IMPORTANT POINT
Cheating – If criminality is not made out, continuation of criminal case will amount to abuse of process of law.

JUDGMENT

Heard Mr. Kundan Kr. Ambastha, learned counsel for the petitioner, Mr. Sunil Kumar Dubey, learned counsel for the State and Mr. Zafar Alam, learned counsel for the O.P. No. 2.

2. This petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 31.08.2012 passed by the learned Judicial Magistrate, Hazaribagh in Complaint Case No. 473 of 2011 whereby cognizance has been taken under section 420 of the I.P.C., pending in the Court of learned Judicial Magistrate, Hazaribagh.

3. The complaint petition has been filed alleging therein that the petitioner entered into an agreement with the complainant on 06.04.2009 for sale of the land measuring an area of 40 acres comprised within plot no. 335 and the land measuring 6 acres out of plot no. 342 of khata no. 24 situated at village Pundri, P.S. Katkamsandi, District-Hazaribagh to the complainant for a consideration of Rs. 5,85,000/- and a sum of Rs. 2,60,000/- was received by the petitioner as an advance from the complainant and Roushan Prasad Mehta at the time of execution of the agreement. It was further alleged that in the said agreement it was specially mentioned that Government rent receipts are being issued with respect to the lands in question and the complainant along with Roushan Prasad Mehta came to know from Anchal Office that the petitioner had given false statement regarding rent receipt of the entire 46 acres of land under the agreement and induced the complainant and his brother namely, Roushan Prasad Mehta to deliver a huge amount of consideration. It was further alleged that the petitioner has intentionally cheated the complainant and his brother namely, Roushan Prasad Mehta knowing that Government rent receipts are not being issued with respect to the entire lands under the agreement as the land agreement is Gairmajarua khas.

4. Mr. Kundan Kr. Ambastha, learned counsel for the petitioner submits that the petitioner is innocent, however, he has been falsely implicated in the complaint case filed by the complainant. He further submits that in fact the power of attorney was executed between the petitioner and the complainant contained in Annexure-2 and the said power of attorney was revoked by the petitioner on 04.02.2011 on account of certain mis-conduct of the complainant, and thereafter, the complaint case was filed on 18.4.2011 by the complainant by way of retaliation. He further submits that the main grievance of the complainant is that the rent receipts were not issued, but by way of referring Annexure-5, page - 39, he submits that the rent receipts were issued in the name of the father of the petitioner however, the learned court has taken cognizance only on the ground that rent receipt is not issued in favour of the petitioner.

5. On the other hand, Mr. Zafar Alam, learned counsel for the O.P. No. 2 submits that the rent receipt is not being issued in favour of the petitioner and learned court has rightly taken cognizance and there is no illegality in the cognizance order.

6. Mr. Sunil Kr. Dubey, learned counsel for the State submits that the learned court after looking into the materials on record took cognizance and there is no illegality in the cognizance order.

7. In view of above submission of the learned counsel for the parties, the Court has gone through the contents of complaint as well as order taking cognizance including other materials on record. It is an admitted fact that power of attorney was executed between the petitioner and the complainant and the said power of attorney was revoked by the petitioner on 04.02.2011 and the complaint case was filed on 18.04.2011. There is no allegation in the entire complaint that from the very beginning there was intention of cheating by the petitioner. It is well settled that to hold a person of cheating as defined under section 415 of the I.P.C., it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise wit