the Court must examine whether a prima facie case is made
out or whether continuation would be an abuse of process.
19. Analysis and Discussion
Having heard learned counsel for the parties and
perused the materials on record, including the complaint, the
Agreement, the Counter-Affidavit, and the impugned order,
the Court now proceeds to examine whether the continuation
of the criminal proceeding is justified or whether it deserves
to be quashed in exercise of inherent powers under Section
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482 CrPC.
At the outset, it is evident that the genesis of the
dispute lies in a written Agreement dated 25.05.2017 executed
between Opposite Party No. 2 and the petitioners, who are his
nephews. The Agreement contemplated joint construction of
an access road in consideration of the transfer of 2 kathas of
land belonging to the complainant. Both parties acknowledge
the existence of this Agreement and the accompanying sketch
map. The core grievances, i.e., alleged failure to construct the
road as per specifications, obstruction of work, possession and
cultivation of the transferred land, and disputes over road
width, directly flow from the performance (or alleged non-
performance) of this contractual arrangement.
Such disputes, particularly when they arise in the
backdrop of a family partition and involve questions of right
of way, compensation, and interpretation of terms of an
agreement, are ordinarily civil in character. The law is well
settled that every breach of contract or every grievance
relating to property cannot be clothed with criminality unless
the necessary ingredients of the alleged offences are clearly
made out.
Turning to Section 420 IPC, the offence of cheating
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requires deception and dishonest inducement from the very
beginning of the transaction. In the present case, the 2 kathas
of land were transferred by Opposite Party No. 2 in pursuance
of a mutually executed Agreement. There is nothing on record
to suggest that the petitioners harboured dishonest intention
right from the inception and never intended to perform their
part. The differences between the parties appear to have
surfaced much later. Subsequent allegations of obstruction or
demands, even if taken as correct, do not establish the
foundational mens rea required for cheating. Mere failure to
fulfil contractual obligations does not ipso facto constitute an
offence under Section 420 IPC.
Similarly, for Section 406 IPC, the complainant must
demonstrate entrustment of property and its subsequent
dishonest misappropriation or conversion in violation of law
or contract. Here, the land was not entrusted for a specific
purpose in the nature of a trust; it was given as consideration
under the Agreement. The petitioners’ possession and
cultivation of the land, therefore, cannot readily be termed as
criminal misappropriation. At best, it raises questions of
breach of contract which are amenable to civil remedies.
The Court is conscious that Opposite Party No. 2 has
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also alleged threats, breaking of pillars, and police
connivance. While such allegations are serious, they remain
largely general and appear supplementary to the main
contractual dispute. In the absence of overwhelming material
establishing a clear criminal design, these do not alter the
fundamental civil nature of the controversy.
Furthermore, the impugned cognizance order dated
20.04.2021, though passed after an enquiry under Section 202
CrPC, is rather brief and does not contain detailed reasons
demonstrating how the materials on record satisfy the
ingredients of the offences charged. In proceedings under
Section 482 CrPC, the Court is entitled to scrutinise whether a
prima facie case is made out or whether the continuation
would be an abuse of process.
Considering the family relationship between the
parties and the fact that the dispute has its roots in a partition
and a bilateral Agreement, this Court is of the view that the
criminal proceeding is not the appropriate forum. Allowing it
to continue would not only cause undue harassment to the
petitioners but would also be contrary to the consistent
judicial pronouncements that criminal law should not be used
as a tool to settle civil disputes.
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20. Findings
In light of the foregoing analysis, this Court records
the following conclusions:
The dispute between the parties fundamentally arises
from a bilateral Agreement dated 25.05.2017 executed in the
context of family relations and land development. The
allegations primarily concern performance of contractual
obligations, interpretation of terms relating to the road,
possession of the transferred land, and subsequent differences
between close family members. Such issues are, by their very
nature, civil in character.
Even if the allegations made in the complaint are
accepted in their entirety, they do not disclose the essential
ingredients of the offences under Sections 406 and 420 IPC.
There is no material to establish dishonest intention on the
part of the petitioners from the inception of the Agreement,
which is a sine qua non for Section 420. Likewise, the transfer
of 2 kathas of land was made pursuant to the Agreement and
does not constitute entrustment in the criminal sense required
under Section 406 IPC. Subsequent disputes regarding road
construction or possession cannot be elevated to the level of
criminal breach of trust or cheating.
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the statement of the solitary enquiry witness, while
procedurally relevant, do not cure the fundamental defect that
the complaint essentially projects a civil dispute. The
impugned cognizance order dated 20.04.2021 is brief and
does not demonstrate detailed application of mind to the
ingredients of the offences.
The additional allegations of threats, obstruction, and
alleged police connivance, though serious on paper, remain
general in nature and appear to be intertwined with the main
contractual grievances. In the absence of overwhelming
evidence of criminality, they do not justify continuation of the
criminal prosecution.
Given the family background and the history of
partition, the present proceeding appears to be an attempt to
use criminal machinery to resolve what is essentially a civil
dispute. Such practice has consistently been deprecated by the
Hon’ble Supreme Court.
The order of remand by the Hon’ble Supreme Court
has been fully complied with by granting adequate hearing to
Opposite Party No. 2. However, on a fresh and independent
appreciation of the facts, law, and materials, this Court is
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would amount to an abuse of the process of law and would not
serve the ends of justice.
21. Conclusion
For the reasons discussed above, this Court is of the
considered opinion that the present application deserves to be
allowed.
Accordingly, the application under Section 482 CrPC
is allowed.
The order dated 20.04.2021 passed by the learned
Additional Chief Judicial Magistrate-III, Danapur, Patna,
taking cognizance under Sections 406 and 420 of the Indian
Penal Code in Complaint Case No. 251(C) of 2021, and all
consequential proceedings arising therefrom, are hereby
quashed.
Opposite Party No. 2 is at liberty to seek appropriate
civil remedies before the competent Civil Court in accordance
with law, if so advised. It is clarified that all observations
made in this judgment are for the limited purpose of deciding
the present application under Section 482 CrPC and shall not
influence the merits of any civil proceedings that may be
initiated or are pending between the parties.
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Let a copy of this judgment be forwarded to the
learned Court below for necessary compliance and record.
The application stands disposed of.
(Bibek Chaudhuri, J)
uttam/-
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