The Bombay High Court has granted anticipatory bail to two applicants accused under the Bharatiya Nyaya Sanhita, 2023, in a case where the complainant had received possession of the property in question. The judgment clarifies that the voluntary transfer of possession undermines the essential ingredient of deceit required for a cheating offence under Sections 318(4) and 3(5) of the BNS, reinforcing the principle that criminal liability cannot be inferred merely from contractual disputes involving property.
Background & Facts
The Dispute
The Applicants, Ramchandra @ Rajendra Pandurang Barde and Suhas Ramchandra Sawant, are accused in Crime No.167 of 2026, registered at Kasturba Marg Police Station, Mumbai. The Informant alleges that she paid Rs.18 lakhs to the Applicants for the purchase of a room, but that the Applicants failed to deliver clear title or execute any formal sale deed. She further claims that the Applicants misrepresented their ownership rights and induced her to pay the amount under false pretenses.
Key Facts
- The Informant paid Rs.18,00,000 to the Applicants on or about 15.01.2026.
- Upon payment, the Applicants handed over physical possession of the room to the Informant, who has been residing therein continuously since January 2026.
- No sale deed or registered agreement was executed, but possession was delivered with the mutual understanding of a future transfer.
- The Informant filed a complaint on 28.03.2026, alleging cheating and criminal breach of trust.
- The police registered Crime No.167 of 2026 on 05.04.2026.
- The Applicants have not been arrested as of the date of this order.
Procedural History
- 15.01.2026: Payment of Rs.18 lakhs made by Informant to Applicants.
- 15.01.2026: Physical possession of the room transferred to Informant.
- 28.03.2026: Informant files complaint with Kasturba Marg Police Station.
- 05.04.2026: Crime No.167 of 2026 registered under BNS Sections 318(4) and 3(5).
- 08.06.2026: Anticipatory Bail Application filed under Section 482 of BNSS.
The Parties' Positions
Relief Sought
The Applicants seek anticipatory bail in the event of arrest in Crime No.167 of 2026, praying for protection from custodial interrogation and conditions to ensure cooperation with investigation.
The Legal Issue
The central question was whether the voluntary delivery of possession of property, followed by continued occupation by the complainant, can constitute the offence of cheating under Section 318(4) and Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, in the absence of any evidence of fraudulent intent at the time of payment.
Arguments Presented
For the Appellant/Petitioner
Learned counsel submitted that the complainant has been in continuous, peaceful possession of the room since January 2026, which negates any claim of deception. He argued that the transaction, though informal, was mutually understood and executed. He relied on State of Haryana v. Bhagwan Das to contend that mere non-execution of a sale deed does not amount to cheating where possession has been delivered. He emphasized that the complainant has not been dispossessed and has not suffered any loss of control over the property.
For the Respondent/State
The Additional Public Prosecutor did not oppose the grant of anticipatory bail but sought to preserve the integrity of the investigation. He did not dispute the fact of possession transfer but argued that the absence of a registered document and the nature of the payment raised questions about the legitimacy of the transaction. He submitted that the investigation must proceed unhindered and that the Applicants should be available for questioning.
The Court's Analysis
The Court examined the nature of the alleged offence under Section 318(4) of the Bharatiya Nyaya Sanhita, which criminalizes deceitful inducement to deliver property. The Court noted that the essential ingredient is the dishonest intention at the time of inducing delivery of property. The Court observed:
"The fact that the complainant has been in continuous possession of the room since January 2026, without any dispute or attempt at dispossession, indicates that there was no fraudulent intent to deprive her of the property at the time of payment. The delivery of possession is a material fact that negates the very foundation of the cheating allegation."
The Court distinguished this case from those involving false representations about ownership or title, where possession is withheld or fraudulently obtained. Here, possession was delivered and retained. The Court held that a civil dispute over documentation or title cannot be converted into a criminal offence merely because the transaction was informal.
The Court further noted that the Applicants have no criminal antecedents and are willing to cooperate with the investigation. The conditions proposed by the Applicants were deemed reasonable and proportionate.
The Verdict
The Applicants succeeded. The Court granted anticipatory bail. In the event of arrest, the Applicants shall be released on furnishing a personal bond of Rs.50,000 and a solvent surety of like amount. They shall report to the Kasturba Marg Police Station every Monday and Thursday between 10:00 a.m. and 5:00 p.m., and shall appear before the Investigating Officer whenever summoned. They shall not tamper with evidence or influence prosecution witnesses. The order is effective immediately and remains in force until further orders.
What This Means For Similar Cases
Possession Transfer Undermines Cheating Allegations
- Practitioners must now argue that delivery of possession in property transactions is a strong indicator of absence of fraudulent intent under BNS Section 318(4).
- Where the complainant retains physical control of the property, criminal charges for cheating are unlikely to survive scrutiny unless there is clear evidence of false representation at the time of transfer.
Civil Disputes Cannot Be Criminalized Through Informal Documentation
- The judgment reinforces that failure to execute a registered sale deed, without more, does not constitute cheating.
- Lawyers should advise clients to document property transactions with written agreements, but the absence of such documents alone cannot justify criminal prosecution.
Proactive Cooperation Mitigates Custodial Risk
- The Court’s acceptance of reporting conditions demonstrates that voluntary compliance with investigation protocols can secure anticipatory bail even in serious BNS offences.
- Applicants should be prepared to submit to regular reporting and avoid any contact with witnesses to strengthen their bail applications.
