Allahabad High Court
SHYAM KUMAR JAISWALversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The oral agreement is not legally enforceable, so the allegation of cheating cannot be sustained, and the lower courts' orders are affirmed.
Summary
The petitioner claimed that an oral agreement to sell a house, for which he paid Rs. 6 lakh, was breached by the respondents who neither executed the sale deed nor returned the money. He filed a complaint under Section 175(3) of the BNSS, which the magistrate dismissed as a civil matter, and subsequently a criminal revision alleging cheating under Section 380 IPC. The petitioner relied on a Supreme Court decision that a civil dispute does not preclude criminal proceedings. The High Court held that, under Uttar Pradesh law, an agreement to sell immovable property must be in writing and registered, rendering the oral agreement unenforceable. Consequently, the requisite intention to deceive for cheating could not be established, and the lower courts' orders were upheld. The appeal was dismissed.
Issues considered
- Whether an oral agreement to sell immovable property is enforceable under Uttar Pradesh law.
- Whether breach of such an agreement can constitute the offence of cheating under Section 380 IPC.
- Whether the existence of a civil dispute bars the institution of criminal proceedings under Section 175(3) of the BNSS.
Legislation cited
- BNSS Act — s. 175(3)
- Indian Penal Code — s. 380
- Registration Act, 1908 — s. 17, 49
- Transfer of Property Act — s. 54
- U.P. Civil Laws (Reforms and Amendment) Act, 1976
Subjects
- oral agreement
- sale deed
- cheating
- IPC 380
- Transfer of Property Act
- Registration Act
- civil vs criminal jurisdiction
- Supreme Court precedent
- Uttar Pradesh property law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 5444 of 2025
Shyam Kumar Jaiswal
.....Petitioner(s)
Versus
State Of U.P. And 3 Others
.....Respondent(s)
Counsel for Petitioner(s) : Priyanshu Mishra, Vaishali Yadav
Counsel for Respondent(s) : Amit Kumar Srivastava, Brajesh Kumar
Solanki, G.A., Pranjal Kesarwani
Court No. - 89
HON'BLE ANIL KUMAR-X, J.
1. Heard Sri Priyanshu Mishra, learned counsel for the petitioner, Sri Anil
Kumar Srivastava and Sri Pranjal Kesarwani, learned counsel for the
respondent and Sri R.K.Singh, learned AGA for the State are present.
2. Learned counsel for the petitioner has prayed for a direction to set aside
the impugned order dated 30.04.2025 passed by Court of District and
Session Judge, Mirzapur in Criminal Revision No. 05 of 2025 (Shyam
Kumar Jaiswal Vs. State of UP & Others) and order dated 09.12.2024 passed
by the learned Additional Chief Judicial Magistrate Court No. 1, Mirzapur in
Complaint case No. 16448 of 2024 (Shyam Kumar Vs. Anuradha & Others).
3. Learned counsel for the petitioner submitted that an oral agreement to sell
was entered into between the petitioner and respondent nos. 2 and 3,
whereby it was agreed that the respondents would execute a sale deed of
their house in favour of the petitioner after a period of three years. Pursuant
to the said agreement, the petitioner paid a sum of Rs. 3,50,000/- to
respondent no. 2 through RTGS. Thereafter, the respondents allegedly
demanded an additional amount of Rs. 2,50,000/-, which was also paid by
the petitioner in cash. However, despite receipt of the aforesaid amounts,
neither was the sale deed executed nor was the money returned even after
the lapse of the agreed period. Subsequently, the petitioner filed an
application under Section 175(3) of the BNSS, which was registered as
Complaint Case No. 16448 of 2024 (Shyam Kumar vs. Anuradha and
others). The said application was dismissed by the learned Magistrate on the
ground that the dispute between the parties pertains to a monetary
transaction arising out of an agreement for sale of property and is purely
civil in nature.
A227 No. 5444 of 2025
2
4. Aggrieved by the order dated 09.12.2024, the petitioner preferred
Criminal Revision No. 05 of 2025 (Shyam Kumar Jaiswal vs. State of U.P.
and others). It was contended before the revisional court that the petitioner
had been cheated by the respondents, who had deliberately failed to honour
the agreement. However, the said contention was not accepted. Learned
counsel submitted that the revisional court failed to appreciate that the mere
existence of a civil dispute does not bar criminal proceedings, as held by the
Hon'ble Supreme Court in Punit Beriwala vs. State of NCT of Delhi and
others, 2025 INSC 582. It was further submitted that the act of the
respondents in breaching the agreement amounts to cheating, as illustrated
under Illustration (H) of Section 380. It was lastly submitted by learned counsel
for the petitioner that both the courts below have erred in dismissing the application
under Section 175(3) BNSS by disregarding the law laid down by the Hon’ble
Supreme Court in Punit Beriwala (supra). It was, therefore, contended that the
impugned orders are liable to be set aside.
5. Heard learned counsel for the parties and perused the record. It is settled
that a mere breach of contract may give rise to an offence of cheating only
when it is shown that the intention to deceive existed at the very inception of
the transaction. Such an offence can be established only if the contract
allegedly breached is legally enforceable. Though, under general law, an
agreement to sell is not mandatorily required to be in writing or registered,
however, in the State of Uttar Pradesh, by virtue of the amendments
introduced in Section 54 of the Transfer of Property Act and Sections 17 and
49 of the Registration Act, 1908, through the U.P. Civil Laws (Reforms and
Amendment) Act, 1976, an agreement to sell immovable property is required
to be in writing and duly registered.
6. In the present case, the alleged agreement is purely oral and, therefore, has
no legal sanctity in the eyes of law. Consequently, the very foundation of the
petitioner's claim becomes untenable. In absence of a legally enforceable
agreement, the allegation of cheating cannot be sustained.
7. In view of the above, this Court does not find any illegality or infirmity in
the impugned orders passed by the courts below.
8. Accordingly, the appeal stands dismissed.
April 28, 2026
Ujjawal
(Anil Kumar-X,J.)
Digitally signed by :-
UJJAWAL
High Court of Judicature at Allahabad
Checking your session…