1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (APPLN) NO.4014 OF 2008 (JUBAIR DADULLAKHAN JAGIRDAR..VS.. ASHOK PREMRAJ VARMA & ANR.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Nirbhay Chavhan h/f. Mr. M. Anilkumar, Advocate for Applicant. Mr. Amol Mardikar, Advocate for Respondent No.1. Mr. D.B.Yengal, A.P.P. for respondent/State. CORAM : M.L.TAHALIYANI, J. DATE : APRIL 25, 2011. Heard learned counsel for the parties. 2. The applicant, being aggrieved by the judgment of learned Sessions Judge, Chandrapur in Criminal Revision No.139 of 2007 has approached this Court for quashing the proceedings pending before the Judicial Magistrate First Class, Warora in Criminal Complaint No.14 of 2006. 3. The learned Magistrate, by his order dated 18th September, 2006 in the above stated complaint, had come to the conclusion by a reasoned order that there was a prima- facie case against the petitioner for the offence punishable under Section 420 of the Indian Penal Code. As far as the other accused in the said complaint i.e. accused Nos. 2 to 5 were concerned, it was stated by the learned Magistrate that no prima-facie case was made out. Hence, they were discharged after recording evidence before charge, this being a case to be tried as warrant case. 2 4. The petitioner filed revision petition before Sessions Court at Chandrapur. The same was decided by the learned Ad-hoc Additional Sessions Judge-2 on 25th April, 2008. The learned Additional Sessions Judge, after examining the order of the learned trial Court, had come to a conclusion that there was no scope for interfering with the order of the learned trial Court. He had extensively dealt with the facts of the case and was of the view that a prima- facie case for trying the petitioner for the offence punishable under Section 420 of the Indian Penal Code was made out. 5. The petitioner has submitted that the orders of both the Courts below suffer from severe infirmities inasmuch as the Courts below have not taken into consideration that respondent No.1 had not been able to demonstrate that the petitioner had dishonest intention since inception of the agreement. Briefly stated there was an agreement for sale executed by the petitioner in favour of respondent No.1 for sale of landed property for a consideration of Rs.7,12,600/-, out of which Rs.1,41,000/- was paid as earnest money on 25th October, 2002. The proposed date for executing sale deed was 31st March, 2003. It is the case of the petitioner that respondent No.1 did not appear before the Registrar for performance of his part of the contract and therefore, sale deed could not be executed. It is submitted that there was no dishonest intention on the part of the petitioner. According to the petitioner, even if there is any breach on the part of the petitioner, the same is purely of civil nature and that the criminal proceedings have been filed by respondent No.1 against the petitioner maliciously. 3 6. It was submitted on behalf of respondent No.1 by learned counsel Mr. Mardikar that the respondent had since beginning taken a stand that the petitioner had accepted an additional amount of Rs.50,000/- after execution of the agreement for sale. It is submitted that this is sufficient enough to prima-facie demonstrate that there was dishonest intention on the part of the petitioner to induce respondent No.1 to part with the amount. 7. During the course of hearing the learned counsel for the petitioner could not tell the Court as for how much amount the property in question has now been sold. The learned counsel has also not been able to deny or admit that the petitioner had accepted additional amount of Rs.50,000/- after the agreement for sale. In this regard, it may be noted here that as per terms and conditions, the balance amount was to be paid at the time of execution. The case of respondent No.1 is that he had attended the office of Sub- Registrar on 31st March, 2003 to make the balance payment and to get the document executed. The petitioner, however, did not turn up. 8. The learned counsel for the petitioner has invited my attention to the observations made by the Hon'ble Supreme Court in paragraph 15 of the judgment in Hridaya Ranjan Pd. Verma Vs. State of Bihar, reported at 2000 (4) SCC 168. Paragraph 15 of the said judgment reads thus : “15. 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 4 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.” 9. It was submitted by the learned counsel Mr. Nirbhay Chavhan that there is no material at all to show that the petitioner had dishonest intention at the inception of the transaction. Unless respondent No.1 had been able to demonstrate this ingredient of the offence of cheating, process could not have been issued against the petitioner. It is, therefore, submitted that it is gross abuse of process of law and therefore, the prosecution pending against the petitioner needs to be quashed. 10. Mr. Mardikar, learned counsel for respondent No.1, on the other hand, has submitted that the questions of facts could not be decided in these proceedings and same should be left to the decision of the trial Court. Mr. Mardikar has further submitted that the intention, whether it existed at the inception or otherwise, could be gathered from the other facts of the case which will be unfolded in detail during the course of the trial. It is submitted that there cannot be any direct evidence for proving the intention. It is to be gathered from the facts and circumstances of the case. In the present case, respondent No.1 had been able to call information from 5 the Bank to show that two demand drafts of Rs.25,000/- each had been paid to the petitioner on 16th September, 2003 i.e. after the date of notice. The learned advocate for the petitioner has not been able to admit or deny these facts. In the circumstances, I am of the view that the case has been thoroughly examined by the learned revisional Court and this Court cannot go beyond that. The petitioner has not been able to demonstrate that this Court shall exercise its inherent powers to interfere with the course of trial. The petition, in my view, needs to be dismissed and is accordingly dismissed. JUDGE RR..