Patna High Court
Manoj Nari Sainani @ Manoj Sainani vs The State Of Bihar on 18 August, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.29313 of 2025
Arising Out of PS. Case No.-556 Year-2021 Thana- PATRAKARNAGAR District- Patna
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1. Manoj Nari Sainani @ Manoj Sainani Son of Nari Mulchand Sainani
Resident of B/1901- 1602, Brook Hill Tower Co-operative Housing
Society Ltd, Road No. 03 Lokhandwala Complex Andheri (West)
Mumbai 400053 PS -Oshiwara, Maharashtra India
2. Anjali Manoj Sainani @ Anjali Sainani Wife of Manoj Nari Sainani
Resident of B/1901- 1602, Brook Hill Tower Co-operative Housing
Society Ltd, Road No. 03 Lokhandwala Complex Andheri (West)
Mumbai 400053 PS -Oshiwara, Maharashtra India
3. Sumit Singh chawla Son of Gurdeep Singh Chawla Resident of
Navnidh Bungalow Plot No. B4, gulmohar Cross Road No. 07, JVPD
Scheme, Andheri West, Mumbai -400053, ps- Oshiwara, Maharastra,
India
4. Shabana Singh chawla @ Shabana Chawla Wife of Sumit Singh
Resident of Navnidh Bungalow Plot No. B4, gulmohar Cross Road
No. 07, JVPD Scheme, Andheri West, Mumbai -400053, ps-
Oshiwara, Maharastra, India
5. keval Dilip Mehta @ Kewal Mehta Son of Dilip Mehta @ Dilip
Hirajibhai Mehta Resident of 12/64, Sagarika Co-operative Housing
Society Limited, near Lilavati Hospital, Bandara Reclamation, Bandra
(West), Mumbai -400050, Ps- oshiwara, Maharastra
... ... Petitioners
Versus
1. The State of Bihar
2. The Director General of Police, Bihar, Patna Bihar
3. The Superintendent of Police, City East, Patna Bihar
4. Dr. Arvind Kumar son of Late Durga Singh Resident of Chitragupta
Nagar, Ps- Patrakar Nagar, Town and Dist- Patna
... ... Opposite Parties
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Appearance :
For the Petitioners : Mr.Amit Shrivastava, Sr. Advocate
Patna High Court CR. MISC. No.29313 of 2025 dt.18-08-2025
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Mr.Girish Pandey, Advocate
Mr.Brajesh Sahay, Advocate
Mr.Akash Ambuj, Advocate
For the State : Mr.Navin Kumar Pandey, APP
Mr.Arvind Kumar, In-person.
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V.JUDGMENT
Date : 18-08-2025
Heard Mr. Amit Shrivastava, learned senior counsel
appearing on behalf of the petitioners and Mr. Navin Kumar
Pandey, learned A.P.P. for the State and Mr. Arvind Kumar,
in-person/O.P. No.4.
At the outset, a joint attention was drawn that
inadvertently in order no. 9 dated 25.07.2025, O.P. No.4 was
mentioned as O.P. No. 2. Considering typographical error,
same be read as O.P. No.4, upon correction.
2. The present petition has been preferred by the
petitioners under section 482 of the Code of Criminal
Procedure (in short, the 'Cr.P.C.')/528 of the Bhartiya
Nagarik Suraksha Sanhita, 2023 (in short, the 'B.N.S.S.'), for
quashing of the order of cognizance dated 05.03.2025,
passed by Ms. Ankita Raj, learned Judicial Magistrate - 1 st
Class, Patna, whereby and whereunder learned Magistrate
has been pleased to take cognizance of the offences under
section 406/420/34 of the Indian Penal Code against the
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petitioners in connection with FIR No. 556/2021 lodged on
01.10.2021
at Patrakar Nagar Police Station, Patna by
informant/O.P. No.4.
3. At the outset, it would be apposite to mention that
petitioners preferred Cr.W.J.C. No. 158 of 2023 before this
Hon’ble Court on 06.01.2023 for quashing the FIR dated
01.10.2021 arising out of Patrakar Nagar P.S. Case No.
