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Patna High Court – Orders
Bishwanath Singh @ Vishwanath Singh vs The State Of Bihar on 1 July, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1222 of 2022
Arising Out of PS. Case No.-322 Year-2022 Thana- AURANGABAD TOWN District-
Aurangabad
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1. Bishwanath Singh @ Vishwanath Singh Son of Late Lal Bihari Singh R/V-
Rambandh, PO- Aurangabad, P.S- Aurangabad (M) Dist- Aurangabad Bihar
Pin- 824101 at present residing at Holding No. 179, Ward No. 12, Tikri
Road, Aurangabad Bihar-824101
2. Santosh Kumar Singh Son of Sri Bishwanath Singh R/V- Rambandh, P.O-
Aurangabad, P.S- Aurangabad (M) Dist- Aurangabad Bihar Pin- 824101, at
present residing at 5C, Samrudhhi Bright Homes, Kundalahalli, Nr. Ryan
International School, Bangaluru- 560037, Karnataka
3. Uttam Kumar Singh Son of Sri Bishwanath Singh R/V- Rambandh, PO-
Aurangabad, P.S- Aurangabad (M), Dist- Aurangabad Bihar, Pin- 824101, at
present residing at Holding No. 179, Ward No. 12, Tikri Road, Aurangabad
Bihar-824101
4. Gautam Kumar Singh Son of Sri Bishwanath Singh R/V- Rambandh, PO-
Aurangabad, P.S- Aurangabad (M) Dist- Aurangabad Bihar, Pin- 824101, at
present residing at Quarter No. H11/03, CTJW College, Singarbhat, Shakti
Aawasiya Parisar, Kanker, Chhattingarh, NH- 30, Pin- 494334
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Home Department, Govt. of Bihar, Old Secretariat,
Bihar, Patna- 800001 Bihar
3. The Inspector General of Police, Magadh Range, Gaya
4. The Superintendent of Police, Aurangabad, Bihar
5. The Dy. Superintendent of Police, Aurangabad, Bihar
6. The Sub- Divisional Police Officer, Aurangabad, Bihar
7. The Station House Office Police Station- Aurangabad, Bihar 824101 Bihar
8. Ajit Kumar Singh Son of Late Dhirendra Singh Residentof Bypass Chowk,
Aurangabad P.S- Aurangabad (Nagar), Dist-Aurangabad (Bihar)
9. Amit Kumar Singh @ Amit Kumar Mishra Son of Late Arvind Mishra
Resident of Byepass Chowk, Aurangabad Police Station, Aurangabad
(Bihar)
10. Upendra Kumar Singh Son of Late Ganga Singh Resident of Byepass
Patna High Court CR. WJC No.1222 of 2022(6) dt.01-07-2025
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Chowk, Aurangabad Police Station, Aurangabad (Bihar)
11. Jagannath Singh Son of Late Lal Bihari Singh R/V- Rambandh, P.O-
Aurangabad, P.s- Aurangabad (M), Dist- Aurangabad (Bihar), Pin - 824101
12. Baijnath Singh Son of Late Lal Bihari Singh R/V- Rambandh, P.O-
Aurangabad, P.S- Aurangabad (M), Dist- Aurangabad Bihar, Pin- 824101
13. Ajay Kumar Singh S/O Late Lal Bihari Singh Resident of Village-
Rambandh, P.O.- Aurangabad, P.S.- Aurangabad, District- Aurangabad
(Bihar), Pin-824101
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Niranjan Kumar, Advocate
For the State : Mr.Sheo Shankar Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
6 01-07-2025
Heard learned counsel for the petitioners; learned
counsel for the State and learned counsel for the respondent nos.
8 to 13.
