Brajesh Chand Vidhyarthi Alias Brajnesh Chandra Vidyaarthi Vs the State of Jharkhand

¶1

( 2025:JHHC:24069 )

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.285 of 2020

¶3

------

¶4

Brajesh Chand Vidhyarthi @ Brajesh Chandra Vidyaarthi, aged about 46 years, son of Chottan Prasad, resident of 205, Shivalaya Apartment, Kanke Road, P.O. & P.S.-Gonda, District-Ranchi.

¶5

Dhananjay Kumar Sinha, aged about 48 years, S/o Sidheshwar Prasad, resident of Qtr. No.CD-181, Sector-III, Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi.

¶6

Dr. Raj Kumar, aged about 52 years, S/o Late Laljee Choudhary, resident of Qtr. No.A/27, HEC Sector, P.O. & P.S.-Dhurwa, District-Ranchi.

¶7

… Petitioners

¶8

Versus

¶9

The State of Jharkhand, and

¶10

Prem Vardhan Prasad, son of Late Yogendra Prasad, the Secretary of DAV Public School, Dhurwa, resident of Argora Housing Colony, House No.H-72, P.O. & P.S.-Argora, District-Ranchi.

¶11

… Opposite Parties

¶12

------ For the Petitioners : Mr. Rahul Kumar, Advocate : Mr. Pratyay Bhaskar, Advocate ------

¶13

P R E S E N T

¶14

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶15

By the Court:- Heard the parties.

¶16

Though, notice has validly been served upon the opposite party no.2, yet no one turns up on behalf of the opposite party no.2 and State in spite of repeated calls.

¶17

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 and set aside the entire criminal proceeding initiated against the petitioners in connection with Complaint Case No.2008 of 2019

¶18

¶19

Cr. M.P. No.285 of 2020

¶20

( 2025:JHHC:24069 )

¶21

including the order dated 04.10.2019 passed by learned Judicial Magistrate-1^st Class, Ranchi by which the learned Judicial Magistrate-1^st Class, Ranchi has found prima facie case for the offences punishable under Sections 420/406 of the Indian Penal Code inter alia against the petitioners.

¶22

The allegation against the petitioners is that though the complainant is the Secretary of DAV Public School, Dhurwa, but the petitioners have captured the said school and prepared forged and fabricated registration papers by using illegal fabricated papers before the Registration Authority, without taking any permission from the Arya Samaj Head Office. It is the case of the complainant that inter alia the petitioners were appointed by Arya Samaj Head Office as member of Ad-hoc committee from 01.12.2010. The petitioners have committed embezzlement of Rs.3 to 4 Crores from the school fund.

¶23

On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of enquiry witnesses, the learned Judicial Magistrate-1^st Class, Ranchi has found prima facie case inter alia against the petitioners for having committed the offences punishable under Sections 420/406 of the Indian Penal Code, vide order dated 04.10.2019 in Complaint Case No.2008 of 2019.

¶24

Learned counsel for the petitioners submit that the allegations against the petitioners are false. It is next submitted that the complainant has been setup by Indradeo Shastri, who earlier filed Dhurwa P.S. Case No.93 of 2015 on the allegation of misappropriation and fraudulent withdrawal of Rs.5,42,502/from the accounts of DAV Public School, Dhurwa and for which the FIR being Hatia P.S. Case No.21 of 2002 was registered against Sanjay Mishra and Treta Nath and during the investigation of the case, police also found the 2 Cr. M.P. No.285 of 2020

¶25

( 2025:JHHC:24069 )

