SANJAY KUMAR TULSYAN ALIAS SANJAY KUMAR ALIAS SANJAY KUMAR TULSIYAN vs THE STATE OF JHARKHAND
- Court
- Jharkhand High Court
[2026:JHHC:26334]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.690 of 2025
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1. Sanjay Kumar Tulsyan @ Sanjay Kumar @ Sanjay Kumar
Tulsiyan, aged about 58 years, son of Late Meghraj Tulsyan
2. Shobha Tulsyan, aged about 50 years, wife of Sanjay
Kumar Tulsyan and Daughter of Jagdish Prasad Goyal.
Both resident of Meghraj Tower, Bara Gamharia, Post
Gamharia, Police Station Adityapur, District Seraikella
Kharsawan
… Petitioners
Versus
1. The State of Jharkhand
2. Ritu Diwan, wife of Sri. Yogesh Diwan, resident of Bara
Gamharia, Near IDBI Bank, Post Gamharia, Police Station
Adityapur, District Seraikella Kharsawan.
…
Opposite Parties
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For the Petitioners : Mr. Abhishek Kumar Dubey, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
For the O.P. No.2 : Mr. Ashish Kumar, Advocate
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P R E S E N T
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- I.A. No.12229 of 2026
1. Heard the parties.
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2. Learned counsel for the petitioners submits that this interlocutory
application has been filed for early hearing of this Criminal
Miscellaneous Petition.
3. Since the hearing of this Criminal Miscellaneous Petition is being
taken up today, hence, this interlocutory application is disposed of
being infructuous.
(Anil Kumar Choudhary, J . )
Cr.M.P. No.690 of 2025
1. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 with the prayer to set aside the entire criminal
proceedings in connection with Complaint Case No. 1426 of 2023
including the order dated 22.02.2024 passed by the learned Additional
Chief Judicial Magistrate, Seraikella in the said case whereby and where
under the learned Additional Chief Judicial Magistrate, Seraikella has
found prima facie case for the offences punishable under Sections 420,
406 of the Indian Penal Code and passed summoning order.
2. The allegation against the petitioners is that the petitioner No.1 in
the year 2002, took Rs.60,000/- for selling his land but did not give the
said land and later on, sold the same land to his wife; who is the
petitioner No.2 herein, in the year 2015.
3. On the basis of the complaint, the statement on solemn
affirmation of the complainant and the statement of the inquiry
witnesses, the learned Additional Chief Judicial Magistrate, Seraikella
has found prima facie case for the offences as already indicated above.
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4. Learned counsel for the petitioners relies upon the judgment of
the Hon’ble Supreme Court of India in the case of Gurukanwarpal
Kirpal Singh vs. Surya Prakasam & Others reported in 2022 LiveLaw
(SC) 519 and submits that therein, the Hon’ble Supreme Court of India
relied upon its own judgment in the case of Dalip Kaur & Others vs.
Jagnar Singh & Another reported in (2009) 14 SCC 696 , wherein the
Hon’ble Supreme Court of India has observed that if the dispute
between the parties is essentially a civil dispute resulting from a breach
of contract on the part of the accused person by non-refunding the
amount of advance, the same would not constitute the offence of
cheating.
5. Learned counsel for the petitioners next submits that even if the
entire allegations made against the petitioners are considered to be true
in their entirety, still no offence is made out against the petitioners as
the amount paid towards consideration of a sale cannot be termed as
money ‘entrusted’ as the word ‘entrusted’ has been used in Section 405
of the Indian Penal Code; for which, the punishment has been provided
for in Section 406 of the Indian Penal Code. It is further submitted that
there is no allegation against the petitioners that the petitioners played
deception since the beginning of the transaction between the parties;
hence, in the absence of the same, the offence of cheating is not made
out against the petitioners. It is, therefore, submitted that the prayer as
prayed for in this Criminal Miscellaneous Petition be allowed.
