- (1.) HEARD learned counsel for the petitioner and learned counsel for the State as also learned counsel for the complainant O.P. No.2.
(2.) THE petitioner is aggrieved by the order dated 23.1.2010 passed by Sri Ravi Ranjan, learned Judicial Magistrate, 1st Class, Dhanbad, in C.P. Case No. 852 of 2004, whereby the application filed by the petitioner for discharge has been rejected by the Court below finding that there were sufficient materials on record to frame charge against the petitioner under Sections 406 and 420 of the I.P.C. The facts of the case lie in a short compass. The complainant entered into an agreement with the petitioner for letting out his premises on monthly rent for running a shop. According to the complainant case, the leased portion was part and parcel of Municipal Holding No. 580 of Ward No. 15/17 in Dhanbad, purchased by the petitioner by registered Sale Deed No. 6503 dated 30.10.1995. It is stated that the portion of the said property was leased out to the complainant by the petitioner for running a shop on monthly rental of Rs.600/- and on a security deposit of Rs.50,000/-, and the complainant entered into the leased property and started his business of scooter and motor parts and STD over the said property since 1.5.1996. There dispute arose between the parties on and from 27.5.2004, when suddenly the shop of the complainant was demolished under the orders of the S.D.O., Dhanbad, by Bank More Police Officials, on the plea that the tenanted premises was situated on the public land. It is alleged that due to the said demolition, the complainant suffered a loss of Rs. 2.5 lakhs as the loss of the scooter and motor parts, which were kept in the shop and loss of damage of furniture worth Rs.50,000/-. It is also alleged that when the complainant asked the petitioner to move the appropriate authority against the alleged illegal demolition, the petitioner did not take any action, nor the petitioner had returned the security deposit of Rs.50,000/- of the complainant. With these allegations, the complaint petition was filed by the complainant O.P. No. 2 in the Court of Chief Judicial Magistrate, Dhanbad, which was registered as C.P. Case No. 852 of 2004. It appears that the complainant supported his case in his statement recorded on solemn affirmation and some witnesses were also examined before charge. Subsequently, the petitioner filed his application for discharge, which was rejected by the Court below holding that there were sufficient materials against the petitioner to frame charge under Section 406 and 420 of the IPC.
(3.) LEARNED counsel for the petitioner has submitted that the petitioner has been falsely implicated in this case. It has also been submitted that admittedly, according to the complaint case itself, the leased property was the purchased property of the petitioner through Sale Deed No.6503 dated 30.10.1995 and the portion of the property thereafter was leased to the complainant. There was no dispute between the petitioner and the complainant as the complainant was running his shop in the said premises since 1.5.1996. The shop was demolished under the encroachment removal drive by the District Authorities on 27.5.2004 and accordingly it cannot be said that at the time of entering into the lease agreement, the petitioner was having the fraudulent and dishonest intention for cheating the complainant. Learned counsel submitted that the complainant may have a civil remedy, but no offence can be said to be made out against the petitioner under Sections 406 and 420 of the I.P.C., even if, the entire allegations made in the complaint petition are accepted in entirety. Learned counsel placed reliance upon the decision of the Supreme Court of India in Dalip Kaur and Ors. Vs. Jagnar Singh and Anr., reported in 2009 (14) SCC 696, wherein it has been held that for making out the case under Section 420, 415, 405 and 406 of the I.P.C., fraudulent and dishonest intention must exist from the very inception when the promise or representation was made. A pure and simple breach of contract does not constitute an offence of cheating. It has been held that in absence of fraudulent and dishonest intention from the very inception, non-refunding of amount of advance, which results in simply a breach of contract does not constitute cheating or criminal breach of trust. Placing reliance on this decision learned counsel has submitted that the impugned order cannot be sustained in the eyes of law.;