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Patna High Court

Mala DeviversusThe State of Bihar

Decided
Disposal
DISPOSED

Holding

The High Court held that the complaint is essentially civil, lacks a substantive criminal element, and therefore the petitioner is entitled to conditional pre‑arrest bail with the matter referred to mediation.

Summary

Mala Devi applied for pre‑arrest bail in a complaint case (No. 347/2022) alleging that she dishonoured a cheque of Rs 7 lakhs, invoking Sections 406, 420 IPC and Section 138 NI Act. The court observed that the dispute was essentially a civil one concerning a friendly loan and that the complaint lacked a clear criminal element. Citing the Supreme Court’s guidance on abuse of process, the High Court directed that the matter be referred to mediation under the Mediation Act, 2023 and that no coercive action be taken against the petitioner pending settlement. The court granted conditional pre‑arrest bail, subject to appearance before the district court and mediation proceedings. The application was thereafter disposed of.

Issues considered

  • The applicability of pre‑arrest bail in a complaint alleging criminal breach of trust, cheating and cheque bounce.
  • Whether the complaint discloses a criminal offence or is merely a civil dispute.
  • Whether the High Court should intervene under Section 482 CrPC to prevent abuse of process.

Legislation cited

Subjects

  • pre‑arrest bail
  • civil dispute
  • criminal breach of trust
  • cheating
  • cheque bounce
  • mediation
  • abuse of process
  • Section 406 IPC
  • Section 420 IPC
  • Section 138 NI Act

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.13306 of 2026
                   Arising Out of PS. Case No.-347 Year-2022 Thana- SITAMARHI COMPLAINT CASE
                                                    District- Sitamarhi
                 ======================================================
                 Mala Devi Wife of Sri Kanhai Singh Resident of Village - Gaighat, Ward No.-
                 1, P.S.- Runnisaidpur, District - Sitamarhi.

                                                                             ... ... Petitioner/s
                                                    Versus
           1.    The State of Bihar
           2.    Vikas Anand Son of Late Parmeshwar Yadav Resident of Village -
                 Sinhvahini, Tole Khutaha, P.S.- Sonbarsa, District - Sitamarhi.

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :    Mr.Vaidehi Raman Prasad Singh, Advocate
                 For the Opposite Party/s :    Mr.Md. Mushtaque Alam, APP
                 For the O.P. No.2        :    Mr. Santosh Kumar, Advocate
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
                                       ORAL ORDER

3   30-04-2026                       Heard Mr. Vaidehi Raman Prasad Singh, learned

                   counsel appearing on behalf of the petitioner and Mr. Md.

                   Mushtaque Alam, learned APP for the State.

                                2. The petitioner seeks pre-arrest bail in connection

                   with Complaint Case No. 347/2022 registered for the offence(s)

                   punishable under Sections 406,420 of the Indian Penal Code and

                   Section 138 of N.I. Act.

                                3. As per the allegation made in the complaint petition

                   the petitioner is alleged to have taken a friendly loan of Rs.

                   7,00,000/- from the complainant and issued a cheque in

                   discharge thereof, which, upon presentation, was dishonoured

                   due to insufficient funds, and despite service of legal notice, the
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          amount was not repaid, leading to institution of the complaint

          case under Section 406 IPC and Section 138 of the N.I. Act.

                       4. Learned counsel appearing            submitted that the

          petitioner is innocent and has been falsely implicated in the

          present case. However, on instruction, learned counsel

          submitted that the matter is purely civil in nature and to buy

          peace of mind, petitioner wants to settle the dispute amicably

          outside the Court.

                       5. Learned counsel appearing on behalf of              the

          complainant and learned APP appearing on behalf of the State

          submitted that a chance be given to the parties for amicable

          settlement outside the court.

                       6. Counsel for the petitioner and complainant on

          instructions, submitted that the petitioner and the complainant

          have agreed to appear before the learned District Court at 10:30

          A.M. on or before 15.05.2026.

                       7. Heard the parties

                       8. Considering the nature of allegation made in the

          F.I.R. which has a civil flavour and the same prima facie don’t

          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
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          process of law.

                        9. In this regard, I find it apt to refer the observation

          made by the Apex Court in para-12 in case of Paramjeet Batra

          v. State of Uttarakhand, (2013) 11 SCC 673, which is

          reproduced hereinafter::

                                              "12. While exercising its jurisdiction
                                  under Section 482 of the Code the High Court has to
                                  be cautious. This power is to be used sparingly and
                                  only for the purpose of preventing abuse of the
                                  process of any court or otherwise to secure ends of
                                  justice. 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."

                       10. The Apex Court has reiterated the aforesaid

          preposition in its recent judgment of S.N. Vijayalakshmi &

          Ors. Vrs. The State of Karnataka and Anr. reported in (2025)

          SCC Online SC 1575.

