1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Crl. Miscellaneous Petition No.2430/2009 (Rajhans Gurjar Vs. State of Rajasthan) Date of Order : 09.03.2010 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Pratap Singh Sirohi, for the petitioner. Mr.Laxman Meena, PP. Mr.Rajneesh Gupta, for the respondent. By the Court: By this miscellaneous petition, a prayer has been made to set aside the FIR No.601/2009 registered with Police Station Gangapur City, District Sawai Madhopur. Learned counsel for the petitioner submits that matter is essentially of civil nature, rather civil litigation is pending between the parties. This is apart from the fact that FIR does not disclose offence under the provision of IPC, hence also, the FIR deserves to be set aside. Coming to the fact, it is stated that a complaint was made by the non-petitioner pursuant to which, the FIR was registered on 16.09.2009. The complaint was filed at the stage when the petitioner was pursuing the complainant to get the sale deed registered for two plots, for which agreement to sale was executed. To frustrate the claim of the petitioner, the FIR was lodged. At the outset, the FIR does not disclose a case of cheating from the very 2 inception, thus in view of the judgments of the Hon'ble Apex Court, the FIR deserves to be set aside. Reference of the judgments in the cases of Uma Shankar Gopalika Vs. State of Bihar & Anr. reported in (2005) 10 SCC 336, All Cargo Movers (India) Private Ltd. Vs. Dhanesh Badarmal Jain & Anr. reported in (2007) 14 SCC 776 and Veer Prakash Sharma Vs. Anil Kumar Agarwal & Anr. reported in 2007 AIAR (Crl.) 578 has been given by the learned counsel for the petitioner. The side opposite, however, submits that it is a case where an offence under Section 420 of IPC is clearly made out. The petitioner had cheated the complainant in the manner indicated in the private complaint/FIR, thus the police has rightly registered the case. It is also stated that petitioner never executed agreement to sale for two plots at Hindon road. In fact, it was a fraudulent act of the petitioner, who used two blank papers and those blank papers were given in regard to sale or purchase of the plots for business in partnership as there was a boom in the land rates. The petitioner having received the amount for purchase of the plots, did not account the amount and kept profit apart from principal amount, thus private complaint was filed. I have considered the submissions made by the learned counsel for the parties and scanned the matter carefully. To set aside the FIR, this Court has limited jurisdiction. If the perusal of the FIR does not 3 disclose an offence, the FIR can be set aside. This is apart from the fact that if it is essentially a civil dispute, which can be decided by the civil Court. The perusal of the FIR in reference does not disclose the fact that the petitioner is alleged to have intension to cheat complainant at the very inception. In case of Umashankar Gopalika Vs. State of Bihar & Anr., the Hon'ble Apex Court held that a case of cheating needs breach of contract but breach would amount to cheating only if intension to cheat was at the very inception. In the present matter, if the FIR is looked into, it does not show that intension to cheat is from the very inception. This is apart from the fact that matter relates to a dispute of civil nature and civil suits are pending between the parties. A criminal case can be allowed to proceed, even if a civil suit is pending but in a case where essentially, it is a civil dispute, which can be decided by the Civil Court, then there exists no justification to drag the parties in a criminal case. The case in hand shows that documentary evidence exists regarding agreement to sale of two plots as against that evidence, petitioner has made allegation without any documentary proof. This is more so when there is delay in lodging the FIR. If the over all view on facts is taken note of, then it becomes clear that basic ingredient to make out a case of cheating does not exist. In view of aforesaid, the FIR bearing No. 601/2009 registered with the Police Station Gangapur City, Sawai Madhopur deserves to be set aside and accordingly, it is ordered to be set aside. 4 The criminal miscellaneous petition is accordingly, allowed. (M.N. BHANDARI),J. Preety Item NO.S-24