Accused not party to sale agreement or recipient of advance money, with only telephonic facilitation by co-accused, cannot face prosecution for cheating or criminal breach of trust absent dishonest intention at transaction's inception.

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 FIR of Deoghar (Town) P.S. Case No. 596 of 2023 registered for the offence punishable under Section 406 and 420 of the Indian Penal Code, pending in the court of C.J.M., Deoghar.

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.

4. The allegation against the petitioner is that the informant negotiated for purchase of a land with Amresh Kumar Singh and Amresh Kumar Singh facilitated the informant having conversation with the petitioner over phone. The further allegation is that though Amresh Kumar Singh has taken in total Rs. 26,00,000/- as advance for selling the land but he is not selling the land to the informant nor returning the money in terms of the agreement dated 25.08.2021.

5. It is submitted by the learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Ankur Gupta vs. State of U.P. & Anr. 2017 SCC OnLine SC 2023 that therein, in the facts of that case when the accused person is not a party to the transaction between the complainant and the co-accused person, the Hon’ble Supreme Court of India has observed that there is no reason as to why he should face the criminal trial and that too for the offences punishable under Section 406 and 420 of the Indian Penal Code. It is next submitted by the learned counsel for the petitioner that in this case also the admitted case of the informant is that the petitioner is not a party to the agreement to sell nor there is any allegation of payment of any money to the petitioner.

6. Learned counsel for the petitioner next relied upon the judgment of this Court in the case of Rakesh Kumar & Ors. vs. The State of Jharkhand & Anr. 2024:JHHC:34087 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Hridaya Ranjan Prasad Verma Vs. State of Bihar , (2000) 4 SCC 168, Para-15 of which reads as under:-

“15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. 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 fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” (Emphasis supplied)

wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

7. Learned counsel for the p