¶26

involvement of Mithilesh Kumar Verma. On the basis of the complaint of District Education Office cum Receiver of this school, Dhurwa P.S. Case No.08 of 2004 was registered and police submitted charge sheet in that case against Indradeo Prasad Verma. It is next submitted that the Arya Pratinidhi Sabha, Jharkhand had dissolved the previous committee running the Arya Samaj and the school and has reconstituted the same. It is next submitted that under the new committee, the petitioner no.1 is the Secretary of the committee and the Sub-Divisional Officer has handed over the management of the school to the newly constituted committee. It is next submitted that, since, the Arya Samaj, Dhurwa was earlier registered with the erstwhile State of Bihar, it was decided to register the Arya Samaj, Dhurwa with the State of Jharkhand and the same has been registered. It is next submitted that the said registration was also necessitated because of the Right to Education Act. It is next submitted that though Indradeo Prasad Verma has superannuated in the year 2008, but he has not vacated his quarter situated in the school campus. It is next submitted that Indradeo Prasad Verma, Mithilesh Kumar Verma and others threatened the Principal of DAV Public School, Dhurwa and in this connection Dhurwa P.S. Case No.131 of 2011 has been registered. It is next submitted that the President of the Committee has also lodged FIR vide Dhurwa P.S. Case No.144 of 2011 against Indradeo Prasad Verma and Mithilesh Kumar Verma and police submitted charge sheet in that case against Indradeo Prasad Verma and Mithilesh Kumar Verma. It is next submitted that though, the rival faction of Arya Samaj submitted an application to the Inspector General of Registration, Ranchi for deregistering the Arya Samaj, Dhurwa Society, but no adverse order was passed. The complainant filed W.P(C). Case No.2633 of 2012 challenging

¶27

3 Cr. M.P. No.285 of 2020

¶28

( 2025:JHHC:24069 )

¶29

the registration and constitution of the Managing Committee, but the same was dismissed. It is next submitted that Mithilesh Kumar Verma, claiming himself to be the son of the founder of the Arya Samaj, Dhurwa lodged complaint case, being C.P. Case No.1761 of 2012 against the members of the Managing Committee, but the same was quashed by the co-ordinate bench of this Court by common judgment dated 14.03.2023 passed in Cr.M.P. No.1109 of 2013 in the case of Dhananjay Kumar Sinha & Another vs. The State of Jharkhand and Another with allied cases.

¶30

Learned counsel for the petitioners next submitted that the petitioners have been appointed after due process of election. It is next submitted that Indradeo Shastri filed Protest-cum-Complaint Case No.1495 of 2017 before the learned Judicial Magistrate-1^st Class, Ranchi and the learned Judicial Magistrate-1^st Class, Ranchi has found prima facie case for the offences punishable under Sections 417/504/506/34 of the Indian Penal Code, but the petitioners have challenged the same by filing the Cr.M.P. No.4384 of 2018. It is next submitted that even if the allegations made against the petitioners are considered to be true in their entirety, still neither the offence punishable under Section 420 nor under Section 406 of the Indian Penal Code is made out.

¶31

Learned counsel for the petitioners relying upon the judgment of the Hon’ble Supreme Court of India in the case of Krishna Lal Chawla and Others vs. State of Uttar Pradesh and Another reported in (2021) 5 SCC 435; submits that the Hon’ble Supreme Court of India therein observed that the Trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused persons in

¶32

4 Cr. M.P. No.285 of 2020

¶33

( 2025:JHHC:24069 )

¶34

fit cases. It is next submitted that the registration was made in the year 2011 and the complaint was filed after about 7 years in 2018.

¶35

Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Haji Iqbal alias Bala through S.P.O.A. vs. State of Uttar Pradesh and Others reported in (2023) 20 SCC 209 and submits that the Hon’ble Supreme Court of India in that case has observed that in frivolous and vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines.

¶36

Learned counsel for the petitioners then relies upon the judgment of the Hon’ble Supreme Court of India in the case of Rikhab Birani and Another vs. State of Uttar Pradesh and Another reported in 2025 SCC OnLine SC 823 and submits that therein the Hon’ble Supreme Court of India has considered that the prevalent impression that civil remedies, being time-consuming, do not adequately protect the interests of creditors or lenders should be discouraged and rejected as criminal procedure cannot be used to apply pressure. It is next submitted that in para-17 of that case, it has been observed by the Hon’ble Supreme Court of India that the offences of criminal breach of trust and cheating being antithetical in nature cannot coexist simultaneously.

