To constitute cheating or criminal breach of trust, there must be deceit at inception or dishonest misappropriation; mere breach of contract without such elements does not attract IPC provisions.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with the prayer to quash the order dated 27.09.2018 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Complaint Case No. 343 of 2018, whereby and where under, the learned Judicial Magistrate 1st Class, Girdih has taken cognizance for the offence punishable under Section 406, 420/34 of the Indian Penal Code against the petitioners.

3. It is submitted by the learned counsel for the petitioners that the case is fixed for evidence before charge and the next date is fixed on 24.01.2026.

4. The brief fact of the case is that the petitioner no.1 is the brother of the opposite party no.2-complainant and the petitioner no.2 is the wife of petitioner no.1. The petitioner nos.1 and 2 were occupying the joint property of the opposite party no.2 and petitioner no.1. There was a panchayati where it was decided that upon taking Rs.50,000/- to the petitioner no.1 by the opposite party no.2, the petitioners will vacate the house and even though the complainant paid Rs.50,000/- to the petitioner no.1, the petitioners have not vacated the house.

5. Initially, the complainant filed Complaint Case No. 898 of 2017 which upon being referred to police under Section 156 (3) Cr.P.C., Bengabad P.S. Case No. 269 of 2017 was registered but police after investigation of the case found that the dispute between the parties is a civil dispute and did not send up the petitioners for trial; upon which the complainant filed complaint cum protest petition which was registered as Complaint Case No. 343 of 2018 by the learned Judicial Magistrate 1st Class, Giridih and basing upon the same, as well as the statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned Judicial Magistrate 1st Class, Giridih has taken cognizance of the offences punishable under Sections 406, 420/34 of the Indian Penal Code against the petitioners.

6. Learned counsel for the petitioners relied upon the judgment of this Court in the case ofVikash Kumar @ Bikash Kumar vs. The State of Jharkhand & Anr. dated 09.08.2023 in Cr.M.P. No. 860 of 2018 and submits that in that case, this Court relied upon the judgment of 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)

and therein the Hon’ble Supreme Court of India has held that every breach of contract does not give rise to the 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 then only the offence of cheating will be made out and if the intention to cheat has developed later on, the same cannot amount to cheating.

7. It is next submitted by the learned counsel for the petitioners that in that case this Court also relied upon the judgment of the Hon’ble Supreme Court of I