f^'S."'\ it,.!;!"'"—-, %.. ''ss":^ '"^..SM.^ :6y^5'' -f^ HIGH COURT OF CHHATTISGARH, BILASPUR PETITIONERS/; (Accused) RESPONDENT; Criminal Misc. Petition No. 166 of 2009 1. Sanjay Singh, S/o Bajrang Singh, aged about 34 years; 2. Bajrang Singh, S/o Late Raj Bhushan Singh, aged about 75 years; Both R/o Maharana Pratap Nagar Tifra, Police Station Civil Line, Bilaspur Versus The State of Chhattisgarh, through Police Station Civil Line, Bilaspur {Petition under Section 482 of the Code of Criminal Procedure, 1973} Present: Mr. Malay Kumar Bhaduri, counsel for the petitioners. Mr. Sanjeev Kumar Agrawal, Panel Lawyer for the State/ respondent, Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORAL ORDER (31-7-2009) 1. This petition is for quashment of the order dated 28-2-2009 passed by the 2nd Additional Sessions Judge, Bilaspur in Criminal Revision No. 142/2008 affirming the order dated 8-8-2008 passed by the Chief Judicial Magistrate, Bilaspur in Criminal Case No.2907/2006, whereby learned Chief Judicial Magistrate has framed charge of offence punishable under Sections 420, 294 & 506 (2) of the I.P.C. against the petitioners. 2. Order of quashment of the above charges is prayed on the ground that agreement between the parties for specific performance of the suit is purely civil in nature and any continuance of criminal proceeding and framing of charge would amount to abuse of the process of the Court, 3. I have heard learned counsel for the parties and perused the material available on record. 4. Learned counsel for the petitioners vehemently argued that the petitioners & complainant Rajendra Das Gupta have into an ^yagreement for sale of the land on 28-6-2005. Copy of the F.I.R. and charge sheet reveal that after refusal to perform the part by the petitioners, F.I.R. has been lodged and charge sheet was filed. Learned Chief Judicial Magistrate has framed charge against the petitioners, same was assailed in criminal revision, but by the impugned order learned 2 Additional Sessions Judge, Bilaspur has dismissed the criminal revision. Learned counsel further submits thatthe alleged actof the parties is squarely covered within the meaning of specific performance of contract and breach thereof is not the offence of cheating. Learned counsel placed reliance in the matter of V.Y. Jose & Anr. v. State of Gujarat & Anr. in which the Apex Court has held that in absence of existence of dishonest intention on part of accused, offence of cheating is not maintainable. Learned counsel further placed reliance in the matter of Harmanpreet Singh Ahluwalia & Ors, v. State of Punjab & Ors. in which the Apex Court has held that failure to perform the promise is not cheating and complainant is required to show prima facie culpable intention at the time of making initial promise. Learned counsel also placed reliancein the matter of Tej Singh s/o Somat Singh and others v. Rewa Ram s/o Daulat Ram Balecha andothers3 in which the M.P. High Court has held that fraudulent or dishonest intention at the time of making the promised is necessary ingredient for the offence of cheating, mere failure to perform the promise is not cheating. 5. On the other hand, learned counsel appearing on behalfofthe State/ respondent opposed the petition and submitted that learned Court below has framed charge on the basis of charge sheet which prima facie discloses the ingredients of the offence alleged against the petitioners. F.I.R. lodged on behalf of fhe complainant reveals that there was contract for sale of land, but the present accused persons have denied the receipt of advance and refused to sell the land and also committed the offence punishable under Sections 294 & 506B of the I.P.C. 6. At the time of framing charge, Court is not required to examine the material on the basis of its evidentiary value, the only test for ' 2009 AIRSCW 307 ^2QQ9_AIR SCW 3976 l,.-,.^sBiiii ^ 'framing of charge is whether the allegation made in the charge sheet is admitted by the accused in its face value, the same would be sufficient for conviction of the accused and even raises doubt about the commission of offence for framing of charge. 7. Copy of the F.I.R. reveals that when the complaint requested the petitioners for transfer of land, the petitioners refused to transfer the same and specifically told that they have not received any money from the complainant and also abused & threatened the complainant. This is not the case of simple refusal to perform their part of contract by the petitioners, but this is a complete denial of any contract and receipt of advance. There cannot be any straitjacket formula for presumption that deceptive intention of the accused was from its inception or subsequently developed. 8. Having considered the case on the basis of material adduced on behalf of the prosecution, denial of receipt of advance shows that the petitioners were not ready to perform their part of contract or they are not ready to accept that have received any advance for sale of land, rather they have received advance to deceit the person which is prima facie materialfor drawing inference that deceptive intention of the petitioners was from its inception. Act of the petitioners is also the cause of actionfor failing to perform civil liability but only on the ground that facts may give rise to a civil claim would not amount to an offence. As has been held by the Apex Court in the case of Lalmuni Devi (Smt.) v. State of Bihar and others4 criminal proceeding cannot be quashed on the ground that case falls under the category of civil wrong. Para 8 of the said judgment of the Apex Court read thus, "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 settle 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 bestated, 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." yoma 9. Consequently, charge under Sections 420, 294 & 506 (2) of the I.P.C. framed by the Chief Judicial Magistrate against the petitioners is not unfounded and no interference is called for under Section 482 of the Cr.P.C. The petition is, therefore, liable to be dismissed and it is hereby dismissed. §^/_ -~ T. P. Sharma Judge es»;E3. ^1"' ^'; ::6'" ^