                       11. The Apex Court while considering the content of

          ingredients of Sections 406 and 420 of the Indian Penal Code in

          the case of Delhi Race Club (1940) Ltd. & Ors. vs. State of

          Uttar Pradesh & Anr. in Criminal Appeal No. 3114 of 2024,

          after discussing the earlier law laid down in several cases, has
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          observed in paragraphs nos. 35, 36 and 37, inter alia as follows:

                                         Difference between criminal breach of trust
                          and cheating
                                        35. This Court in its decision in S.W.
                          Palanitkar v. State of Bihar S.W. Palanitkar v. State of
                          Bihar, (2002) 1 SCC 241 expounded the difference in the
                          ingredients required for constituting of an offence of
                          criminal breach of trust (Section 406 IPC) vis-à-vis the
                          offence of cheating (Section 420). The relevant observations
                          read as under :
                                        “9. The ingredients in order to constitute a
                          criminal breach of trust are : (i) entrusting a person with
                          property or with any dominion over property; (ii) that
                          person entrusted : (a) dishonestly misappropriating or
                          converting that property to his own use; or (b) dishonestly
                          using or disposing of that property or wilfully suffering any
                          other person so to do in violation (i) of any direction of law
                          prescribing the mode in which such trust is to be
                          discharged, (ii) of any legal contract made, touching the
                          discharge of such trust.
                                         10. The ingredients of an offence of cheating
                          are : (i) there should be fraudulent or dishonest inducement
                          of a person by deceiving him, (ii)(a) the person so deceived
                          should be induced to deliver any property to any person, or
                          to consent that any person shall retain any property; or (b)
                          the person so deceived should be intentionally induced to
                          do or omit to do anything which he would not do or omit if
                          he were not so deceived; and (iii) in cases covered by (ii)
                          (b), the act of omission should be one which causes or is
                          likely to cause damage or harm to the person induced in
                          body, mind, reputation or property.”
                                        36. What can be discerned from the above is
                          that the offences of criminal breach of trust (Section 406
                          IPC) and cheating (Section 420 IPC) have specific
                          ingredients:
                                        In order to constitute a criminal breach of
                          trust (Section 406 IPC)
                                       (1) There must be entrustment with person for
                          property or dominion over the property, and
                                         (2) The person entrusted:
                                        (a) Dishonestly misappropriated or converted
                          property to his own use, or
                                        (b) Dishonestly used or disposed of the
                          property or wilfully suffers any other person so to do in
                          violation of:
                                         (i) Any direction of law prescribing the
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                          method in which the trust is discharged; or
                                       (ii) Legal contract touching the discharge of
                          trust (see : S.W. Palanitkar [S.W. Palanitkar v. State of
                          Bihar, (2002) 1 SCC 241.
                                      Similarly, in respect of an offence under
                          Section 420IPC, the essential ingredients are:
                                       (1) Deception of any person, either by making
                          a false or misleading representation or by other action or
                          by omission;
                                        (2) Fraudulently or dishonestly inducing any
                          person to deliver any property, or
                                        (3) The 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
                          (see : Harmanpreet Singh Ahluwalia v. State of Punjab
                          [Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7
                          SCC 712.
                                      37. Further, in both the aforesaid
                          sections, mens rea i.e. intention to defraud or the
                          dishonest intention must be present, and in the case
                          of cheating it must be there from the very
                          beginning or inception."
                       12. Learned District Court is directed to                take

          necessary steps to issue notices to the respective parties and

          upon their appearance refer the matter under the provision of

          Mediation Act, 2023 before the learned Mediator of the District

          Mediation Centre by fixing a date for appearance of the parties

          to give effect to “Mediation for the Nation 2.0”.

                       13. Thereafter, learned Mediator of the District

          Mediation Center concerned shall make his/her best efforts to

          settle the dispute amicably and submit his/her report before the

          concerned learned District Court, well within a period of three

          months, till then, no coercive action shall be taken against the
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          petitioner in connection with the aforesaid case.

                       14. In case, the parties resolve their dispute amicably

          or arrive at a mutual settlement, in light of the law laid down by

          the Apex Court as referredabove, the petitioner is required to be

          released on pre-arrest bail on such terms and conditions as the

          learned District Court deems it fit and proper.

                       15. In case of failure on the part of the petitioner to

          appear on or before 15.05.2026 before the learned District Court

          or any date fixed by the learned Mediator, the interim protection

          granted to the petitioner shall automatically lose its force.

                       16.    In case, it is deliberate on the part of the

          complainant        to reconcile, then in that case,    the   interim

          protection granted to the petitioner shall continue and the trial

          shall proceed in accordance with law.

                       17. In case, the parties fail to reconcile, then in that

          case, parties may avail appropriate remedy. Then also, petitioner

          is directed to be released on pre-arrest bail on such terms and

          conditions as the learned District Court deems it fit and proper.

                       18.    With aforesaid direction and observation, the

          present application stands disposed of.

                       19. Let a copy of this order be communicated to the

          Member Secretary, Bihar State Legal Services Authority and the
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                     Patna High Court Mediation Centre for the purpose of record.



                                               (Purnendu Singh, J)
Sanjay/-

U      T


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