Anil Kumar Choudhary, J
I.A. No.15909 of 2025
Heard the parties.
Learned counsel for the petitioner submits that this interlocutory application has been filed with the prayer for early hearing of the instant Cr.M.P.
Since, the hearing of instant Cr.M.P. is taken up today, hence, this interlocutory application stands disposed of being infructuous.
Cr.M.P. No.1617 of 2025
1. 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 a prayer to quash and set aside the order dated 12.03.2025 passed by learned Judicial Magistrate-1st Class-VI, Ranchi in connection with Complaint Case No.23893 of 2024 whereby and where under the learned Judicial Magistrate-1st Class-VI, Ranchi has found prima facie case for the offences punishable under Section 316(2) of the B.N.S., 2023 against the petitioner.
3. The allegation against the petitioner is that the petitioner took a friendly loan of Rs.10,20,000/- for treatment of his wife with a promise to return the same, but he did not return the same; even after the treatment of his wife was complete and subsequently also, the petitioner took Rs.1 lakh more by getting the same transferred to his account from the account of the Complainant through RTGS and the earlier payment was also transferred to account of the petitioner through RTGS from the account of the complainant. But the petitioner did not pay back any of the amount taken by him.
4. On the basis of the complaint, statement on solemn affirmation and the statement of the enquiry witnesses, the learned Judicial Magistrate-1st Class-VI, Ranchi has found prima facie case for the offences punishable under Section 316(2) of the B.N.S., 2023 against the petitioner.
5. Learned counsel for the petitioner submits that without giving any opportunity of being heard to the petitioner in terms of Section 223 of the B.N.S.S., 2023, the learned Judicial Magistrate-1st Class-VI, Ranchi has formed an opinion that there is sufficient material against the petitioner for having committed the offences punishable under Section 316(2) of the B.N.S., 2023 and prima facie case is made out for the said offence and passed the summoning order. It is next submitted that the complaint was filed on 16.08.2024 and the next date fixed was 03.09.2024 for which track report with Postal receipt was filed by the complainant with notice, but without any judicial order as well as without FIR before police, the enquiry witnesses was examined on 23.11.2024 and enquiry was closed on prayer of the complainant on the same date. It is next submitted that the petitioner received the notice and filed Vakalatnama on 08.10.2024. It is next submitted that on 18.01.2025, an application was filed for examination of the complainant and on the same date, the learned Trial Court allowed the examination of the complainant and the complainant was examined but the same was not in accordance with law. It is next submitted that dispute between the parties is purely a civil dispute. It is next submitted that the offence of criminal breach of trust punishable under Section 316(2) of the B.N.S., 2023 is not made out because the petitioner was not entrusted with any property and a loan for treatment although admitted cannot be termed as an entrustment, hence, the offence punishable under Section 316 (2) of the B.N.S., 2023 is not made out.
6. Learned counsel for the petitioner next relies upon the judgment of the Honble Delhi High Court in the case of Brand Protectors India Pvt. Ltd. vs. Anil Kumar reported in 2025:DHC:6044 and submits that, in that case, the Delhi High Court has taken note of the introduction of the provision in Section 223 of the B.N.S.S., 2023 to the effect that the Court after recording the statement of the complainant/witnesses give an opportunity of being heard to the accused before cognizance is taken.
7. Learned counsel for the petitioner next relies upon the judgment of High Court of Calcutta in the case of Tutu Ghosh vs. Enforcement Directorate with allied cases in C.R.R. No.2072 of 2025 and submits that in the facts of that case in para-73, when the cognizance of the offence was taken without providing the petitioner a pre-cognizance opportunity of hearing in violation of first proviso under Section 223(1) of the B.N.S.S., 2023 it was held that the same is vitiated in law and a nullity in the eye of law, hence, it is submitted that the prayer as prayed for in this Cr.M.P. be allowed.
8. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submit that since the petitioner admittedly was present before the trial court on 08.10.2024 and the summoning order was passed on 12.03.2025, hence, the petitioner has been given opportunity of being heard. It is then submitted by the learned counsel for the petitioner that the offence punishable under Section 316(2) of the B.N.S., 2023 is made out. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.
9. Having heard the rival 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 a settled principle of law as has been held by the Honble Supreme Court of India in the case of Satish Chandra Ratan Lal Shah vs. State of Gujarat & Anr. reported in (2019) 9 SCC 148, paragraph nos.11 and 13 of which reads as under:-
11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with Section 406 IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that Respondent 2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit which is still pending adjudication. The law clearly recognises a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment. (Emphasis supplied)
13. Now coming to the charge under Section 415 punishable under Section 420 IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] .) In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached Respondent 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, Respondent 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred. (Emphasis supplied)
Wherein the Honble Supreme Court of India has reiterated the settled principle of law that a mere breach of promise, agreement or contract does not, ipso facto, constitute the offence of criminal breach of trust; the punishment for which has been provided under Section 316(2) of B.N.S., 2023.
10. It is also a settled principle of law that mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction for which punishment has been provided for in Section 318(4) of the B.N.S., 2023.
11. Now coming to the facts of the case, there is absolutely no allegation against the petitioner of having any fraudulent or dishonest intention right at the beginning of the transaction rather the complainant not only paid the loan amount to the petitioner once, but subsequently, also he paid another sum of Rs.1 lakh.
12. Under such circumstances, this Court has no hesitation in holding that there is no material in the record to shows that the petitioner had any fraudulent or dishonest intention right at the beginning of the transaction between the parties. The loan amount taken by a person cannot be said to be an entrustment as the word entrusted has been used in Section 316 of the B.N.S., 2023.
13. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety still the offence punishable under Section 316(2) of the B.N.S., 2023 is not made out, therefore, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the order dated 12.03.2025 passed by learned Judicial Magistrate-1st Class-VI, Ranchi in connection with Complaint Case No.23893 of 2024, be quashed and set aside.
14. Accordingly, the order dated 12.03.2025 passed by learned Judicial Magistrate-1st Class-VI, Ranchi in connection with Complaint Case No.23893 of 2024, is quashed and set aside qua the petitioner only.
15. In the result, this Cr.M.P., stands allowed.