6. Learned Spl.P.P. appearing for the State and the learned counsel
for the opposite party No.2 on the other hand vehemently oppose the
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prayer of the petitioners made in this Criminal Miscellaneous Petition
and submit that if the entire allegations made against the petitioners are
considered to be true in their entirety, then both the offences punishable
under Section 420 of the Indian Penal Code as well as Section 406 of the
Indian Penal Code is made out against the petitioners. Hence, it is
submitted that this Criminal Miscellaneous Petition, being without any
merit be dismissed.
7. 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 as has
been reiterated by the Hon'ble Supreme Court of India in the case of
Uma Shankar Gopalika vs. State of Bihar & Another 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)
that in order to constitute the offence of cheating, the accused
must play deception since the beginning of the transaction between the
parties and if the intention to cheat has developed later on, the same
will not amount to cheating.
8. Now coming to the facts of the case, the undisputed fact remains
that there is absolutely no allegation against the petitioners of playing
deception since the beginning of the transaction between the parties
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which admittedly took place in the year 2002. The sale of the said land
by the petitioner No.1 to the petitioner No.2 admittedly took place in
the year 2015. Under such circumstances, this Court is of the considered
view that even if the entire allegations made against the petitioners are
considered to be true in their entirety, then the offence punishable
under Section 420 of the Indian Penal Code is not made out against the
petitioners.
9. So far as the offence punishable under Section 406 of the Indian
Penal Code is concerned, it is a settled principle of law as has been held
by the Hon’ble Supreme Court of India in the case of Radheyshyam &
Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine
SC 2311 paragraph-12 of which reads as under:-
“ 12 . In the present case, the appellants were not entrusted
with any property by respondent no. 2 - complainant. The
only delivery made was of part payment towards an
Agreement to Sell between the parties. The amount paid
towards consideration cannot be said to have been entrusted
with the appellants by respondent no. 2. Additionally,
merely because the appellants are refusing to register the
sale, it does not amount to misappropriation of the advance
payment. Since there was no entrustment of property, the
offence of misappropriation of such property and thereby
criminal breach of trust cannot be said to be made out.”
(Emphasis supplied)
that the money paid as an advance payment cannot be termed as
property entrusted as the word ‘entrusted’ has been used under Section
405 of the Indian Penal Code; for which, the punishment has been
provided for in Section 406 of the Indian Penal Code.
10. Here the only money paid by the complainant is towards
consideration of the land to be sold by the petitioner No.1 to the
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complainant. Hence, it cannot be said that there is any allegation
against the petitioners of any entrustment of money nor is there any
allegation of dishonest misappropriation of any entrusted property
against the petitioners; merely because the petitioner no.1 did not
execute any sale deed in respect of the property. Under such
circumstances, this Court is of the considered view that even if the
entire allegations made against the petitioners are considered to be true
in their entirety, still the offence punishable under Section 406 of the
Indian Penal Code is not made out against the petitioners.
11. In view of the discussions made above, as 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
against the petitioners, even if the entire allegations against them are
considered to be true, in their entirety; therefore, the continuation of the
criminal proceeding against the petitioners will amount to abuse of
process of law. Hence, this Court is of the considered view that this is a
fit case where the entire criminal proceedings in connection with
Complaint Case No. 1426 of 2023 including the order dated 22.02.2024
passed by the learned Additional Chief Judicial Magistrate, Seraikella in
the said case, be quashed and set aside against the petitioners named
above.
12. Accordingly, the entire criminal proceedings in connection with
Complaint Case No. 1426 of 2023 including the order dated 22.02.2024
passed by the learned Additional Chief Judicial Magistrate, Seraikella in
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the said case, is quashed and set aside against the petitioners named
above.
13. In the result, this Criminal Miscellaneous Petition is allowed.
(Anil Kumar Choudhary, J . )
High Court of Jharkhand, Ranchi
st
Dated the 01 of September, 2026
AFR/ Saroj
Uploaded on 02/09/2026
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