556/2021, which on the date of filing of present petition was
pending for adjudication.
4. An interim order dated 01.05.2025 was passed by
this Court, through which proceeding before the learned trial
court in aforesaid matter was stayed till further order as:
“01.05.2025: 1. It is submitted by Mr. Amit
Shrivastava, learned senior counsel appearing for above
named petitioners that present criminal case was lodged,
when petitioners raised lawful demand for balance
payment of Rs. 55 lacs from opposite party no. 4 in
connection with purchase of property/show room in
Mumbai. It is submitted that dispute which prima facie
appears civil in nature was given criminal colour in the
circumstance when, petitioners never visited Patna. It is
submitted that no criminal case as alleged appears
prima facie make out against petitioners and, therefore,
the present impugned order of cognizance dated
05.03.2025 passed by Judicial Magistrate 1 st Class,
Patna is fit to be set aside/quashed, in view of legal ratio
as available through State of Haryana and Ors. Vs.
Bhajan Lal and Ors., reported in 1992 Supp (1)
Supreme Court Cases 335.
2. Considering the aforesaid submission as raised by
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Mr. Shrivastava, learned senior counsel appearing for
petitioners, let further proceedings qua above named
five petitioners shall remain stayed till further order.
3. Learned APP accepts notice for opposite party nos.
1, 2 and 3.
4. Let notice be issued to opposite party no. 4 by both
modes i.e. speed post as well as ordinary post with A/D,
for which necessary requisites must be filed within two
weeks.
5. Considering the submission of Mr. Shrivastava,
learned senior counsel, let up-to-date legible copy of the
case diary be also called for in connection with Patrakar
Nagar P.S. Case No. 556 of 2021, G.R. No. 6718/2021
from the Court of learned Judicial Magistrate, 1 st Class,
Patna/concerned Court positively on or before next date
of hearing.
6. Learned APP Mr. Navin Kumar Pandey is directed
to file counter affidavit, positively by next date of
hearing.
7. Re-notify this case on 07.07.2025.”
5. After passing of the aforesaid stay order in the
present matter, the petitioners approached before the learned
coordinate Bench of this Court and prayed for withdrawal of
Cr.W.J.C. No. 158/2023, wherein learned coordinate Bench
has passed the following order on 19.06.2025, which reads as
under:
“19.06.2025: Heard the learned Senior Counsel for
the petitioners, learned counsel for the State and the learned
counsel for the respondent no. 5.
2. This is an application for issuance of appropriate
writ/writs, order/orders, direction/directions for quashing the
Patrakarnagar P.S. Case no. 556/2021 dated 01.10.2021
registered for offences under Sections 406, 420 of the I.P.C.
by which private respondent set the criminal court in motion
to settle a dispute which is essentially Civil in nature and all
transactions took place in the territorial jurisdiction within the
jurisdiction of High Court at Bombay and petitioners who are
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situated at Mumbai and all transactions took place at Mumbai
and petitioners initiated Civil Proceeding under ordinary
Original Civil Jurisdiction within the territorial jurisdiction at
High Court at Bombay being numbered as Suit no.
2310/2021 for enforcement of agreement for Sale dated
15.11.2021 and after adjudication private respondent may
be directed either to pay the remaining consideration amount
of Rs. 40500000/- with interest and other ancillary expenses
or agreement for sale between the parties may be rescinded.
3. At the very outset, learned counsel for the
respondent no. 5, Sri Pramod Kumar has submitted that this
case has become infructuous as the charge sheet has been
submitted, cognizance has been taken and summon has been
issued for the appearance of the petitioners.
4. Learned counsel for the informant has further
submitted that in this case, the informant has been cheated
of Rs. 23 Crore and the accused persons are delaying the
judicial process which is denied by the learned Senior
Counsel for the petitioner. He further submits that the
accused are trying to delay their trial as they are enjoying the
cheated amount.
