“We are constrained to pass this detailed speaking order, as it is noticed that, notwithstanding the law clearly laid down by this Court on the difference between a breach of contract and the criminal offence of cheating, we are continuously flooded with cases where the police register an FIR, conduct investigation and even file chargesheet(s) in undeserving cases.” stated the displeased bench of Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar over the pattern of civil disputes being registered as criminal cases by the State of Uttar Pradesh. The court also went on to impose a cost of 50,000 on the State of Uttar Pradesh for flooding the court with cases of civil wrongs being made the subject matter of criminal proceedings.

The bench was hearing a petition seeking the quashing of criminal proceedings initiated against the petitioner under Sections 420, 406, 354, 504, and 506 of the IPC.

The Appellants had entered into an oral agreement in June 2020 to sell a property to Respondent No. 2 for ₹1.35 crore. Respondent No. 2 claimed to have paid ₹19 lakh as part of the consideration but failed to pay the agreed 25% advance by the deadline. A cheque of ₹10 lakh issued by Respondent No. 2 also bounced due to insufficient funds. Subsequently, the Appellants sold the property to another buyer at a lower price (₹90 lakh) and refused to refund Respondent No. 2, citing losses. Instead of pursuing civil remedies, Respondent No. 2 approached the police, leading to an FIR under Sections 420 (cheating), 406 (criminal breach of trust), 354 (assault or criminal force to outrage modesty), 504 (intentional insult), and 506 (criminal intimidation) of the IPC. Notably, two prior complaints by Respondent No. 2 had been dismissed by the Metropolitan Magistrate, Kanpur, which held the dispute to be purely civil. Despite this, the police filed a chargesheet, and the Magistrate took cognizance, and aggrieved by the same the Appellants approach the Supreme Court.

Primarily the bench came down heavily on the State of Uttar Pradesh by observing, “During the last couple of months, a number of judgments/orders have been pronounced by this Court, especially in cases arising from the State of Uttar Pradesh, deprecating the stance of the police as well as the courts in failing to distinguish between a civil wrong in the form of a breach of contract….”

The bench further reiterated the settled legal position regarding when a breach of contract may attract criminal liability. It observed that mere non-fulfilment of a contractual obligation, by itself, does not amount to a criminal offence unless it is established that the accused had a dishonest or fraudulent intention right from the inception of the transaction. In doing so, the Court relied on the decision in Kunti and Another v. State of Uttar Pradesh and Another (2023) 6 SCC 109, wherein reference was also made to Sarabjit Kaur v. State of Punjab and Another (2023) 5 SCC 360.

The Court also reiterated the ingredients necessary to attract an offense under Section 420 of the IPC, as laid down in Lalit Chaturvedi and Others v. State of Uttar Pradesh and SCC Online SC 171, wherein reliance was placed on the earlier judgment in Mohammed Ibrahim and Others v. State of Bihar and Another (2009) 8 SCC 751

Following are the ingredients:

“(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.”

The bench then highlighted the duty and obligation of the court to exercise a great deal of caution in issuing process, particularly when the matter is essentially of a civil nature and at the same time also called out the public perception of opting for criminal procedure as the civil remedies are time-consuming.

A reference was also made to Thermax Limited and Others v. K.M. Johny and Others (2011) 13 SCC 412, where it was held that courts should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegation may constitute both civil and criminal wrongs. This reference was made in the context of Court noting recurring cases being encountered wherein parties repeatedly attempted to invoke the jurisdiction of criminal courts by filing vexatious complaints, camouflaging allegations that are ex facie outrageous or are pure civil claims.

The court also clarified when a summoning order is to be passed primarily, the Magistrate should carefully scrutinize the evidence on record and may even put questions to the complainant/investigating officer, etc. The summoning order has to be passed when the complaint or chargesheet discloses an offence and when there is material that supports and constitutes essential ingredients of the offence.

Lastly, the court referred to the judgment of Sharif Ahmed and Another v. State of Uttar Pradesh and Another 2024 SCC OnLine SC 726 where it cautioned courts to check such attempts of making out a criminal case on the basis of vague and ex facie false assertions and stated that “Further, Sharif Ahmed (supra) exposits the legal position relating to the ingredients and contents of a chargesheet, drawing upon several earlier judgments of this Court which elucidate the contents of a police report under Section 173(2) of the Cr.P.C. It also clarifies the course of action to be adopted by the Magistrate when the chargesheet is found to be incomplete or vague in content.”

Ultimately, the bench allowed the present appeal, quashing the FIR and the resultant proceedings, including the chargesheet.

Case Title: Rikhab Birani Vs The State Of Uttar Pradesh| Slp(Crl) No. 008592 - / 2024

Advocate for Petitioner(s): Mr. Manohar Pratap, AOR & Ors

Advocate for Respondent(s): Mr. Ankit Goel, AOR, Mr. Nikhil Sharma, Adv & Ors