2. The petitioners have moved the Court for the
following reliefs:
“(i) Issuance of an appropriate writ in the
nature of certiorari or any other writ, order or direction
as may be deemed appropriate by this Hon’ble Court to
quash the F.I.R. bearing Aurangabad Nagar P.S. Case
No. 322/22 dated 02.06.2022 (Annexure 5) registered
against the petitioners under Section 406, 420, 504,
506/34 of Indian Penal Code on the basis of typed
application of respondent no. 8 who in collusion with
respondent no. 9 to 13 hatched a conspiracy and made a
false and concocted story in his such typed application
Patna High Court CR. WJC No.1222 of 2022(6) dt.01-07-2025
3/16with sole intention to grab the ancestral property of the
petitioners involving them in criminal case and taking
shelter of such F.I.R. (Annexure – 5)
(ii) Issuance of an appropriate direction
commanding the concern respondent authority not to take
any coercive action against the petitioners on the basis of
F.I.R. bearing Aurangabad Nagar P.S. Case No. 322/22
dated 02.06.2022 (Annexure – 5).”
3. The petitioner no.1 and respondent no. 11, 12 and
13 are own brothers. The learned counsel for the petitioners has
brought the relevant factual background of the case and
submitted that one Kesho Singh who was the grandfather of the
present petitioner no.1 as well as respondent no. 11, 12 and 13.
The aforesaid Kesho Singh had three sons namely Raj Bihari
Singh, Lal Bihari Singh and Krishna Bihari Singh. The three
sons of Kesho Singh got separated through partition Suit No.
252 of 1996 and consequently Lal Bihari Singh got the 1/3rd
property share. Lal Bihari Singh in turn had four sons i.e., (1)
Jagarnath Singh @ Jagannath Singh, arrayed as respondent
no.11 and elder brother of petitioner no. 1; (2) Bishwanath
Singh @ Vishwanath Singh, present petitioner no.1; (3) Baijnath
Singh, respondent no. 12 and younger brother of petitioner no.1,
and (4) Ajay Singh @ Ajay Kumar Singh, respondent no.13 and
Patna High Court CR. WJC No.1222 of 2022(6) dt.01-07-2025
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younger brother of petitioner no.1.
4. The learned counsel appearing for the petitioners
submits that the four sons of Late Lal Bihari Singh after the
death of their father became equal share-holders in the property
inherited by their late father.
5. The learned counsel for the petitioners has next
submitted that the informant of Aurangabad Nagar P.S. Case No.
322 of 2022 is one Ajit Kumar Singh. It has been alleged by the
informant that he had entered into an agreement with the
accused persons for purchasing 38 decimals of land and an
agreement for sale was prepared, in connection thereto an
advance was also paid to the petitioners. It is alleged by the
informant that after the agreement for sale was executed and the
part payment was made, the parties have refused to execute the
sale deed and furthermore that when the informant went to
request for the refund of the advanced amount, the petitioners
had abused and threatened the informant.
6. Learned counsel for the petitioners submits that
the petitioner no. 1 is a Senior Mining Sardar is Bishrampur
Coal Field, Surajpur, Chhattisgarh. The petitioner no. 2 is
employed in Lenovo (India) Pvt. Ltd. and working as Options
Business Development Manage (BDM). The petitioner no. 3 is a
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businessman and petitioner no. 4 is working in Chhattisgarh
Armed Force as Head Constable.
7. The respondent nos. 11 to 13 are own brothers of
petitioner no. 1. Respondent no. 11 is elder brother of the
petitioner no. 1 and has retired from service and owns a house in
Roorkee, Uttarakhand. Respondent no. 12 and 13 are younger
brothers of the petitioner no. 1. Respondent no. 12 is also a
retired person and has his own house in Bengaluru (Karnataka)
and Mumbai (Maharashtra). Respondent no. 13 also owns a
house in Nashik (Maharashtra).
8. The petitioner no. 1 and respondent no. 11 to 13,
besides joint cultivated land also has an ancestral house in
village Ramabanth, Aurangabad (Bihar), where the petitioner
no. 3 had been living with his family. The petitioner no. 1 and
respondent no. 11 to 13 used to stay in the house at Ramabandh,
when they came to Aurangabad (Bihar). The petitioner no. 1
after his retirement, shifted from Bishrampur, Surajpur
(Chhattisgarh) to Aurangabad (Bihar) in January 2008 and
started living in the ancestral house at Ramabandh, Aurangabad
(Bihar) with petitioner no. 3. The respondent no. 11 to 13 also
live at the Ramabandh, Aurangabad in ancestral house, when
they came from Roorkee, Mumbai and Nashik for settlement of
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their ancestral property.
