IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Misc. Application No. 279 of 2005 N.K. Lohia, S/o H.P. Lohia, R/o 145, G.T. Road, Sahibadad, District Sahibabad, U.P. ……Petitioner. Versus 1. State of Uttaranchal, 2. Raja Dogra, S/o Late Amarnath Dogra, R/o 15/1, Subhash Road, P.S. Dalanwala, District Dehradun …..Respondents. Sri Ramji Srivastave, learned counsel for the petitioner. Sri Nandan Arya, learned A.G.A. for the State. Dated: 18-2-2008 Hon’ble B.C. Kandpal, J. By way of this petition, U/S 482 of the Cr.P.C., the petitioner, who was been summoned to face the trial U/S 420 I.P.C., vide summoning order dated 20-3-1999, passed by Judicial Magistrate, Dehradun in Criminal Case No. 184 of 2003, Raja Dogra Vs. N.K. Lohia, U/S 420 I.P.C., which was subsequently confirmed in the revision vide judgment and order dated 30-10-2004, has prayed for quashing the proceedings of aforesaid criminal case. 2- Brief facts of the case are that the respondent No.2 Raja Dogra filed a complaint U/S 420 I.P.C. before the Judicial Magistrate Ist, Dehradun stating therein that co-accused Ram Swaroop wanted to sell his 0.76 (4 bighas) land, situated at village Dhakpatti, Rajpur Road, Dehradun, to the respondent No.2 on the sale consideration of Rs. 9,60,000-00. The complainant agreed to purchase the land of Ram Swaroop and therefore he paid a sum of Rs. 1, 50,000/- to him as earnest money and an agreement to sell was executed on the same day, i.e. 25.10.1997. The complainant has further alleged in the complaint that instead of executing the sale deed the accused Ram Swaroop has cheated the complainant by grabbing the earnest money. The complaint further reveals that when he made repeated requests to the accused then he replied that he did not intend to execute the sale deed. It is further alleged in the complaint that N.K. Lohia the petitioner was instrument in getting the sale deed executed and he also inspired the complainant to purchase the land from Ram Swaroop. 3- After filing the complaint, the statement of the complainant was recorded U/S 200 Cr.P.C. and, therefore, the learned Magistrate having satisfied with the fact that there was a prima facie case to proceed against the accused/petitioner, passed the summoning order on 20-3-1999, against the petitioner to face the trial U/S 420 I.P.C. The petitioner, being aggrieved by the aforesaid summoning order, preferred the revision before the Court of Sessions Judge, Dehradun, which was dismissed vide judgment dated 11-2-2005. Thereafter, the petitioner feeling aggrieved by the aforesaid both the orders, has approached this court by way of filing the petition U/S 482 Cr.P.C. for quashing the criminal proceedings pending against him. 4- Heard Sri Ramji Srivastave, learned counsel for the petitioner and learned A.G.A. for the respondent No.1. None has appeared on behalf of respondent No.2. 5- The documents filed along with the petition clearly go to show that the agreement to sell was executed between the parties pertaining to the land in question. As per the allegations made in the complaint, the accused had changed his mind and did not perform his part by way of executing the sale deed. Therefore, the complainant had grievance against the accused Ram Swaroop and N.K. Lahia to initiate the criminal proceedings against them. 6- Having considered the material available before me, I am of a positive view that the criminal proceeding against the accused/petitioner N.K. Lohia, is an abuse of process of Court. The material available before me also reveal that there was a dispute between Ram Swaroop, who is now dead and the complainant/respondent No.2, Raja Dogra. The only allegation against the accused/petitioner N.K. Lohia is that he was an instrumental between Ram Swaroop and Raja Dogra for getting the sale deed executed. There appears no mens rea on the part of petitioner N.K. Lohia, therefore, I am of the view that the criminal proceeding initiated against him, is nothing but a sheer harassment to him. The guilty intention of an accused attracting the essential ingredients of the offence of cheating is the mens rea which must be established in order to constitute the offence of cheating and the intention to deceive should be in existence at the time when the inducement was offered. I am unable to reach to the conclusion that there is any unlawful gain to the petitioner in the instant case. Further at most in case if it is a breach of contract between the parties, even then the same cannot give rise to the criminal prosecution for cheating, unless fraudulent and dishonest intention is shown right from the beginning of the offence, i.e. at the time when the offence is said to have been committed. The Hon’ble Supreme Court in the case of S.W. Palanitkar & Ors Vs. State of Bihar & Anr. reported in (2002) 1 SCC 241, has held that the fraudulent or dishonest intention must be shown to exist at the time of making of inducement otherwise mere failure to keep up the promise subsequently, cannot be presumed as an act leading to cheating. The Hon’ble Apex Court in another case of Haridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. reported in (2002) 4 SCC 168, has also held that in case if the allegation in the complaint as a whole not indicating expressly or impliedly any intentional deception on the part of the accused right from the beginning of the transaction, would not make out an offence punishable U/S 420 I.P.C. or allied offences. The complainant could have approached the competent court of civil jurisdiction to get the sale deed executed in his favour but in any manner I do not find any occasion with the complainant to initiate the criminal proceeding in which he had the civil remedy available for filing the suit for specific performance. 7- It has been brought to my knowledge that accused Ram Swaroop is now dead and it is in the complaint that Ram Swaroop took a sum of Rs. 1,50,000/- as earnest money from Raja Dogra. N.K. Lohia accused/petitioner this way also does not come into picture. 8- The respondent No.2 in paragraph-17 of the counter affidavit has quoted the decision of the Hon’ble Supreme Court in the case of Trisuns Chemical Indus. Vs. Rajesh Aggarwal, reported in A.I.R. 1999(S.C.) 3499. I have gone through the judgment cited in the aforesaid paragraph and I am of the view that on the fact and circumstances of the present case this judgment has no application. The allegation made in the complaint itself do not make out a prima facie case of cheating against the accused/petitioner and in case if the criminal proceeding against the petitioner is permitted to continue, the same would amount to abuse of process to Court. 9- On the basis of discussions made above, I am of the view that the proceedings of Criminal Case No. 184 of 2003, Raja Dogra Vs. N.K. Lohia U/S 420 I.P.C. pending in the Court of Judicial Magistrate (Ist), Dehradun, is liable to be quashed. 10- Accordingly, the petition is allowed. The proceeding of Criminal Case No. 184 of 2003, Raja Dogra Vs. N.K. Lohia, U/S 420 I.P.C. pending in the Court of Judicial Magistrate (Ist), Dehradun, is hereby quashed. (B.C. Kandpal, J.) ISB