Patna High Court
Mala DeviversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
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
- Code of Criminal Procedure, 1973 — s. 482
- Indian Penal Code — s. 406, 420
- Negotiable Instruments Act — s. 138
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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