9. The respondent no. 11 to 13 are residing outside
the State of Bihar and they had come to Ramabandh,
Aurangabad, Bihar only for the purpose of selling the ancestral
property situated at Mauza-Ramabandh bearing Khata No. 25,
Plot No. 209, 210, 211, 212. They stayed in their ancestral house
at Village-Ramabandh Aurangabad, Bihar where the petitioner
no. 1 and petitioner no. 3 were also living with their family.
10. The respondent no. 11 to 13, who are own
brothers of petitioner no. 1 came to Aurangabad, Bihar in
December 2021 for selling the property in question situated at
Mauza-Ramabandh and consulted with petitioner no. 1 and
expressed their desire to sell-off the property. However, the
petitioner no. 1 denied and clearly told them that he is not in
favour to selling off the property. The petitioner no. 1 also told
the respondent no. 11 to 13 that if they have decided to sell-off
the property then first of all, they would have to partition all
ancestral property. But the respondent no. 11 to 13 refused for
partition.
11. The learned counsel for the petitioners has further
submitted that the petitioner no. 1 has also constructed a house
situated at holding no. 179, ward no. 12, Tikri Road,
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Aurangabad (Bihar). When the respondent no. 11 to 13 started
exerting pressure on petitioner no. 1 for selling the land situated
at Mauza-Ramabandh, the petitioner no. 1 and 3 with their
family left the ancestral house at Ramabandh, Aurangabad and
shifted to the house situated at holding no. 179, Ward No. 12,
Tikri Road, Aurangabad, Bihar.
12. The learned counsel appearing on behalf of
the petitioners have also submitted that a Partition Suit No. 22
of 2022 (titled Vishwanath Singh vs. Jagarnath Singh and
others) is pending and the land in question here are also part of
the partition suit.
13. Learned counsel for the petitioners has
pointed that from the bare perusal of F.I.R., it is evident that the
name of respondent no. 12, who is also one of the four brothers,
does not appear among the persons, i.e., petitioner no. 1
respondent no. 11 and respondent 13, who are alleged to have
taken money from the informant, in lieu of selling the plot.
14. It is further submitted that though the
informant, arrayed as respondent no. 8, herein, alleged that he
along with respondent no. 9 and 10 had given the alleged sum of
money to the petitioner no. 1, but they have not disclosed this
fact that who is the purchaser of the land, since the land situated
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at Mauza-Ramabandh bearing Khata No. 25, Plot No. 209, 210,
211, 212, measuring 38 Decimal has a market value of more
than Rs. 04 Crores, which is beyond the means of respondent
no. 8 to 10.
15. It is submitted by the learned counsel for the
petitioners that the true fact is that the respondent nos. 8 to 10
are land brokers and are involved in multiple criminal cases in
respect of fraudulent activities. The real name of respondent no.
9 is Amit Kumar Mishra, son of Late Arvind Mishra not Amit
Kumar Singh. The respondent no. 8 intentionally and knowingly
gave the name of respondent no. 9 as Amit Kumar Singh in
place of Amit Kumar Mihsra without disclosing the name of his
father.
16. The learned counsel for the petitioners has
emphasised that, it is therefore apparent from the aforesaid facts
and circumstances that the prosecution is completely malafide,
untenable and solely intended to harass the petitioners. The
respondent no. 8 has wrongly made allegation against the
petitioners in the F.I.R. on the basis of false and concocted story.
It is further emphasised by the learned counsel for the
petitioners that the attempt of the respondent no. 8 against the
petitioners is primarily and purely of civil action. It is also
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pointed by the learned counsel that the petitioner no. 1 that the
alleged land property of Khata no. 25, Plot No. 209, 210, 211
and 212 as suit property in the partition suit no. 022 of 2022
(Vishwanath Singh Vs. Jagarnath Singh and others) which was
filed on 15.01.2022, that is, much before the lodging of the
present F.I.R. which was lodged only on 02.06.2022.