5. At this stage, learned Senior Counsel for the
petitioner has very fairly submitted that he may be
permitted to withdraw this application as the same has
become infructuous now.
6. Permission is accorded.
7. Accordingly, this application is dismissed as
withdrawn.
8. The Trial Court is directed to proceed with the case
on day-to-day basis so that the guilty persons are punished.
9. Let a copy of this order be communicated to the
Principal District and Sessions Judge, Patna through FAX for
its compliance forthwith.”
6. Both aforesaid orders of this Court i.e. order dated
01.05.2025 as passed in Cr. Misc. No. 29313/2025 and the
order dated 19.06.2025 passed in Cr.W.J.C. No. 158/2023,
were challenged before the Hon’ble Supreme Court.
7. Against the interim order dated 01.05.2025 as
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passed in Cr. Misc. No. 29313/2025, the Hon’ble Supreme
Court, vide its order dated 16.05.2025, has been pleased to
pass the following order:
“1. After some arguments, learned counsel for
the petitioner prays to withdraw the petition with
liberty to file an application for discharge of the
interim order.
2. In view of the above, the Special Leave
Petition is dismissed as withdrawn.
3. Pending application(s), if any, shall stand
disposed of.”
8. Thereafter, the Hon’ble Supreme Court has been
pleased to pass the following order dated 4 th July, 2025 in
Special Leave to Appeal (Crl.) Nos. 9560/2025 (Annexure
‘B’ to the Rejoinder to I.A. No. 01/2025 filed by O.P.
No.4), against the order dated 19.06.2025 passed by this
Court in Cr.W.J.C. No. 158/2023, which are as under for
ready reference:
“Leave granted.
Heard Sri Amit Pawan, learned counsel for the
appellants and Sri Siddarth Dave, learned senior counsel
appearing for respondent No.5 (1.e. the complainant).
Considering the nature of the order that we propose to
pass, we do not deem it necessary to issue notice to the State
of Bihar and its officers at this stage.
The case of the appellant is that they approached the
Patna High Court for quashing of the First Information Report
pertaining to Case No.556 of 2021 by filing Criminal Writ
Jurisdiction Case NO.158 of 2023. During pendency of the
aforsaid case, the investigation resulted in a charge sheet on
which cognizance was taken and therefore, when the
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prayed that the petition be dismissed as withdrawn because
in the meantime, the appellants had already invoked the
jurisdiction of the High Court for quashing of the cognizance
order.
Consequently, by order dated 19.06.2025 the High
Court granted permission to withdraw the petition and the
said petition was dismissed as withdrawn. However, while
dismissing the writ petition as withdrawn vide order dated
19.06.2025, the High Court directed as under:
“The trial court is directed to proceed with case on day-
to-day basis so that the guilty persons are punished.”
The learned counsel for the appellants submitted that
the aforesaid direction of the High Court is uncalled for
because in the proceedings initiated by the appellants for
quashing of the cognizance order, the further proceedings of
the case was stayed by the High Court itself vide interim
order dated 01.05.2025. It submitted that the order dated
01.05.2025 was challenged by the complainant party before
this court. But this court refused to entertain the challenge by
giving them liberty to approach the High Court for discharge
of the interim order.
Sri Dave, learned senior counsel, who appears for
complainant-party, submits that pursuant to the the liberty
given by this Court, the complainant party has already
applied for discharge of the interim order passed in Criminal
Miscellaneous No.29313 of 2025 and the next date fixed in
those proceedings is 14.07.2025.
It is however not in dispute between the learned counsel
for the parties that the interim order granted earlier in
Criminal Miscellaneous No.29313 of 2025 is still subsisting.
In view thereof, we deem it appropriate to modify the
impugned order dated 19.06.2025 by directing that the
direction given in paragraph 8 of the impugned order shall be
subject to further orders passed in Criminal Miscellaneous
No.29313 of 2025 and would operate only on discharge of
the interim order passed therein.
With the aforesaid observations/clarification, this appeal
stands disposed of.
