The central legal point established in the judgment is that a pure and simple breach of contract does not constitute the offence of cheating under Section 420 of the Indian Penal Code.

Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the opposite party no.2.

The order under challenge in the present application under Section 482 of the Code of Criminal Procedure is dated 05.09.2014 passed by the learned Judicial Magistrate, Purnea in C.A. (Complaint Application) No.1572 of 2013 by which the petitioner has been summoned to face trial in a case in which cognizance has been taken under Section 420 of the Indian Penal Code.

2. According to the complaint, an agreement was entered into between the parties for sale of 2.30 acres of land pursuant to which the complainant had paid Rs.9,97,000/- under different installments to the petitioner and was further ready to pay the remaining amount, but on one pretext or other the petitioner failed to execute the sale deed.

3. The complainant was examined on oath and apart from the complainant, four other witnesses were examined in course of inquiry conducted under Section 202 of the Code of Criminal Procedure where after, the petitioner was summoned to face trial for the charge under Section 420 of the Indian Penal Code.

4. Mr. Pramod Kumar Singh, learned counsel for the petitioner submitted that the initiation of complaint is a gross abuse of process of the Court. He submitted that the ingredients of the offence punishable under Section 420 of the Indian Penal Code are completely missing in the present case. He contended that it is not the case of the informant that the petitioner intentionally induced the complainant in any manner to purchase the land with a fraudulent and dishonest intention. He submitted that it is also not the case of the complainant that the petitioner is not the owner of the land for which he entered into agreement with the complainant or that he was not competent to sell the land in question. He contended that simply because an agreement to sell was entered into, which agreement the petitioner allegedly failed to honour, it cannot be said that he has cheated the complainant. He contended that it is wrong to allege that the petitioner failed to execute the land in favour of the complainant rather the fact is that the complainant did not pay the agreed balance amount within the time stipulated in the agreement and, thus, the sale deed was not executed in favour of the complainant.

5. Mr. Pramod Kumar Sinha, learned counsel for the petitioner submitted that the dispute, if any, is of civil nature. In support of his submission, he has placed reliance on the decisions of the Supreme Court in Murari Lal Gupta vs. Gopi Singh [(2005) 13 SCC 699)] and Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. [(2009) 14 SCC 696].

6. On the other hand, learned counsel for the opposite party no.2 submitted that it is an admitted case of the petitioner that he had received Rs.9,97,000/- from the complainant and has not returned the said amount and this alone is sufficient to prove that he had dishonest intention right from the beginning. He contended that the ingredients of the offence punishable under Section 420 of the Indian Penal Code are clearly attracted in the present case and, thus, the learned Magistrate committed no fault in issuing process against the petitioner. He contended that in a given set of fact may make out a civil wrong as also a criminal offence.

7. Learned Additional Public Prosecutor on behalf of the State has adopted the submissions made by the learned counsel appearing on behalf of the opposite party no.2

8. I have considered the rival submissions made on behalf of the parties and perused the record.

9. I find force in the submissions made by the learned counsel appearing on behalf of the petitioner.

10. The facts of the case are exactly identical to the facts of the case of Murari Lal Gupta (supra). In the said case, the accused had entered into agreement to sell certain property in Delhi for a consideration of Rs. 4.50 lakhs out of which Rs. 3.50 lakhs was paid by the complainant to him. The balance amount