17. The learned counsel for the petitioners has
reiterated that the entire dispute is purely contractual / civil in
nature, however, the respondent no. 8 to 13 have attempted to
give a criminal colour to the same. It is emphatically argued that
the breach of contract does not come within the purview of
cheating as defined in Indian Penal Code. The transaction in
question between the petitioner no. 1 and respondent no. 8 to 10
as revealed from the F.I.R. is purely a sale transaction or
commercial transaction and as such the question of cheating
does not arise at all.
18. It is next submitted that the statements made
in the F.I.R. does not disclose any criminal offence at all much
less any offence under sections 406, 420, 504, 506 read with
section 34 of Indian Penal Code and the present case is a case of
pure civil dispute between the petitioner no. 1 and respondent
no. 11 to 13 for which partition suit no. 022 of 2022 has been
Patna High Court CR. WJC No.1222 of 2022(6) dt.01-07-2025
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filed and pending adjudication before the Civil Court,
Aurangabad (Bihar). The averments in the F.I.R. and the
allegations made therein against the petitioners cannot constitute
an offence under Section 406, 420, 504, 506/34 of Indian Penal
Code 1860. The entire origin of the allegations made against the
petitioners emanates from the denial of petitioner no. 1 to sell
the ancestral property before its division/partition.
19. Learned counsel for the petitioners, in support
of his contentions has relied upon a judgment of the Hon’ble
Supreme Court in the case of Murari Lal Gupta vs. Gopi
Chand reported as 2005 (13) SCC 699.
20. Learned counsel for the respondent nos. 8 to
13 have appeared and have opposed the application by filing
counter affidavit.
21. The contention of the private respondents is
that the petitioner no.1 and respondent No.11 to 13 had executed
an agreement for sale on 30.12.2021 intended for selling their
land pertaining to Khata No.25, Plot No.209, 210, 211& 212
with a total area of 38 decimal and the aforesaid joint agreement
for sale was executed with respondent nos.8 to 10. It is also
submitted that all the parties accepted the terms and conditions
of the aforesaid agreement and subsequently had put their
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signatures on the agreement on 30.12.2021. In connection with
the aforesaid agreement, the petitioner no.1 and respondent
No.11 to 13 received advance in presence of witnesses.
22. Learned counsel for the private respondents
submits that the respondent No.8 had also deposited a sum of
rupees 2 lakhs in the account of petitioner no.1 and in lieu of
agreement the petitioner No.1 taken 3 Lakhs 25 thousand
Rupees from the respondent No-8. and after receiving the same
the petitioner No.1 was not willing to execute the sale deed or
returned the money. It is further submitted that the brother of the
petitioner on.1 who are respondent No.11 to13 have tried to
settle the dispute but due to ill behaviours of the petitioner no.1
and his sons, the sale deeds was not executed in the favour of
respondent No.8 to 10.
23. It is next submitted by learned counsel for the
private respondents that the informant / respondent No.8 asked
the petitioner to return the money but the petitioner no.1 is not
willing to return the amount therefore petitioners threatened and
abused the informant and in that circumstance, the informant
lodged Aurangabad (Nagar) Police Station Case No. 322 of
2022.
24. It is also pointed out that the petitioner no.1 and
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respondent No.11 to 13 has executed another sale deed to
Amisha Kumari on 25.11.2021 with regard to other piece of
land vide sale deed No.15837 upon which the petitioner no.1
and respondent No.11 to 13 put their signature in presence of the
Registrar.
25. Learned counsel for the private respondents has
also drawn attention of this Court to the fact that the petitioner
no.1 has also filed a complaint case No.398 of 2022 against the
respondents which was dismissed by the Learned J.M 1st Class
Aurangabadh on 30.1.2023.
26. It is lastly submitted by learned counsel for the
private respondents that the petitioners have wrongly mentioned
in the writ petition that they have not put their signature on the
agreement for sale. The respondents no. 11 to 13 have accepted
the fact that in their presence an agreement for sale was
executed upon which petitioner no.1 has put his signature
willingly.
27. A counter affidavit has been filed on behalf of
respondent no. 4 wherein the respondents have supported the
case of prosecution and oppose this writ petition.
