RAJESH SHAILESH KUMAR @ SHAILESH KUMAR RAJESH @ SHAILESH KUMAR vs State Of Bihar and Anr

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.49143 of 2016
CNR No. BRHC010462982016
Arising Out of PS. Case No.-1413 Year-2016 Thana- PATNA COMPLAINT CASE District-
Patna
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RAJESH SHAILESH KUMAR @ SHAILESH KUMAR RAJESH @
SHAILESH KUMAR S/o Late Rajeshwar Prasad Sinha, resident of Qtr. No.
A 40/2 Indira Enclave, Near IGNOU, NEBSARAI, New Delhi- 110068.
... ... Petitioner/s
Versus
1. State Of Bihar
2. Jai Prakash Singh S/o Late Deo Prasad Singh, R/o Vill.- New Etwarpur, P.S.-
Parsa Bazar, Distt.- Patna.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prashant Sinha, Adv.
Mr. Kumar Gangesh Gunjan, Adv.
For the State : Mr. Sri Anish Chandra, APP
For the O.P. No.2 : None
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CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
Date : 30-10-2026
This case was taken upon earlier on 09.10.2026,
but no one had appeared on behalf of O.P. No.2. Today, learned
counsel for the petitioner has submitted that he has made several
attempts to contact the learned counsel for the O.P. No.2 but
failed. As such, the present case is being heard in absence of the
counsel appearing for O.P. No.2.
2. Heard Mr. Prashant Sinha, learned counsel for
the petitioner and learned APP for the State.
3. The instant application has been filed for
quashing of the order dated 09.08.2016 passed by learned

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Judicial Magistrate-1st Class, Patna in Complaint Case No.1413
of 2016, whereby cognizance has been taken against the
petitioner under Sections 420 and 406 of Indian Penal Code (in
short ‘IPC’).
4. The short facts of the case arising out of the
complaint is that the elder brother of the son-in-law of the
complainant/O.P. No.2 asked for a loan of Rs.4 lakhs in total for
the purpose of construction of a house and the said money was
transferred in his account on 29.03.2014 and 07.11.2014 upon
bona fide belief on his assurance to repay the said amount
within a year. However, when the said payment was refused
after lapse of the stipulated period, a legal notice was sent to
him on 29.03.2016 but neither a reply was given nor the money
was returned, thereby indicating the intention of the accused
petitioner to misappropriate the money.
5. On the basis of the above allegations the
complaint petition was filed on 04.05.2016 under Sections 420
and 406 of the IPC and cognizance was taken under the
aforementioned sections by the impugned order dated
09.08.2016 and summons were issued thereunder.
6. Mr. Prashant Sinha, learned counsel for the
petitioner has submitted that the present prosecution against the

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petitioner is false and vexatious in nature and as a matter of fact
the same arises out of a family dispute between the daughter of
the O.P. No.2, Divya Bharti and her husband Kumar Saurabh
Sinha, who happens to be the younger brother of the petitioner.
7. It has been pointed out that prior to filing of the
present case, the daughter of the O.P. No.2 Divya Bharti had
filed a complaint case bearing Complaint Case No. 2131(c) of
2015 (Annexure-3) against the present petitioner and the entire
family members, including her husband on 09.06.2015 under
various provisions of the IPC, including Section 420 and 498A
of IPC. The subject matter of the present complaint, regarding
loan of Rs.4 lakhs for construction of house, also formed a part
of the allegations made in the earlier complaint, but by an order
dated 22.02.2016 (Annexure-2) passed by the learned SDJM,
Patna, cognizance was taken only against the husband of the
complainant Divya Bharti and that too, only under Sections
498A of IPC and Section 4 of the D.P. Act. The other family
members including the present petitioners were let off and thus,
the entire story of providing loan to the petitioner was virtually
disbelieved.
8. Learned counsel has contended that the O.P No.2
has deliberately suppressed the above mentioned facts relating