Pending application(s), if any, shall stand disposed of.”
9. Mr. Shrivastava, learned senior counsel while
appearing for the petitioners, after passing of the aforesaid
order by the Hon’ble Apex Court, prays for final hearing on
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‘Admission’ along with hearing of petition i.e. I.A. No. 01 of
2025, which was not objected by Mr. Gaurang Chatterjee,
learned senior counsel appearing for the opposite party no. 4.
10. Vide order dated 16.04.2025, it was informed to
this Court by Mr. Gaurang Chatterjee, learned senior counsel
that he is under instruction as not to appear further in this
matter as the opposite party no. 4 (Mr. Arvind Kumar) himself
desirous to appear in-person.
11. With aforesaid backgrounds, it would be apposite
to give a brief look to the case of the informant/O.P. No. 4,
which was lodged as Patrakar Nagar P.S. Case No. 556/2021
and subject of present quashing petition.
Brief facts of the case
(i) As per the case of the informant/O.P. No.4, it
appears that he is the resident of Chitraguptnagar,
Kankarbagh, Patna and Director of M/s Rudra Tara
International Private Limited. He is a regular visitor to
Mumbai to meet his children and in said connection, on one
occasion, he met with two persons namely, Manoj Nari
Sainani and his wife Anjali Nari Sainani, who were residents
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of Mumbai, where he was informed that they are engaged in
the business of Real Estate and further disclosed that Sumit
Singh Chawla and his wife, Shabana Chawla and Sri Keval
Dilip Mehta, all residents of Mumbai, are also actively
engaged/associated with them in their business of real estate.
(ii) It is alleged that Manoj Nari Sainani (petitioner
no.1) and Sumit Singh Chawla (petitioner no.3) with his wife
Shabana Singh Chawla (petitioner no.4) came to Patna in
connection with some property dealing and approached him
by asking his residential address. They came to the house of
the informant and discussed one property in Mumbai, which
was of market value somewhere between 27-30 Crores.
(iii) It is alleged that petitioners persuaded him that
property in issue would give a good profit in due course and as
they are in dire need of money, they are ready to sell him the
discussed property against consideration a amount of Rs.
19.45 Crores only, and whenever he wants after the lapse of
one year, they will take back the property after giving him
15% annual profit.
(iv) The aforesaid proposal was accepted by O.P.
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No.4/informant. The property was allotted to petitioners by
MHADA (Maharashtra Development Authority) having five
shops which were in the names of petitioner nos. 1, 2, 3, 4 &
5, which were constructed over 483.30 square meters being a
showroom, located at Lokhandwala, Andheri (East), Mumbai.
(v) It is further alleged that upon telephonic talks, all
five petitioners (accused) visited the residence of O.P. No. 4
at Chitraguptnagar, Kankarbagh, Patna on 02.10.2016 and
took Rs. 1.48 Crores in cash and a cheque for Rs. 11 Lakh
and distributed the money amongst themselves in his
presence and drew up an agreement on plain paper and also
gave a receipt for the same. All of them said that they have
given their power of attorney to Manoj Nari Sainani (petitioner
no. 1), as such only the signature of petitioner no. 1 is
available everywhere.
(vi) On the basis of the aforesaid agreement on plain
paper, the petitioners came and stayed at Patna between
01.11.2016 and 05.11.2016 and in that duration, took
money from him on three occasions and further gave a receipt
on plain paper agreement. It is alleged that agreement
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(Memorandum of Understanding) on plain paper which was
executed at his residence at Patna on 02.10.2016, was
notorized in Mumbai on 17.11.2016. The petitioners did not
take the entire money from O.P. No. 4/informant for the
reason that the occupancy certificate was not given to them
by MHADA, which he promised to provide in the next 15-30
days, and on said assurance only , till 02.03.2019, the
petitioners took about Rs. 16.50 Crores from O.P.
No.4/informant.
(vii) It is further alleged that the money was paid by
the informant/OP No.2 for the smooth running of the business
of the petitioners, as they were in dire need of money as said.
