Prima facie grounds for proceeding against the accused can exist based on oral transactions and absence of documentary evidence does not diminish the case.

A.M. Badar, J.

1. By this petition, the petitioner/accused in Criminal Case No. 307/SW/2014 is praying for quashing the proceedings initiated by respondent No.1 herein, who is the original complainant before the learned Magistrate. Heard the learned advocate appearing for the petitioner/accused at sufficient length of time. He took me through the averments made in the complaint lodged by respondent No.1/original complainant, order of issuance of process passed by the learned Magistrate as well as the report submitted by police under Section 202 of the Code of Criminal Procedure (Cr.P.C). Reliance is also placed on registered agreement in respect of purchase of land and receipts in the name of the petitioner/accused. By drawing my attention to the letter dated 29th January 2014 sent by respondent No.1/original complainant, the learned advocate for the petitioner/accused argued that this letter is as vague as it can be and it is not mentioning the amount allegedly paid by respondent No.1/original complainant to the petitioner/accused. The same is countered by reply dated 5th February 2014 with a contention that the land was purchased by the petitioner/accused from his own resources and the same is sold as per wish of the petitioner/accused. The learned advocate further argued that in such type of cases, initially oral agreement is required to be proved in a civil suit and then only a complaint can be lodged. Reliance is also placed on Section 19 of the Evidence Act. It is further argued that delivery of money is not proved and no offence punishable under Section 420 of the IPC is reflected.

2. I have also heard the learned APP as well as the respondent No.1/original complainant.

3. I have carefully considered the rival submissions and also perused the entire material placed on record.

4. A complaint alleging offence punishable under Section 406, 409 and 420 of the IPC came to be lodged by respondent No.1/original complainant against the petitioner/accused. They are real brothers. Respondent No.1/original complainant alleged in his complaint that on advise of the petitioner/accused, he paid amount to the petitioner/accused for purchasing land at Village Narivali. It is further averred in the complaint that apart from Rs. 50,000/- for purchasing land, further amount of Rs. 4 Lakh was also paid by respondent No.1/original complainant to the petitioner/accused from the year 1986 to year 2007. The land was purchased in the name of the petitioner/accused as it was represented to respondent No.1/original complainant that if purchased in the name of the petitioner/accused, it will cost only 50% of the market value of the land. On this representation, respondent No.1/original complainant allowed the land to be purchased in the name of his younger brother i.e. the petitioner/accused. It is further averred in the complaint that in September 2013, respondent No.1/original complainant came to know that the land in question was sold to M/s. Lodha Dwellers Private Limited without even informing respondent No.1/original complainant. This is how respondent No. 1/original complainant is alleging commission of alleged offence.

5. It is seen that the learned Metropolitan Magistrate has sought for report of the concerned police station in exercise of powers under Section 202 of the Cr.P.C. Perusal of that report goes to show that police examined three witnesses namely Lalitkumar Maheshwari, Deepak Chaudhari and Vinodkumar Bubna. Police has reported that witnesses are stating that respondent No.1/original complainant had paid money to the petitioner/accused for purchase of land in installments. Police has further reported that there is no documentary evidence on this aspect.

6. Section 420 of the IPC deals with punishment for the offence of cheating. For establishing this offence, intention of cheating the victim since inception is required to be proved. Section 3 of the Evidence Act deals with definition of the term "proof. In a criminal trial,