- (1.) HEARD learned counsel appearing for the petitioner, learned counsel appearing for the State and learned counsel appearing for the Opp. Party No.2. This application has been filed for quashing of the entire criminal proceeding of Complaint Case No.589 of 2008 including the order dated 14.12.2009 passed by Sri Dinesh Kumar, learned Judicial Magistrate, Koderma, whereby and whereunder, cognizance of the offence punishable under Section 420 of the Indian Penal Code has been taken against the petitioner.
(2.) BEFORE adverting to the submissions advanced on behalf of the parties, the case of the complainant needs to be taken notice of. It is the case of the complainant that the petitioner entered into an agreement with the complainant for selling a shop for consideration amount of Rs.1,10,000/-. As against that, a sum of Rs.30,000/- was paid, as an advance and rest of Rs.80,000/- was to be paid during the period of three years in installment and that apart, it was agreed upon that the complainant would also pay Rs.600 per month to the petitioner. Thereafter, the complainant did pay further a sum of Rs.39,000/- and thereby, in total Rs. 69,000/- was paid to the petitioner. When rest of the money was not paid, a legal notice was given to the complainant by the petitioner, calling upon him to pay the entire money. According to the petitioner, that notice was replied after expiry of six months wherein the complainant put forth his point that he would be paying only Rs.10,000/- towards rest of the amount. Thereafter, again a notice was sent to the complainant whereby excess demand than what was due to be paid by the complainant was made and it was stated that if the money is not paid, the agreement would be terminated. On such allegation, a complaint was filed being Complaint Case No.589 of 2008, alleging therein that the petitioner was committed an offence of cheating as he did not execute the sale deed, as had been agreed upon under an agreement. On such allegation, cognizance of the offence under Section 420 of the Indian Penal Code was taken against the petitioner, which is under challenge. Mr. Modi, learned counsel appearing for the petitioner submits that accepting the entire allegation to be true, no offence of cheating is made out, as the petitioner can never be said to have misrepresented or defrauded the complainant.
(3.) AS against this, learned counsel appearing for the Opp. Party No.2 submits that the shop, in question, never belongs to the petitioner rather it belongs to the wife of the petitioner, which fact was never divulged by the petitioner at the time of agreement, though that fact was divulged later on and that a clear cut stipulation was there in the agreement that the petitioner would execute the sale deed, but instead of executing the sale deed, further demand was made, which was excess than the agreed upon and, thereby, the petitioner certainly committed offence of cheating. In the context of the submission, one needs to be taken notice of the provision as contained in Section 415 of the Indian Penal Code, which reads as follows:- "Cheating -Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat". ;