A mere breach of contract does not constitute the offence of cheating under the Indian Penal Code.

Heard Mr. Prahalad Kumar Bhagat, learned counsel for the petitioners and Mr. Bijendra Kumar Singh, learned counsel for the opposite party no.2.

2. The order under challenge in the present application is dated 16.05.2013 passed by the learned Chief Judicial Magistrate, Purnea in K. Hat P.S. Case No.176 of 2012 whereby the petitioners have been summoned to face trial for the offences punishable under Sections 419, 420, 406 and 504 of the Indian Penal Code.

3. The prosecution case is based on the written complaint of the informant Indradeo Parera, who has alleged inter alia that he had entered into an oral agreement with the petitioners for sale of land with one old pucca house situated at khata no.16, khesra no.293 and 422. Out of the total value of the said piece of plot and pucca house, Rs. 2,50,000/- was paid by the informant through cheque drawn on State Bank of India, Gulab Bag Branch to the petitioner Arun Kumar Chaudhary and it was decided that the remaining amount of Rs. 1,00,000/- would be paid on the date of execution of the sale deed. It is further alleged that the informant requested the petitioners for execution of sale deed several times. Eventually, with great efforts, the petitioners came to the Registry Office, Purnea at 10:00 a.m. on 14th March, 2012, but they did not execute the sale deed and when a protest was made, they started abusing the informant.

4. On the basis of the aforesaid allegations, the informant has alleged that the accused persons have deliberately cheated him. 5. The case was investigated upon by the police and, on completion of investigation, a report under Section 173(2) of the Code of Criminal Procedure (for short “Cr.P.C.”) was submitted in the court vide charge-sheet no.26 of 2013 dated 28.02.2013. Thereafter, the learned Chief Judicial Magistrate, Purnea vide impugned order dated 16.05.2013 took cognizance of the offences punishable under Sections 419, 406, 420 and 504 of the Indian Penal Code and summoned the petitioners.

6. The aforesaid order dated 16.05.2013 is under challenge before this Court.

7. It has been submitted by the learned counsel appearing for the petitioners that the complaint, in question, is an abuse of the process of the court, as none of the ingredients of the offences alleged are attracted. He has contended that it is not the case of the informant that the petitioners did not own and possess the property or that they were not competent to enter into an agreement to sell or could not have transferred title in property to the informant. He has submitted that simply because an agreement to sell was entered into, which agreement the petitioners allegedly failed to honour, it cannot be said that the petitioners have cheated the opposite party no.2 or cheated the informant. In support of such submissions, 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 and Others vs. Jagnar Singh and Another [(2009) 14 SCC 696].

8. Learned counsel for the petitioners has further contended that allegation of taking advance from the informant of the case through cheque for the purpose of selling land and house is absolutely false. He has submitted that there was neither any talk in this regard nor any agreement was ever entered into between the parties. He has submitted that the informant had taken Rs.2,50,000/- from the petitioner no.1 for his treatment on 8th March, 2010 and, in this regard, the informant and petitioner no.1 had executed a loan agreement, as contained in Annexure-2 to the present application wherein the informant had promised to repay the loan amount on or before November, 2010. The said amount of Rs. 2,50,000/- given as friendly loan to the informant was returned to the petitioner no.1 through demand draft in question on 06.09.2010.

9. On the other hand, learned counsel for the informant has submitted that the defence taken by the petitioners cannot be made a ground for quashing the c