In the meantime, the attorney Holder Manoj Nari Sainani
(petitioner No.1) prepared an additional agreement on
22.07.2017, stating that they will take back the property
within three months against Rs. 23 Crores. The petitioners
failed to act on said assurance. The stamp papers were
purchased at Mumbai, but were signed at Patna in the
presence of local witnesses.
(viii) The aforesaid agreement was also not honoured
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and the petitioners again came to Patna on 25.07.2017 and
executed a third Extension Agreement on stamp paper
brought from Mumbai, where signatures were put at his
Chitraguptnagar residence at Patna. They admitted that they
have committed a mistake and requested a further period of
three months and for such mistake, they will pay Rs. 12 Lakhs
per month for total of Rs. 36 Lakhs, for which they drew three
cheques on Kotak Mahindra Bank in favour of O.P. No.4,
which he got deposited in his account available with Canara
Bank, Hanuman Naagar, Patna, which were duly credited.
Thereafter, they have written in the agreement that Rs. 18.84
Crores will be refunded within three months and, till such
time, interest of Rs. 12 Lakhs shall be payable on a monthly
basis, but under conspiracy, which was pre-planned he was
called to Mumbai and one registered agreement for sale was
prepared.
(ix) It is alleged that even after getting three
agreements prepared, they have not refunded Rs. 18.84
Crores nor paid Rs. 12 Lakhs interest per month, which they
had promised to re-pay by 25.01.2018, and they did not even
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agreed to buy-back the property.
(x) It is further alleged that after all the aforesaid
events, petitioners stopped talking with the informant/O.P.
No.4. The informant/O.P. No.4 tried regularly to contact with
all the aforesaid petitioners, during the entire month of
September, 2021, but the accused persons never picked their
phone nor return the money and neither make any step to
buy-back the property and therefore, the entire amount of Rs.
18.84 Crores was cheated on the false pretext of selling
property.
(xi) With the aforesaid allegation, the present FIR
was lodged for the offences punishable under sections 406,
420, 384, 504 of the I.P.C. on 01.10.2021 in Patrakarnagar
Police Station, Patna.
Argument on behalf of the petitioners
12. At the outset, Mr. Amit Shrivastava, learned
senior counsel appearing on behalf of the petitioners, denied
each and every averments, allegations and insinuation as
contained in the FIR, which is contrary and inconsistent with
the true and actual events. It is submitted that the present
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FIR was lodged with a sole oblique intention to harass and
victimize the petitioners and to wreak personal vengeance.
13. It is submitted by Mr. Shrivastava, that O.P.
No.4/informant had initially filed a complaint under section
200 of the Cr.P.C. being Complaint Case No. 805/2021
before the learned Additional Chief Judicial Magistrate, Patna
City with same cause of action. Mr. Shrivastava submitted
that contents of the present FIR is completely different to the
averments made by the informant/O.P. No. 4 in the complaint
case No. 805/2021 filed on 10.09.2021 in the court of
learned A.C.J.M., Patna City.
14. It is submitted by Mr. Shrivastava that this is an
admitted position that informant/O.P.No.4 has not at all
disclosed while lodging the said FIR through his letter (written
information) dated 27.09.2021 that he has already filed
complaint case No. 805/2021 on 10.09.2021 in the court of
learned A.C.J.M., Patna City, therefore, the present FIR dated
01.10.2021 which was lodged after almost 20 days is
virtually a second FIR, which is not permissible under law.
15. It is pointed out that complainant (O.P. No.4)
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never appeared in the said complaint case and by order dated
16.12.2022 (Annexure-‘P/3’), the learned Jurisdictional
Magistrate -1st Class, Patna City dismissed the said complaint
case under section 203 of Cr.P.C. as no prima facie case was
made out against the accused persons (petitioners) under
sections 406, 420, 467, 468, 147, 504, 120B of the IPC, by
observing categorically that dispute is of civil nature.