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to the earlier complaint in the present complaint petition, which
is clearly indicative of his malafide intention. After having
failed in securing a prosecution against other members of the
family and there being no cognizance under the provisions of
Section 420 and 406 of IPC, the present complaint came to be
filed after substantial lapse of time with oblique motives. It has
also been submitted that in any view of the matter, the
allegations do not constitute offences under Sections 420 and
406 of IPC and the case is mainly in the nature of an attempt to
make recovery of the alleged loan amount, for which criminal
prosecution cannot be used as a short cut method.
9. Further submission made in this regard is that
the amount of Rs.4 lakhs was only for the purposes of meeting
some expenditures for marriage of the petitioner’s younger
brother with the daughter of the O.P. No.2 which was due to be
solemnized on 01.12.2014 and the said money was spent upon
such expenses, including purchasing of ornaments etc. for the
daughter of the O.P. No.2. It is also a fact that the order dated
22.02.2016 passed in the earlier complaint case was never
challenged before any superior Court and has thus attained
finality, as such, the present case on same allegations which
have earlier been disbelieved, is not fit to be sustained and thus

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warrants an interference.
10. Per contra, learned APP for the State has
appeared and opposed the present application, in absence of the
counsel for the O.P. No.2, on the basis of allegations made in the
complaint and has submitted that there is no illegality with the
impugned order taking cognizance and thus, it may not be
interfered with.
11. I have heard the rival contentions of the parties
and have also perused the materials placed on record, including
the supplementary affidavit by which the statements of the
inquiry witnesses have also been brought on record.
12. The very narration of allegations made in the
present complaint reveal that an amount of Rs.4 lakhs was given
to the petitioner by way of loan for construction of house in
Delhi on an assurance to repay the said amount, and such
promise was not honored and the amount was not refunded. The
statement of the O.P. No.2 on S.A. is confined to the non-
payment of loan amount and there is virtually no allegation of
any intention of cheating or causing criminal breach of trust.
The inquiry witnesses are the daughter and son of the O.P. No.2
and their statements are also to the effect that money was
borrowed from their father by the petitioner which was not

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refunded. The daughter of the O.P. No.2, Divya Bharti, who was
the complainant in the earlier complaint bearing Complaint Case
No.2131(c) of 2016 dat ed 09.06.2016, has gone to the extent to
state that if they get the money, they would withdraw the case.
13. On the basis of the above mentioned
allegations, it is indisputably clear that the allegations amount to
a purely civil dispute between the parties and they are basically
in the nature of a proceeding to recover the loan amount. The
Hon’ble Supreme Court has clearly held in the case of Satish
Chandra vs. State of Gujarat reported in (2019) 9 SCC 148 that
in cases of dispute with regard to loan transaction between the
parties, merely the inability to return the said amount would not
give rise to prosecution for cheating or criminal breach of trust
unless fraudulent intention is indicated right from the inception.
Paragraph No.13 is being reproduced hereunder:
“ 13. …………. 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.”
14. In order to attract the provisions of 420 IPC, the

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ingredients of Section 415 IPC have to be satisfied i.e. a person
should be induced either fraudulently or dishonestly to deliver
any property to any person. It has been held by the Hon’ble
Supreme Court in the case of Deepak Gaba & Ors. vs. State of
U.P. & Anr. , reported in (2023) 3 SCC 423 that the sine qua non
of Section 415 IPC is “fraudulence”, “dishonesty”, or
“intentional inducement” and the absence of these elements
would debase the offence of cheating. The averments made in
the complaint, statement of complainant on S.A. and the
deposition of the enquiry witnesses do not indicate the
aforementioned elements, as such, the offence as alleged does
not appear to be made out against the petitioner.
15. This Court has also noted that the allegations
made in the present complaint were also the subject matter of
the earlier complaint made by daughter of O.P. No.2, as it
contained a specific allegation with respect to non-repayment of
loan amount and the concerned Court did not take cognizance of
that part of the allegation. The cognizance order dated
22.02.2016 passed in the earlier complaint discloses the fact that
after considering all the materials on record, including the
statement of the complainant Divya Bharti and statements of
enquiry witnesses, a prima facie case was found only under

