- (1.) THIS application under Section 482 of the Code of Criminal Procedure is directed against the order dated 12.8.2003 passed in complaint Case No. 506 of 2003 whereby and whereunder the learned Judicial Magistrate, 1st Class, Hazaribagh took cognizance under Sections 406 and 420, IPC.
(2.) THE facts briefly stated are that O.P. No.2 complainant filed a complaint case in the Court of learned Chief Judicial Magistrate, Hazaribagh stating therein that she had expressed her desire to purchase a piece of land which was actually a rasta in Khata No. 366, plot Nos. 9357 and 9358 and price of the land was fixed at Rs. 25,000/ -. In pursuance of that, complainant O.P. No.2 entered into agreement with the petitioner for purchase of that piece of land. Thereafter, a sum of Rs. 10,000/ - was given to the petitioner in advance and the petitioner allowed her to construct latrine and tank over the same. She in pursuance of the agreement, constructed the latrine and tank over the same. But at the same time, there was agreement that balance amount of Rs.15,000/ - she (complainant) will pay to the petitioner -accused by April 2003 and when she reminded the petitioner to execute the sale deed in her favour but he avoided and ultimately, the petitioner executed the sale deed in favour of another person but the amount which was paid by the complainant by way of advance, was not returned to her in spite of several reminders she made to the petitioner and she even sent a notice to him through Advocate. Thereafter she has filed this case. Learned counsel appearing for the petitioner submitted that no case of cheating or criminal breach of trust is made out in view of the fact that the petitioner allowed the complainant O.P. No.2 to construct latrine and tank, as per complaint petition and she is still enjoying the facility and no obstruction of any kind has been put in enjoyment thereof. It was further submitted that petitioner has allowed the complainant -O.P. No. 2 to construct the latrine and tank, therefore, intention of the petitioner was never to cheat or commit breach of trust. But on the other hand, complainant -O.P. No.2 has failed to perform her part of the agreement, because as per the agreement, she was supposed to make payment of outstanding amount of Rs. 15,000/ - by April 2003. But from perusal of the complaint petition, it will appear that the complainant had never made an attempt to make payment of Rs.15,000/ - and to perform her part of agreement. Learned counsel further pointed out that this is a case of civil nature for which, a suit should be filed for specific performance of agreement in the facts and circumstances of the case. In support of his contention, he placed reliance upon AIR 1999 SC 1480 and referred to Para 2 of the judgment which is quoted herein below: "2. Section 415 of the Indian Penal Code which defines the offence of cheating illustrates it well in providing statutory illustrations. Illustration (g) is relevant for our purpose which reads as follows: . "A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonesty induces Z to advance money upon the faith of such delivery. A cheats but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract," 2003(3) JCR 78 and referred to para 2 wherein it has been stated that the petitioner had filed a complaint case and had paid Rs. 30,000/ - to the O.P. No.2 by way of advance and it was agreed that the opposite party Nos. 2 and 3 would execute the deed of sale on 16.3.1998. It was further alleged that the opposite party Nos. 2 and 3 promised that they would get signature of other co -shares of the deed, but when sale deed was not executed, the complainant filed a case under Section 420 IPC. But it was held that since there is no intention of cheating as there is no inducement or anything like that, therefore, cognizance taken in the case was quashed by the learned Court below.
(3.) ON the other hand, learned counsel appearing for the complainant -O.P. No.2 submitted that there is no averment in the complaint petition that she was ready to make payment of Rs.15,000/ - to perform her part of the agreement; rather in this connection she met several times to the petitioner and requested him to execute sale deed, but he refused to execute the sale deed and ultimately executed the sale deed in favour of another person and this fact will be clear from the notice which she sent to the petitioner through Advocate wherein it is mentioned in Para 4 that she was ready to make payment of outstanding amount of Rs.15,000/ - and requested him to execute the sale deed, but neither he executed the sale deed nor returned the sum of Rs.10,000/ - which she had given to the petitioner by way of advance. In this connection, reliance has been placed upon 2001 (3) Supreme Court Cases 19 of which, Para 8 is quoted herein below: "8. There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed. " and submitted that even when the case is of civil nature, still there is no bar in lodging criminal prosecution and in the facts and circumstances, cognizance taken in the case does not require any interference and prayer for quashing of the same is fit to be quashed.;