16. Mr. Shrivastava, further submitted that the
Investigating Officer of this case with the assistance of
Inspector of Oshiwara Police Station, Mumbai had conducted
and completed the investigation, where, to the best of the
knowledge of the petitioners, no culpability had been found
against them during the course of the investigation.
17. It is further submitted that petitioners never
visited Patna (Bihar) in connection with the transaction of sale
of the property in question, and, therefore, lodging of FIR in
Patna is without jurisdiction. It is further pointed out that
considering the balance in favour of petitioners, they were
granted privilege of section 41-A of the Cr.P.C. during the
investigation, which was never misused by them.
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18. It is pointed out that the entire deed was
finalized in Mumbai, and, therefore, the related documents
were executed at Mumbai itself, as such, on this very ground,
the FIR in issue is liable to be quashed/set aside in want of
jurisdiction.
19. It is further submitted that the I.O. has failed to
procure the CCTV footage, call details or anything in support
of the fact qua physical presence of petitioners on
02.10.2016 and between 01.11.2016 and 05.11.2016 and
further on 25.07.2017 at Patna, which is the core issue
requiring investigation at its first instance.
20. In view of the aforesaid, it is submitted by Mr.
Shrivastava, that no cognizable offence, as alleged, is made
out against the petitioners and, therefore, the present FIR is
fit to be set aside/quashed in view of the legal report of the
Hon’ble Supreme Court as available in through State of
Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335] and
Maghavendra Pratap Singh @ Pankaj Singh Vs. State
of Chhatisgarh [2023 INSC 415].
21. Learned senior counsel further submitted that in
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Bhajan Lal case (supra), the Hon’ble Apex Court had set
out, by way of illustration, the broad categories of cases in
which the inherent power under Section 482 Cr.P.C. could be
exercised. Para 102 of the decision reads as follows:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the
ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first informant report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
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that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
22. In this context, Mr. Shrivastava, also drew the
attention of this Court towards para 38 of the judgment as
available through Maghavendra Pratap Singh case
(supra), which reads as under:
“38. The Investigating Officer is the person tasked with
determining a direction, the pace, manner and method of
the investigation. In Amarnath Chaubey v. Union of
India (2021) 11 SCC 80, it was observed that the police
has a primary duty to investigate upon receiving the report
of the commission of crime. In Manohar Lal Sharma v.
Union of India (2014) 2 SCC 532, this Court observed
that one of the responsibilities of the police is protection of
life, liberty and property of citizens. The investigation of
offences to bring the offender to the book and facilitate the
ultimate search for truth is one of the important duties the
police has to perform. This is a statutory duty under the
Cr.P.C. and is also a constitutional obligation ensuring the
maintenance of peace and the upholding of rule of law.”
23. Contrary to the aforesaid submissions, it is
submitted by O.P. No. 4, who is appearing in-person, that
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petitioners are taking a plea of alibi that they were not
present on the given date and time at Patna to execute the
contract and received the money. It is submitted that this fact
cannot be ascertained at this stage rather this is a matter of
evidence and can be ascertained during the trial only and,
therefore, on this ground, this petition is liable to be
dismissed.
24. It is further submitted that a complaint case was
filed earlier to the FIR, but the same was dismissed without
any inquiry and, therefore, same is of no bearing to the
present FIR, moreover, this fact was also only looked into
during the trial. It is submitted that he did not proceed with
the complaint case initially on the basis of assurance given by
petitioners to resolve the issue shortly, but every time they
failed to comply with their promise, it suggested prima facie
that from the very inception of the transaction the petitioner
were under the intention of cheating.
25. It is also submitted that considering all such
aspects, the police find the allegation true and submitted a
charge-sheet against the petitioners for the offences
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punishable under sections 406, 420/34 of the I.P.C. through
charge-sheet No. 158/2025 dated 28.02.2025.
26. It is pointed out that upon perusal of materials as
collected during investigation, the learned jurisdictional
Magistrate took cognizance against petitioners finding the
case prima facie true for the offences under Sections
406/420/34 of the IPC vide order dated 05.03.2025 (order
under challenge).
