IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.15632 of 2010 Ganesh Singh & Anr Versus State Of Bihar & Anr ---------------------------------- 4 14.12.2011 Petitioners have preferred instant petition against an order dated 21.10.2009 passed by B.K. Rai, Judicial Magistrate, 1st Class, Daudnagar, Gaya in Complaint Case No.134 of 2009 whereby and where under petitioners have been summoned to face trial for an offence punishable under Section 420 /34 of the Indian Penal Code. O.P. No.2 Smt. Madhuri Devi filed complaint petition before the S.D.J.M., Daudnagar, Aurangabad on 01-05-2009 on the allegation that there was negotiation in between complainant (O.P. No.2) with accused petitioner with regard to sale of land bearing Plot No.393 appertaining to Khata No.210 lying at village-Akora on a consideration amount of Rs.4,60,000/- out of which Rs.2,00,000/- was paid by the complainant and in token thereof, Jarbayana was executed with respect to 40 decimals which the accused have got in his share vide Partition Suit No.85 of 1970. The complainant further discloses that though there happens to be no boundary disclosed in the Schedule, the complainant put belief upon the disclosure of accused that at its eastern side, a road lies. When the other Patidars came to know, they raised an objection. Then, thereafter, notice was served upon accused where upon they failed to respond. As such, the complainant inferred that the accused persons deceived and cheated Rs.2,00,000/-. Contention on behalf of the petitioners is that the order of cognizance followed with summoning of accused by the order impugned 2 happens to be bad in law as well as on facts. Then submitted that neither the complaint petition nor from the S.A., statement of the witnesses it is evident that the accused had negotiaed with the complainant with an intention to deceive and dupe. Unless and until there happens to be positive evidence on this score, the subsequent allegation as alleged, even taking into account will not justify prosecution of petitioners under Section 420/34 of the Indian Penal Code. Now coming to factual aspect it has been submitted that the complaint petition itself discloses allotment of 40 decimal of land in favour of petitioners under Partition Suit No.85/1970. So there was no fault on the part of the petitioners in getting the negotiation finalized with O.P. No.2. Then submitted that the real fact is that subsequent to execution of Mahadanama, O.P. No.2 could not offered the remaining amount and get the sale deed executed within the specified time that means to say within 14.03.2009, and with a view to compel the petitioners to waive the forfeiture clause as well as extend the time, which the petitioners did not agree, got this case filed. So submitted that neither on factual aspect nor on legal aspect the order of cognizance is justifiable. At the other hand, the lawyer for the O.P. No.2 vehemently opposed the submission raised on behalf of the petitioners and submitted that intention cannot be gathered from any other source because it happens to be mental state of the accused which could be perceived by subsequent conduct of the accused. Then put much stress on the fact that admittedly 40 decimal land happens to be in the share of petitioners but does not identified by a positive boundary. The area of the disputed land happens to be much more and other co-sharers have also been allotted in similar way 3 under different schedule of the Partition Suit No.85/1970. Therefore, it was incumbent upon the petitioners to disclose the real affair. Giving a wrong location by which different consideration amount in enhanced manner was negotiated with complainant and out of which Rs.2,00,000/- had already been realized by the petitioners, is sufficient to construe criminal intention of the petitioners since the day of negotiation which justify summoning them under Section 420/34 of the Indian Penal Code. The learned A.P.P. followed the argument raised on behalf of O.P. No.2. Admittedly, there was negotiation amongst the parties with regard to sale of 40 decimal of land of Plot No.393 appertaining to Khata No.210 which happens to be under schedule of Partition Suit No.85/1970 allotted to the petitioners. Other remaining areas have also been allotted to other co- sharers as is evident from schedule 1, 7, apart from schedule 8 belonging to the petitioners. Under T.P. Act there happens to be an obligation on the part of seller simultaneously upon the buyer also. In token of negotiation, deed of Jarbeyana (part performance) was executed. Both the parties are co-villagers and so it must have been within the conscious knowledge of O.P. No.2 so far physical feature of land at the spot is concerned. Then thereafter there was part payment followed with execution of document in favour of O.P. No.2 by the petitioner. Subsequent, thereof there happens to be an allegation / counter allegation from one side that the boundary of the land has wrongly been scribed and by this way she was deceived Rs.2,00,000/- which the petitioners succeeded in getting out of total consideration amount of Rs.4,60,000/- while the petitioners averred that as the O.P. No.2 failed to pay the 4 remaining amount within the stipulated period of 14.3.2009, then thereafter instant case has been filed in a compulsive manner. The fact remains that their has been breach of contract. How this breach of contract is to be seen and whether it attracts Section 420 of the Indian Penal Code, for that, the same has been elaborately dealt with in 2009(3) SCC page 78 at para-14. “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.” It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract. In another decision reported in 2000(4) SCC page 168 at para-14 and 15 the point in hand has been dealt in following manner: “14. On a reading of the section it is manifest that in the definition there are set froth two separate classes of acts which the 5 person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 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 affine 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 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 up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” [See also Indian Oil Corpn. V. NEPC India Ltd.7(SCC p.758, para 35), Vir Prakash Sharma v. Anil Kumar Agarwal8 (SCC pp. 376-77, para 12), V.Y. Jose5 and Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinnners (P) Ltd.9] The aforesaid view has further been followed in 2006(6) SCC page 736, 2007(7) SCC, 373, 2009 (11) SCC 529. A wrong committed on the part of a person may attract civil wrong or a criminal wrong and in likewise manner an act of omission or commission on the part of a person may give rise to civil action as well as 6 criminal action. Therefore, a distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed by way of launching of criminal prosecution. From the material as well as after recapitulating submissions advanced on behalf of respective parties it is evident that the matter in hand attracts civil wrong on account of non-compliance of the terms of Jarbeyana and further declining to execute a sale deed the reasons for which has been pleaded, counter pleaded. This fact further finds support as both the parties are co-villager, the land is there, and the complainant must have seen possession of accused over 40 decimal of land for the last so many year, at least after 1970. Now a days a unique method has been adopted in getting a criminal case launched although the cause discloses civil wrong attracting civil action which now a days happens to be a herculean task to wait for its logical end. But, the same is impermissible in the eye of law. As such, the order of cognizance dated 21.10.2009 passed by the learned lower court is set aside. Petition is allowed. PN (Aditya Kumar Trivedi, J.)