IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC NO.111 OF 2007 NAND LAL KEDIA & BINTU DEVI KEDIA VERSUS (1) THE STATE OF BIHAR (2) DM BHOJPUR (3) SP BHOJPUR (4) O/C, TOWN POLICE STATION ARRAH (5) GOPALJI SINGH (6) HRIDAY SINGH (7) JITENDA SINGH (8) KALI PRASAD (9) RAJ KUMAR SINGH (10) DEO BALLABH SINGH ----------- 5 11.02.2009. Heard learned counsel for the parties. 2. In the instant writ petition, petitioners pray for quashing the criminal proceeding including order dated 31.10.2006, passed by the Chief Judicial Magistrate, Bhojpur at Ara in Complaint case no. 1620C of 2004 dated 1.12.2004, whereby cognizance has been taken under sections 419/34 I.P.C. and summons have been issued to petitioners to face trial. 3. The complainant one Gopaljee Singh alleged that accused persons claiming the premises to be their own signed an agreement to sell the same, bearing Khata no. 1053, Khesra no. 2631 to 2641, situated in Mohalla Maulabagh, Police Station Kasba Arrah, district Bhojpur. The complainant paid a sum of Rs.10,000,00/-(ten lacs) to petitioner no.2, wife of petitioner no.1 in presence of witnesses. Subsequently, he could come to learn that the aforesaid land is non cultivable land of government of Bihar. He alleged that had he known the aforesaid facts he would not have paid money to the accused persons for purchasing the land. When the complainant demanded his money back the accused persons replied that they would return the money through cheque once the former returns copy of agreement. The complaint on such assurance returned the agreement copy. However, the accused persons retracted from their assurance and instead they forcefully took their signatures and threatened the prosecution with dire consequences. The accused persons have cheated the - 2 - petitioner of his money, as such, the instant complaint has been filed. 4. Learned counsel for the petitioners submits that the land in question was leased to their ancestors through lease deed dated 3.8.1914 for the purpose of construction of buildings for residence or shop with understanding that the term of lease shall be of 30 years. It is further submitted that the lease period had been further renewed. He also submits that no criminal prosecution can be carried against the petitioner in view of a decision rendered in case of H.R.P.Verma Vs the State of Bihar, reported in 2000 SC 2341 and in case of S.N.Palanitkar versus State of Bihar, reported in AIR 2001 2961. In the aforesaid decisions, the Apex court observed that mere breach of contract cannot give right for initiating criminal prosecution for cheating unless fraudulent and dishonest means have been adopted right from the beginnings of the transaction. . Learned counsel for the petitioners submits that even assuming the entire allegations to be true, no case of cheating by personation would be made out under section 416 of the I.P.C. 5. No one appeared for opp party. However, learned counsel for the State submits that the lease was of temporary nature for 30 years and the same was given for the purpose of erecting buildings for residence and shop for the use of lessor. He submits that as per clause (6) of lease condition as contained in annexure 2, the lessee shall inform the Collector of all changes of possession and ownership and unless this is done, the Collector will not be bound to recognize or accept any person or persons as the tenants on the land in the place of lessee. 6. Submission of the State is that aforesaid provision of the Penal code would be applicable in the instant case as the petitioner projected himself - 3 - to be an owner of the property and dishonestly received amount of Rs.10,000,00/- for the same. 7. The issue arising for consideration is whether the prosecution case disclose any offence under section 416 I.P.C. Section 419 I.P.C.provides the extent of punishment which can inflict for offence under section 416 I.P.C. is quoted hereinbelow: 416. Cheating by personation.- A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. 8. From reading of this section, it would appear that a person can be charged under aforesaid provision only if the offence attributes any of the three ingredients necessary for constituting the offence. The allegation or offence must allege that a person pretends himself to be some other person or he substitutes one person for some other person or he projects a person to be another person. 9. The alleged pretension that a person is the owner of a property of which he is not may constitute an offence in a given situation, but it would not constitute an offence of personation. For constituting an offence of impersonation it is essential that a person must have posed himself as another person or may have projected person as different person. In other words an act must be an attempt to disguise an identity. In the facts and circumstances of the case, this Court finds that petitioner had at no time pretended to be another person or projected anyone else to be some one else. The petitioner by projecting that the land belongs to him - 4 - and honestly by withholding the true status of the nature of land may or may not be committing an offence, but certainly the same will not attract an offence under section 416 I.P.C. In this view of the matter, it is observed that no offence under section 416 I.P.C. is made out against the petitioner and as such order taking cognizance dated 31.10.2006, passed by the Chief Judicial Magistrate, Bhojpur at Arrah in Complaint case no. 1620C of 2004 is quashed and the matter is remitted back to the leaned Magistrate for fresh consideration on the basis of materials on record. 10. The writ petition is thus allowed. Shashi. (S.P.Singh,J).