27. It is submitted by opposite party no. 2/informant
that he was always ready and is even ready now to pay the
balance of Rs. 55 Lakhs of the total consideration amount
of Rs. 19,45,00,000/- (Rupees Nineteen Crores Forty
Five Lakhs only) for execution of the sale deed, but to
frustrate the cause, instead of accepting the balance amount,
petitioners approached the City Civil Court at Mumbai
(Maharashtra), where an interim order was obtained against
him not to alienate the property without any occasion.
28. It is pointed out that neither petitioners are
accepting the balance of Rs. 55 Lakhs nor executing the sale
deed for the simple reason that the property for which the
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deal was done in the year 2016, now becomes Rs. 60-70
Crores as per market value. It is submitted that the filing of a
civil suit before the Civil Court at Mumbai was only with the
oblique motive to give the dispute a civil colour to create a
defence that a civil suit is pending for the property and further
to make the property disputed.
29. In furtherance of the aforesaid submission as
O.P. No. 4/informant is ready to pay Rs. 55 Lakhs in terms of
the agreement dated 15.11.2018, Mr. Shrivastava, learned
senior counsel for the petitioners, took an adjournment to
discuss this issue with the petitioners as to whether they are
ready to execute the sale deed. But, subsequently, it was
informed to this Court by Mr. Shrivastava that now the
petitioners are neither ready to execute the sale deed even
after receiving Rs. 55 Lakh nor willing to pay 15% interest
since 2016 on the received amount for the reason that they
have been dragged into the criminal case for no reason.
30. It is further submitted by the informant/O.P.
No.4, that at the time of selling of the property the petitioners
were in dire need of money for their business revivals and
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after post Covid-19, when the property got a boom, they
changed their mind even after receiving almost the entire
consideration amount and thereafter made fair transaction a
disputed one after lodging the civil case being Civil Suit No.
2936/2024 at Mumbai, where an order was passed that O.P.
No. 4/informant would not alienate the property. The lodging
of the aforesaid civil case was completely uncalled for and
unwarranted and was in a very planned and formulated
manner to mitigate criminal offence by giving a colour of civil
dispute. The lodging of a civil case was in itself a cheating
step to delay the execution of the sale deed.
31. While concluding argument, it is submitted by
the informant that what would be more cheating is that the
petitioners are neither executing the sale deed, even after
receiving almost the entire consideration amount i.e. Rs.
18,84,00,000/- against Rs. 19,45,00,000/- nor returning the
amount with 15% interest since 2016.
32. It is submitted that on its face, the dispute
appears civil in nature because it was painted so by the
petitioners but the conduct of the petitioners from a very
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inception of the deal is sufficient to make out a case of
cheating and criminal breach of trust. It is also pointed out
that as per established principle of law, civil disputes and
criminal proceeding can both co-exist. Learned counsel relied
upon the legal report of the Hon’ble Supreme Court as
available through Devendra and Others Vs. State of
Uttar Pradesh and Anr. reported in (2009) 7 SCC 495
and S.N. Vijayalakshmi & Ors. Vs. The State of
Karnataka and Anr. [2025 SCC Online SC 1575].
33. It would be apposite to reproduce para ’13’ of
Devendra case (supra), which reads as such:
“13. There cannot, however, be any doubt or dispute
whatsoever that in a given case a civil suit as also a criminal
proceeding would be maintainable. They can run simultaneously.
Result in one proceeding would not be binding on the court
determining the issue before it in another proceeding. In P.
Swaroopa Rani v. M. Hari Narayana [(2008) 5 SCC 765 :
(2008) 3 SCC (Cri) 79] the law was stated, thus: (SCC p.
769, para 11)
11. It is, however, well settled that in a given case, civil
proceedings and criminal proceedings can proceed
simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and
circumstances of each case.”
