Ravi Nath Verma, J. - (1.) BY the instant revision application, the petitioners have challenged the order dated 03.10.2013 passed by Smt. Archana Kumari, learned Judicial Magistrate, Ranchi in C -2179/09 whereby and whereunder the application filed by the petitioners under Section 245 of the Code of Criminal Procedure (in short 'the Code') for their discharge has been rejected and the court below has fixed the date for framing of charges.
(2.) AT the instance of present opposite party No. 2/complainant, the aforesaid complaint case was filed on the allegation that the petitioner No. 1 entered into the agreement with the complainant for purchase of 37 decimals of land on 09.06.2006 on a consideration amount of Rs. 1,48,000/ -. Out of that an amount of Rs. 38,500/ - has been shown to be paid to the complainant but in fact no such part consideration amount had ever been paid to him. The petitioner No. 1 had assured the complainant that he would apply for loan from a bank on the basis of the said agreement and after getting loan he would pay the entire consideration amount. It is also alleged that the complainant being uneducated person, believed on the assurance of petitioner No. 1 but when he approached the petitioner for payment, he denied to purchase the land and assured to return the original agreement deed. Later on, the same petitioner approached the complainant to sale only 20 decimals of land out of 37 decimals which the petitioner No. 1 agreed to purchase for his acquaintance Chitranjan Singh and Uma Singh whereafter a deed was executed and in the deed though it was mentioned that Rs. 1,00,000/ - by cash has been paid as consideration amount to the complainant/opposite party but in fact only Rs. 55,000/ - has been paid through bank draft. In the sale deed, petitioner No. 1 is also a witness. It is also alleged that the petitioners with a view to grab remaining 17 decimals of land of the complainant/opposite party filed a Complaint Case No. 389 of 2007 in the court of Chief Judicial Magistrate, Ranchi and the court after recording the evidence of the present petitioners took cognizance of the offence but subsequently the said complaint case was dismissed due to non -prosecution. It further appears from the record that on the basis of the above allegation the court after inquiry, took cognizance of the offence under Sections 323/341/211/420 of the Indian Penal Code and thereafter two witnesses have been examined before framing of charge. When the petition under Section 245 for discharge was filed by the petitioners, the same was rejected as indicated above. Learned counsel for the petitioners assailing the order impugned as being erroneous further submitted that the dispute being civil in nature relating to transfer of land, allowing criminal proceeding to continue against the petitioners would tantamount to abuse of process of the court. It was also submitted that a Title Suit bearing No. 187 of 2009 is pending in the court of Sub Judge, Ranchi at the instance of the petitioners and the issues involved are almost similar in nature and only with an intention to force the petitioners to withdraw the said suit, this criminal case has been instituted and none of the ingredient responsible to constitute offence under Section 420 of the Indian Penal Code is available on the record. It was also submitted that the order impugned being cryptic and as no reason has been assigned, it is fit to be set aside and the petitioners deserve to be discharged.
(3.) AT the very outset, it is necessary to discuss that on perusal of the complaint, it is apparent that there was an agreement to sale the land and the consideration amount was also fixed and out of that a sum has been shown to be paid to the complainant but actually no amount had ever been paid. It further appears that this petitioner had though assured the complainant that he would apply for loan from bank and after getting the said loan, he would pay the entire consideration amount but later on refused to purchase the land but again approached the complainant to sale part of the land to his acquaintance and the deed was executed and though in the deed the entire consideration amount was shown to be paid in cash but actually the less amount had been paid through bank draft. Apparently, the main offence alleged to have been committed by the petitioner is cheating, punishable under Section 420 of the Indian Penal Code. In a case of Hridaya Ranjan Prasad Verma v. State of Bihar; : (2000) 4 SCC 168 the court while scanning the definition of cheating and breach of contract held as follows: "In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.";