28. I have considered the submissions of the parties.
29. Undisputed facts are that the parties have entered
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into an agreement for sale. Subsequently, the petitioners have
refused to execute the sale deed as per the agreement for sale
though the petitioners deny the factual aspect of the case.
30. The Hon’ble Supreme Court in the case of Murari
Lal Gupta (supra) has held as follows:
“6. We have perused the pleadings of the parties,
the complaint and the orders of the learned Magistrate and
the Sessions Judge. Having taken into consideration all the
material made available on record by the parties and after
hearing the learned counsel for the parties, we are satisfied
that the criminal proceedings initiated by the respondent
against the petitioner are wholly unwarranted. The complaint
is an abuse of the process of the court and the proceedings
are, therefore, liable to be quashed. Even if all the averments
made in the complaint are taken to be correct, yet the case for
prosecution under Section 420 or Section 406 of the Penal
Code is not made out. The complaint does not make any
averment so as to infer any fraudulent or dishonest
inducement having been made by the petitioner pursuant to
which the respondent parted with the money. It is not the case
of the respondent that the petitioner does not have the
property or that the petitioner was not competent to enter into
an agreement to sell or could not have transferred title in the
property to the respondent. Merely because an agreement to
sell was entered into which agreement the petitioner failed to
honour, it cannot be said that the petitioner has cheated the
respondent. No case for prosecution under Section 420 or
Section 406 IPC is made out even prima facie. The complaint
filed by the respondent and that too at Madhepura against the
petitioner, who is a resident of Delhi, seems to be an attempt
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14/16to pressurise the petitioner for coming to terms with the
respondent.”
31. Further in the case of Dalip Kaur and Others vs.
Jagnar Singh and Another reported in (2009) 14 SCC 696
“8. Sections 405 and 415 of the Penal Code
defining “criminal breach of trust” and “cheating”
respectively read as under:
“405. Criminal breach of trust.–Whoever,
being in any manner entrusted with property, or with
any dominion over property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or
implied, which he has made touching the discharge of
such trust, or wilfully suffers any other person so to do,
commits ‘criminal breach of trust’.
***
415. Cheating.–Whoever, by deceiving any
person, fraudulently or dishonestly induces the person
so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if
he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to
‘cheat’.”
An offence of cheating would be constituted when
the accused has fraudulent or dishonest intention at the time
of making promise or representation. A pure and simple
breach of contract does not constitute an offence of cheating.
9. The ingredients of Section 420 of the Penal Code
are:
“(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
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(iii) To consent that any person shall retain any
property and finally intentionally inducing that person to do
or omit to do anything which he would not do or omit.”
10. The High Court, therefore, should have posed a
question as to whether any act of inducement on the part of
the appellant has been raised by the second respondent and
whether the appellant had an intention to cheat him from the
very inception. If the dispute between the parties was
essentially a civil dispute resulting from a breach of contract
on the part of the appellants by non-refunding the amount of
advance the same would not constitute an offence of cheating.
Similar is the legal position in respect of an offence of
criminal breach of trust having regard to its definition
contained in Section 405 of the Penal Code. (See Ajay
Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri)
703] )”
32. From the bare perusal of the F.I.R, it is evident
that no offence of cheating on the part of the petitioners is made
out. It is not the case of the informant that the petitioners did not
have title to the said property in question. A mere non-
performance of the agreement to sell by itself does not attract
the rigours of cheating or criminal breach of trust. The criminal
law cannot be employed as an arm-twisting instrument to
pressurise the petitioners. Attempt by the informant to impart
criminal colour to a civil wrong cannot be permitted.
33. In my opinion, the facts of the case are squarely
covered by the judgment of Murari Lal Gupta (supra) and in
my opinion, no offence is made out against the petitioners in the
facts of the case.
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34. Accordingly, the application is allowed.
35. The F.I.R. bearing Aurangabad Nagar P.S. Case
No. 322/22 is hereby quashed.
36. The respondent nos. 11 to 13 are given liberty to
approach the District Court for appropriate relief in accordance
with law. It is made clear that any observations made herein will
not affect the competent court in deciding the aforesaid suit
which shall be decided on its own merit.
(Sandeep Kumar, J)
P. Kumar
U T
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