- (1.) HEARD learned counsel appearing for the petitioners and learned counsel appearing for the opposite party no.2. This application has been filed for quashing of the order dated 4.3.2008 passed by the then Judicial Magistrate, 1st class, Jamshedpur in Complaint Case No.1016 of 2007 whereby and whereunder cognizance of the offence punishable under Sections 420 and 120B of the Indian Penal Code has been taken against the petitioners. It is the case of the complainant that the complainant entered into an agreement with the accused no.4, an authorized agent of Sardar Bahadur Sir Inder Singh Trust to purchase a piece of land belonging to the trust for a consideration of Rs.95,50,000/ -. Accused no.4, on receiving part payment of Rs.80,000/ - executed a deed for agreement of sale and made a promise that sale deed would be executed subsequently. Apart from him, these two petitioners who happen to be the trustees of the said trust also promised that possession of the land would be given to him and that the sale deed would be executed. But neither the possession was given nor sale deed was executed. Meanwhile, dispute arose in between the accused no.4 and the petitioners and hence, the accused no.4 filed a Title Suit No..87 of 2005 which ended in a compromise. In spite of that sale deed was not executed and therefore, the complainant had to lodged a Money Suit No.1 of 2007 against the petitioners and others. It appears that the complainant on being paid a sum of Rs. 8 lac by the accused no.4 withdrew the case as against accused no.4. However, a complaint was lodged which was registered as Complaint Case No.1016 of 2007 in which cognizance of the offence was taken under Sections 420 and 120B of the Indian Penal Code, vide order dated 4.3.2008 which is under challenge.
(2.) MR .R.S.Majumdar, learned Sr. counsel appearing for the petitioners submits that these two petitioners are the trustees of the trust known as Sardar Bahadur Sir Inder Singh and they had never entered into an agreement with the complainant, rather accused no.4, who was an authorized agent of the trust had entered into an agreement with the complainant and thereby the petitioners cannot be said to have committed offence under Section 420 of the Indian Penal Code even if the sale deed had not been executed on behalf of the trust. Learned counsel further submits that the complainant for recovery of money which had been paid to accused no.4 did file a money suit. Subsequently, the complainant having received Rs.8 lac from the accused no.4 withdrew the suit as against accused no.4 and under the circumstances, the order taking cognizance can never be sustained as this never happens to be a case of criminal breach of trust, rather it is out and out a case of breach of trust, for which complainant had already brought a suit and under the circumstances, the order taking cognizance is fit to be set aside. As against this, learned counsel appearing for the opposite party no.2 submits that it is not that no allegation is there in the complaint against the petitioners, rather the allegations are there that at the instance of these petitioners, accused no.4 had entered into agreement with the complainant to sell the land and had promised to execute the sale deed. Beside him, these two petitioners had also given promise that the sale deed would be executed but the sale deed had never been executed and thereby these petitioners can certain be said to have cheated the complainant.
(3.) IN the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegation made in the complaint does constitute offence of cheating or not ?;