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IN THE HIGH COURT OF BOMBAY AT GOA
ALOK ARADHE, CJ., M.S. SONAK, J.
Shri Shaukat Mohammad Rahman, son of late Aziaur Mohammad Rahman and Anr. – Petitioners
Versus
State of Goa, Through Police Inspector & Police Station Incharge, Porvorim Police Station and Ors. – Respondents
Criminal Writ Petition No. 90 Of 2023
Decided On : 13-03-2025
(A) Constitution of India - Article 226 - Code of Criminal Procedure, 1973 - Section 482 - Quashing of FIR - Petitioners, senior citizens, sought to quash an FIR alleging cheating in a property transaction - The court found that the allegations did not constitute cheating as defined under Section 415 of IPC, emphasizing that the matter was predominantly civil in nature - The J.M.F.C.'s order was quashed due to non-application of mind and the attempt to convert a civil dispute into a criminal case. (Paras 31, 36, 49)
(B) Criminal Law - Cheating - The court reiterated that a mere breach of contract does not amount to cheating unless fraudulent intent is established at the inception of the transaction - The distinction between civil disputes and criminal allegations must be maintained to prevent abuse of the judicial process. (Paras 33, 39)
Facts of the case:
The Petitioners, senior citizens from Assam, were involved in a property transaction with a broker who alleged cheating after entering into a Memorandum of Understanding (MOU) for the sale of property, despite being aware of existing tenancy claims. (Paras 4, 5, 6, 12)
Findings of Court:
The court concluded that the FIR did not disclose any criminal offence and was an attempt to exert pressure on the Petitioners, quashing the J.M.F.C.'s order and the FIR. (Paras 49, 50)
Issues: The main issues included whether the allegations constituted cheating under IPC and whether the J.M.F.C. properly applied the law regarding the distinction between civil and criminal disputes. (Paras 31, 36)
Ratio Decidendi: The court held that the ingredients of cheating were not met, as the Complainant was aware of the property’s legal issues and the MOU did not indicate fraudulent intent. The court emphasized the need to prevent civil disputes from being mischaracterized as criminal offences. (Paras 31, 36)
Result: The J.M.F.C’s order dated 24.03.2023 and the FIR were quashed and set aside.
JUDGMENT :
M.S. SONAK, J.
1. Heard learned Counsel for the parties.
2. Rule. The rule is made returnable immediately at the request of and with the consent of the learned Counsel for the parties.
3. The Petitioners, by instituting this petition under Article 226 of the Constitution of India r/w Section 482 of Cr.P.C., seek quashing of the order dated 24.03.2023 made by the J.M.F.C. Mapusa and the impugned FIR registered by the Porvorim Police Station under such order.
4. The Petitioners are senior citizens [over 70 years of age]residing in Dibrugarh, Assam. In the first paragraph of this petition, they have pleaded about the multiple health issues that afflict them.
5. The Petitioners have pleaded that the second Petitioner and her sister Maria Viegas are the co-owners of an ancestral property measuring 2850 sq. mts surveyed under No. 429/10 in the Village of Anjuna, North Goa, hereinafter referred to as the “said property.”
6. The Petitioners have pleaded that the 3rd Respondent [Complainant] is a property broker and real estate developer who offered to purchase the said property on an “as is where is basis”.
7. Apart from several phone calls and discussions, the 3rd Respondent (Complainant) addressed an undated communication [Exhibit P at page 23A] to the Petitioners offering to purchase the said property on “as is where is basis along with the claim of the tenant and legal proceedings”.
8. The complainant’s undated written offer is transcribed below for the convenience of reference:
“Dearest Madame /Sir, This is in Reference to your Land at Anjuna bearing sy no 429/10 admeasuring 2850 sqm which is jointly Successes and owned by Your sister Bernadette and You , there also exist Mr Morajkar Family as Tenants I had also Visited Mrs Bernadette at her residence at Miramar and happened to meet her Husband Mr Viegas , he told me that Bernadette was out of station and he would discuss my proposal with her when she gets back . Thereafter I tried to call him several times on his mobile but was not responding.
My Discussion with Mr Viegas was about the land at Anjuna and that I am willing to buy it as it where is basis along with the claim of the tenant and legal proceedings.
If you feel interested I am willing to discuss the proposal further and accordingly pls feel free to contact me on 8805657777 and my email goodwillgroupgoa@gmail.com.
Thanking You
Sd/-
Yashpal Raikar”
9. The Petitioners have pleaded in paragraph 8 that they were tired of litigating with Kanta Morajkar and, therefore, they allowed themselves to be persuaded to sign the Memorandum of Understanding (MOU) dated 20.02.2020 prepared by the Complainant [Exhibit P-1 at pages 24 to 40]. Besides, the Petitioners also executed a Power of Attorney [Exhibit P-2 at pages 41 to 47], constituting the Complainant as their Attorney to deal with matters concerning the said property and the litigations relating to the said property.
10. In May 2023, following the complaint lodged by the Complainant, Porvorim Police Station issued a notice under Section 41A of the Cr.P.C. requiring the Petitioners to report to the Porvorim Police Station on 15.05.2023. This was followed by another notice dated 29.05.2023, instructing the Petitioners to appear at the Porvorim Police Station on 10.06.2023.
11. The Petitioners have pleaded that it was impossible for them to attend the inquiry because of their age, health complications and the distance between Assam and Goa. However, the Petitioners managed to contact an Advocate to make enquiries. From the Advocate, they learnt that the Complainant had filed proceedings under Section 156(3) of Cr.P.C. i.e. Cr.M.A. No. 34/2023/E in the Court of J.M.F.C., Mapusa, for registration of an FIR against the Petitioners for allegedly cheating the Complainant and committing an offence punishable under Section 420 of IPC.
12. The Petitioners obtained a copy of the learned J.M.F.C’s order dated 24.03.2023 under Section 156(3) and instituted this petition to quash it and the impugned
AI
A mere breach of contract does not constitute cheating unless fraudulent intent is established at the inception of the transaction, emphasizing the distinction between civil disputes and criminal all....
A mere breach of contract does not constitute cheating under IPC unless fraudulent intent is established from the outset; civil disputes should not be converted into criminal cases.
Criminal proceedings cannot proceed where allegations only constitute a civil dispute without intent to cheat.
The court established that criminal proceedings cannot be used to settle civil disputes, emphasizing that the FIR lacked allegations constituting a criminal offence and should be quashed.
The central legal point established in the judgment is that for an act to constitute an offence under Section 420 of the Penal Code, there must be fraudulent or dishonest inducement, and the absence ....
The absence of fraudulent intention at the inception of a transaction negates the offence of cheating, and civil disputes should not be converted into criminal prosecutions.
Criminal liability for cheating requires proof of dishonest intent from inception, distinguishing breach of contract from criminal offence.
The court ruled that criminal proceedings based on civil disputes without clear fraudulent intent are an abuse of process, necessitating dismissal of such charges.
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