Staff Reporter
Guwahati: The Gauhati High Court recently quashed an order by a subordinate court in a cheating case for alleged breach of contract for sale of land, noting that there was no misappropriation or fraudulent intention at the beginning of the transaction.
The court highlighted that mere breach of contract is not enough to prosecute for cheating unless dishonest intention while making the promise is shown.
The Court was hearing a petition (No. 1089/2018) seeking quashing of a Magistrate Court order taking cognizance of the offences under Sections 420 (cheating) and 406 (criminal breach of trust) of IPC against the accused-petitioner as well as quashing of the whole proceeding in the case.
The facts of the case were that the complainant-respondent filed a complaint petition before the Chief Judicial Magistrate, Kamrup(M) stating that while the complainant was searching for a plot of land for constructing a permanent residence, he came to the accused-petitioner, who agreed to sell his plot of land and asked the complainant to make an advance payment of Rs.2,00,000.
Accordingly, the complainant on March 12, 2016, in the presence of two witnesses, paid Rs.2,00,000 to the accused-petitioner. However, it was alleged that despite the complainant asking the accused-petitioner to complete the sale, the same was not done, and a legal notice was issued. It was alleged that the accused-petitioner had cheated the complainant, and a case was registered under Sections 406 and 420 of IPC.
Upon receipt of the case records, the Sub-Divisional Judicial Magistrate, Kamrup (M), recorded the statement of the complainant under Section 200 of the CrPC and thereafter, by an order dated August 14, 2018, took cognizance under Sections 420 and 406 of IPC against the accused-petitioner.
The counsel for the petitioner submitted that even if the allegation in the complaint is taken at face value and accepted to be true, no criminal offence is made out, and therefore, the continuance of the criminal proceeding is wholly unjustified.
The Additional Public Prosecutor appearing for the state respondents submitted that it is apparent from the body of the complaint that upon the complainant approaching the accused-petitioner for completing the sale proceedings, the accused-petitioner was willing to return the money, and as such, no case of cheating or breach of trust as claimed is made out.
The court noted that after issuing the legal notice, it appeared that the complainant attempted to effect a compromise in the matter by meeting the petitioner and requesting him to settle the matter. The petitioner at that time expressed his willingness to pay a lump-sum amount.
It was noted by the court that there has been no misappropriation or fraudulent or dishonest intention at the beginning of the transaction, and as such, no case under Sections 420 and 406 can be said to be made out from reading the complaint. It was observed by the court that mere breach of a promise cannot give rise to criminal prosecution. Thus, the Court set aside and quashed the impugned order.
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