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Section 498A of the IPC and Section 4 of the D.P. Act against
the husband of the complainant who is the son-in-law of O.P.
No.2. It has also been noticed by this Court that the said order
dated 22.02.2016 was never challenged before any superior
Court and thus had attained finality.
16. In the aforementioned backdrop, filing of the
present complaint is an apparent attempt by the O.P. No.2 to
anyhow launch a criminal prosecution against the petitioner on
false and frivolous allegations as he had been let off from the
said charges in the earlier complaint case. The malafide intent of
the O.P. No.2 is writ large as he is agitating the same allegations
against the petitioner in the present complaint, which have
already been disbelieved in the earlier complaint and he has
deliberately suppressed any reference to the earlier complaint in
the present complaint. This makes the present prosecution
totally vexatious converting it into a proceeding which is
maliciously instituted with an ulterior motive for wreaking
vengeance and with a view to spite him on account of an earlier
grudge, which is totally covered within the parameters of the
law laid down in the case of State of Haryana & Ors. vs. Ch.
Bhajan Lal & Ors. , reported in 1992 Supp (1) SCC 335 , for
invoking the power to exercise inherent jurisdiction under

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Section 482 Cr.P.C. on the basis of category (7) relating to
malafide prosecution.
17. Upon perusal of allegations, this Court would
also not hesitate to conclude that even if they are taken at face
value and accepted in their entirety, they do not prima facie
constitute any offence against the petitioner, once again bringing
the case within the ambit of category (1) of the case of Bhajan
Lal (supra) . The averments made in the complaint and the
statements of the enquiry witnesses merely indicate non-
repayment of loan amount of Rs.4 lakhs by the petitioner
without any fraudulent intention alleged, as such, these
allegations cannot form the basis of criminal prosecution. They
would at best be civil dispute between the parties which is being
given cloak of criminal offence and the Hon’ble Supreme Court
by way of several judicial pronouncements has deprecated this
practice of invoking the machinery of criminal Courts to settle
civil disputes. In the case of Urmila Devi & Ors. vs. Balram &
Anr. reported in 2025 SCCOnline SC 1574 , the Hon’ble
Supreme Court has clearly held that such kind of criminal
complaint, which are employed as a circuitous tool to abuse the
process of the law, especially after having failed to pursue the
remedies available to the complainant, ought to be quashed.

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Paragraph no.8.6 of the aforementioned judgment is being
quoted hereinbelow:
“8.6. It is writ large on the face of the
record that the complaint case has been
employed as a circuitous tool to abuse the
process of law, especially after the complainant
failed to pursue the remedies available to
him………………..”
18. Having considered the entire facts of the case
revealed by the documents placed on record, as also the law
settled by the Hon’ble Supreme Court in the aforementioned
judgments, as discussed in the foregoing paragraph, this Court is
of the considered opinion that the present case does not entail
any element of criminality and the criminal proceeding is
manifestly attended with malafide . The present prosecution is
squarely covered by the law laid down by the Hon’ble Supreme
Court in the case of Bhajan Lal (supra) , the allegations falling
within the parameters of category (1) and (7) of categories of
cases indicated in the said judgment wherein the inherent power
under Section 482 Cr.P.C. could be exercised either to prevent
the abuse of process of the Court or otherwise to secure the ends
of justice.
19. In such view of the matter, the impugned order
dated 09.08.2016 passed by learned Judicial Magistrate-1st

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Class, Patna in Complaint Case No.1413 of 2016 and the entire
prosecution arising therefrom, as against the petitioner, stands
quashed.
20. Accordingly, the present application is allowed.

(Soni Shrivastava, J)
Harsh/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 04.11.2026
Transmission Date 04.11.2026