HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 4052 of 2009 O R D E R: The petitioner is accused of the offence punishable under Section 420 IPC in CC No. 604 of 2007 on the file of IV Addl. Judicial Magistrate of the First Class, Nellore. The 2nd respondent/defacto complainant filed private complaint against the petitioner in the lower court and it was referred by the Magistrate to the police for investigation and report under Section 156(3) Cr.P.C. After investigation, the police filed charge sheet before the Magistrate. 2. Subject matter of dispute between the parties is Ac.6 .03 cents of land in Survey Nos. 1125, 1126, 1130/A, 1130/B, and 1131/A of Nellore Bit II Revenue village. There is no dispute between the parties that the complainant agreed to purchase the said property from the petitioner for a total sale consideration of Rs.91,65,000/- and that the petitioner executed agreement for sale on 24-07-2003 in favour of the 2nd respondent after having received advance of Rs.30,00,000/- thereunder. Under the agreement, out of balance sale consideration of Rs,.61,65,600/- a sum of Rs.51,65,600/- is payable on or before 30.08.2003 and the remaining balance has to be paid on or before 15.10.2003, and on that date, Registered Sale Deed has to be obtained. It is alleged that on the instructions of the petitioner through letters and also through the petitioner’s friends, the complainant obtained 28 demand drafts on various dates mentioned in the complaint and also in the charge sheet in favour of family members of the petitioner totalling Rs.49,00,000/- and gave them to the accused. Thus, according to the complainant, he made total payments of Rs.30,00,000/- + Rs.49,00,000/- totalling Rs.79,00,000/- under the agreement to the accused. While so, on 23.06.2004, the accused filed a caveat before the Senior Civil Judge, Nellore disclosing only payment of Rs.30,00,000/- under the Agreement and without disclosing payments by way of demand drafts to the extent of Rs.49,00,000/-. Further, the accused filed OS No. 375 of 2004 on the file of the Prl. Junior Civil Judge, Nellore for permanent injunction in respect of the same land on the same allegations which are contained in his caveat. There is also no dispute that the complainant filed OS No. 37 of 2004 before the District Judge, Nellore for Specific Performance of the agreement for sale against the accused. There is no dispute that both the said suits are now pending in civil Court. It is stated that now both the civil suits are transferred to city civil court, Hyderabad and they are pending at Hyderabad. 3. It is contended by the petitioner’s counsel placing reliance on S.V.L. Murthy Vs. State rep. by CBI, Hyderabad[1] and Dalip Kaur Vs. Jagnar Singh[2] that in order to constitute an offence of cheating, primarily there must be allegation of deception from inception of the transaction and that mere breach of promise or contract would not attract penal liability under Section 420 IPC. It is further contended by the petitioner’s counsel that this Court exercising power under Section 482 Cr.P.C. has to see allegations of the complaint/charge sheet of their face value and assess whether there are ingredients making out the offence alleged against the petitioner. 4. Allegations in the complaint/charge sheet prima facie disclose that the subject property originally belonged to father of the accused and that by virtue of a Will dated 25-12-1996 executed by father of the accused, the accused and his father Sridevamma are having rights in the said lands and that suppressing the same, the accused obtained passbook for the lands in his favour and made the complainant to enter into agreement in respect of those lands with the accused. This part of allegation in the complaint/charge sheet prima facie discloses that even prior to entering into the sale agreement, there were allegation of deception on the part of the accused in making the complainant to enter into the agreement for sale by parting with Rs.30,00,000/- initially. It is further alleged that when the complainant obtained 28 demand drafts whose total value was Rs.49,00,000/- in favour of various family members specified in the complaint/charge sheet and handed over those demand drafts to the accused, the accused with a dishonest intention suppressed the said payments through the Demand Drafts on his instructions and filed caveat as well as OS No.375 of 2004 with false allegations in order to enrich himself fraudulently. The above allegations in the complaint as well as in the charge sheet prima facie disclose ingredients for the offence of cheating as defined under Section 415 IPC and punishable under Sections 417 and 420 IPC. Simply because the civil suits are pending in respect of these transactions, that does not absolve the accused from facing criminal charges in respect of the same transaction. Dividing line between breach of contract and offence of cheating may be thin, but at the same time, there is no escape for the accused from criminal liability in case the breach of contract transgress civil bounds and entered into criminal arena. In this case, I see existence of ingredients of cheating on the part of the petitioner/accused. I do not find any valid or legal grounds to quash the proceedings in the criminal case herein. 5. In the result, the criminal petition is dismissed. _________________________________ SAMUDRALA GOVINDARAJULU, J Dt.09-09-2010 Mjl/* [1] 2009(4) Supreme 399 [2] 2009(5) Supreme 368