¶37

Learned counsel for the petitioners further relies upon the judgment of this Court in the case of Lakshmi Gope @ Laxmi Gope vs. The State of Jharkhand and Another reported in 2024 JHHC 8858 and submits that in that case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Deepak Gaba & Others vs. State of Uttar Pradesh &

¶38

5 Cr. M.P. No.285 of 2020

¶39

( 2025:JHHC:24069 )

¶40

Another reported in (2023) 3 SCC 423 wherein the Hon’ble Supreme Court of India has observed that the summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It is next submitted that in para-9 of that judgement, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360 paragraph-13 of which reads as under:-

¶41

“13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court.” (Emphasis supplied)

¶42

and submits that unless there is a deception played by petitioners since

¶43

the beginning of the transaction, the offence of cheating punishable under Section 420 of the India Penal Code is not made out.

¶44

Learned counsel for the petitioners lastly relies upon the judgment of this

¶45

Court in the case of Rajendra Prasad Singh & Others vs. The State of Jharkhand & Another reported in 2024 JHHC 16467 and submits that therein

¶46

¶47

Cr. M.P. No.285 of 2020

¶48

( 2025:JHHC:24069 )

¶49

this Court has taken note of the judgment of Hon’ble Supreme Court of India in the case of MNG Bharateesh Reddy Vs. Ramesh Ranganathan and Another , reported in (2022) SCC Online SC 1061 , para -21, 23 to 24 of which reads as

¶50

under:-

¶51

21. The offence of criminal breach of trust contains two ingredients: (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it.

¶52

23. In Vijay Kumar Ghai v. State of West Bengal7 another two-judge bench held that entrustment of property is pivotal to constitute an offence under section 405 of the IPC. The relevant extract reads as follows:

¶53

“28. “Entrustment” of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, “in any manner entrusted with property”. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of “trust”. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.”

¶54

24. None of the ingredients of the offence of criminal breach of trust have been demonstrated on the allegations in the complaint as they stand. The first respondent alleges that the Appellant caused breach of trust by issuing grossly irregular bills, which adversely affected his professional fees. However, an alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment. No element of entrustment has been prima facie established based on the facts and circumstances of the present matter. Therefore, the ingredients of the offence of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands.

¶55

and submits that, as none of the ingredients of criminal breach of trust is

¶56

made out against the petitioners even if the allegations made against the petitioners are considered to be true in their entirety, hence, the prayer as prayed for in this Cr.M.P., be allowed.

¶57

¶58

Cr. M.P. No.285 of 2020

¶59

( 2025:JHHC:24069 )

¶60

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 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 as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in

¶61

(2005) 10 SCC 336 paragraph-6 of which reads as under:-

¶62

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)

¶63

and submits that a sine qua non to constitute the offence of cheating is playing deception since the beginning of the transaction between the parties.

¶64

So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, there is no allegation against the petitioners of deceiving anybody nor there is any allegation of petitioners of inducing anybody, so deceived, to part with any property. Therefore, in the absence of the same, this Court is of the considered view that even if the allegations against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of Indian Penal Code is not made out.

¶65

So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, it is a settled principle of law that to make out a case of

¶66

8 Cr. M.P. No.285 of 2020

¶67

( 2025:JHHC:24069 )

¶68

criminal breach of trust, it is not sufficient to show that money has been retained by the accused persons. It must also be shown that the accused person dishonestly disposed of the same in some way or dishonestly retained the same; as has been reiterated by the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:-

¶69

“18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied)

¶70

Now, coming to the facts of the case, there is no allegation of any entrustment of the property to the petitioner, the allegation of misappropriation is vague. There is no basis upon which such misappropriation has been made nor is there any specific details, as to and in what manner the petitioners have misappropriated how much of money, he has misappropriated. Under such circumstances, this Court is of the considered view that even if the allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of Indian Penal Code is not made out.

¶71

¶72

Cr. M.P. No.285 of 2020

¶73

( 2025:JHHC:24069 )

¶74

In view of the discussions made above and in view of the series of the litigation between the parties, this Court is of the considered view that, since even if the allegations made against the petitioners are considered to be true in their entirety, neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding initiated against the petitioners in connection with Complaint Case No.2008 of 2019 including the order dated 04.10.2019 passed by learned Judicial Magistrate-1^st Class, Ranchi, be quashed and set aside.

¶75

Accordingly, the entire criminal proceeding initiated against the petitioners in connection with Complaint Case No.2008 of 2019 including the order dated 04.10.2019 passed by learned Judicial Magistrate-1^st Class, Ranchi, is quashed and set aside.

¶76