For charges of cheating under IPC, deception must exist from the inception of a transaction; mere allegations without evidence of intent or essential elements are insufficient to uphold criminal proceedings.

By the Court:-

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceedings in connection with Complaint Case No.684 of 2018 including the order dated 06.06.2016 passed by the learned Sub-Divisional Judicial Magistrate, Jamshedpur whereby and where under the learned Sub-Divisional Judicial Magistrate, Jamshedpur has found prima facie case against the petitioners for having committed the offences punishable under Sections 406 , 420, 504, 506 of the INDIAN PENAL CODE .

3. The brief facts of the case is that the petitioners entered into an agreement with the complainant for selling a flat and took advance of Rs.18,00,000/- in total and promised to give the complainant a flat within 24 months but they did not give the flat to the complainant and also did not reply to the legal notice and on 27.08.2016, when the complainant and her husband went to the house of the accused persons, they abused the complainant and her husband and also threatened to kill them. The complainant-informant filed Complaint Case No.825 of 2016 which upon being referred to Police under Section 156(3) of the Code of Criminal Procedure, Kadma P.S. Case No.144 of 2016 was registered and police took up investigation of the case and after investigation, police found the allegations against the petitioners are of civil nature and submitted Final Form and did not send up the petitioners for trial. The complaint-cum- protest petition was filed by the informant-complainant which was numbered as Complaint Case No.684 of 2018 and on the basis of the complaint, the statement on solemn affirmation of the complainant and the statement of the enquiry witnesses, the learned Sub-Divisional Judicial Magistrate, Jamshedpur found prima facie case for the offences punishable under Sections 406 , 420, 504, 506 of the INDIAN PENAL CODE against the petitioners.

4. Learned counsel for the petitioners relies upon the judgment of this Court in the case of Ganesh Pandey vs. The State of Jharkhand & Another passed in Cr.M.P. No.2255 of 2016, dated 08.07.2025 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, para-12 of which reads as under:-

“12. In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied)

and wherein it has been held that the amount paid towards consideration cannot be said to have been entrusted to the accused person by the complainant and merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. Hence, it is submitted that the offence punishable under Section 406 of the INDIAN PENAL CODE is not made out against the petitioners. It is next submitted that the dispute between the parties is at best a civil dispute and in the absence of any material available in the record to show that the petitioners