34. It would also be apposite to reproduce para ’42’
of S.N. Vijayalakshmi case (supra), which reads as under:
“42. Coming to the second question i.e., whether civil and
criminal proceedings both can be maintained on the very
same set of allegations qua the same person(s), the answer
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criminal proceedings. If the element of criminality is there, a
civil case can co-exist with a criminal case on the same facts.
The fact that a civil remedy has already been availed of by a
complainant, ipso facto, is not sufficient ground to quash an
FIR, as pointed out, inter alia, in P Swaroopa Rani v. M Hari
Narayana, (2008) 5 SCC 765 and Syed Aksari Hadi Ali
Augustine Imam v. State (Delhi Admn.), (2009) 5 SCC 528.
The obvious caveat being that the allegations, even if having
a civil flavour to them, must prima facie disclose an
overwhelming element of criminality. In the absence of the
element of criminality, if both civil and criminal cases are
allowed to continue, it will definitely amount to abuse of the
process of the Court, which the Courts have always tried to
prevent by putting a stop to any such criminal proceeding,
where civil proceedings have already been instituted with
regard to the same issue, and the element of criminality is
absent. If such element is absent, the prosecution in question
would have to be quashed. In this connection, Paramjeet
Batra v. State of Uttarakhand, (2013) 11 SCC 673 can
be referred to:
’12. … Whether a complaint discloses a criminal offence
or not depends upon the nature of facts alleged therein.
Whether essential ingredients of criminal offence are
present or not has to be judged by the High Court. A
complaint disclosing civil transactions may also have a
criminal texture. But the High Court must see whether a
dispute which is essentially of a civil nature is given a
cloak of criminal offence. In such a situation, if a civil
remedy is available and is, in fact, adopted as has
happened in this case, the High Court should not
hesitate to quash the criminal proceedings to prevent
abuse of process of the court.’ (emphasis supplied)”
35. No doubt, the dispute arises in the background of
the purchase of property by informant/O.P. No.4 which is
located in the prime location of Mumbai, for which the
petitioners admittedly received altogether Rs. 18.84 Crores
against consideration of Rs. 19,45,00,000/-. It also
transpires that on the date of agreement or on the date of
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receiving money, the occupancy certificate was not issued in
favour of the petitioners so as to enter into the deal, for which
O.P. No. 4 was kept in dark as the occupancy certificate could
be obtained only on 03.05.2021.
36. During the course of proceedings, it also appears
that petitioners are adamant as not to return the admitted
received amount of Rs. 18,84,00,000/- with interest of 15%
per annum to O.P. No. 4 since 2016, or alternatively to
execute the sale deed of the property in issue after receiving
the balance amount of Rs. 55 Lakhs, which the
informant/O.P. No.4 is ready to pay any time.
37. This Court fails to understand that how the
petitioners can be adamant about both aforesaid options,
which certainly implies prima facie their intention qua
cheating by importing the element of criminality.
38. There is no bar in view of S.N. Vijayalakshmi
case (supra), that the civil case and the criminal case cannot
co-exist. Hence, considering the aforesaid discussed conduct
of petitioners, there is no occasion to interfere with the
impugned cognizance order dated 05.03.2025 passed by
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learned Judicial Magistrate – 1st Class, Patna, and, therefore,
this petition stands dismissed at the admission stage itself,
being devoid of any merit.
39. In view of the aforesaid, no separate order is
required to pass on pending I.A. No. 01 of 2025, and, the
same also stands disposed of.
40. Consequent upon dismissal of petition as above,
learned trial court is directed to proceed with the trial on a
day-to-day basis as per the order mentioned at paragraph ‘8’
of Cr.W.J.C. No. 158/2023 dated 19.06.2025, as discussed
aforesaid, which was further affirmed by the Hon’ble Supreme
Court through SLA (Crl.) No. 9560/2025 dated 04.07.2025.
41. Let a copy of this judgment be sent to the learned
trial court forthwith.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR AFR CAV DATE 25.07.2025 Uploading Date 18.08.2025 Transmission Date 18.08.2025