A pure and simple breach of contract does not constitute the offence of cheating or criminal breach of trust under Sections 406 and 420 of the IPC.

1. Heard Mr. Dilip Kumar Singh, learned counsel for the petitioner, Mr. Sunil Kumar, learned counsel for the informant, Mr. Jharkhandi Upadhyay, Additional Public Prosecutor for the State and perused the record.

2. This application under Section 482 of the Code of Criminal Procedure (for short “CrPC”) has been filed by the petitioner seeking quashing of the order dated 14.08.2013 passed in connection with Pothia (Paharkatta) P.S. Case No.156 of 2012 whereby cognizance has been taken for the offences under Sections 406, 420, 465 and 467 of the Indian Penal Code (for short “Penal Code”).

3. It is submitted by the learned counsel for the petitioner that the entire allegations made in the First Information Report (for short “FIR”) are false and fabricated. He submitted that whatever amount was advanced to the petitioner in terms of the agreement has already been returned to the informant of the case. He contended that even if the entire allegations made in the FIR are taken at their face value and accepted in their entirety, the ingredients of the offences alleged would not be attracted.

4. On the other hand, learned counsel for the State submitted that the allegations made in the FIR do attract the ingredients of the offences alleged. The police investigated the case and found the allegations made to be true in course of investigation and, thus, charge-sheet was submitted against the petitioner. It is submitted that after considering the materials collected during investigation, the learned Magistrate found prima facie case to be made out against the petitioner and, thus, summoned him to face prosecution. It is contended that it is not the stage when defence of the petitioner can be looked into.

5. Learned counsel for the informant while adopting the contentions advanced by the learned counsel for the State, submitted that reply to the legal notice submitted by the petitioner whereby he has taken a plea that the entire money advanced to the petitioner has been returned clearly demonstrates culpable intention of the petitioner. He submitted that though the present case has been filed for quashing of the order taking cognizance, the stage of the case has changed and charges have already been framed. According to him, once charges are framed, the case would either end in conviction or acquittal of the accused based on the evidences adduced during trial.

6. I have heard learned counsel for the parties and perused the record.

7. The gist of the allegation in the FIR is that there was negotiation between the informant and the petitioner for purchase of ten dhurs of land situated at Old Ward No.28, New Ward No.03, under Thana No.132, Tauzi No.1242, Khesra No.148, Khata No.71 in village- Mohiuddinpur in the district of Kishanganj. The total cost of the land was fixed at rupees twelve lacs fifty one thousand. Though, under the agreement for sale, the informant had advanced a sum of rupees eight lacs and eighty thousand and was ready to pay the balance amount, the petitioner failed to execute the sale deed on one pretext or the other. Ultimately, looking at the attitude of the petitioner, the informant asked for return of his money, whereafter the petitioner paid rupees eighty thousand on 08.04.2012, but the balance amount was not returned to the informant. The informant sent a legal notice to the petitioner which was replied through lawyer, wherein defence was taken that the entire amount of rupees eight lacs and eighty thousand has been paid back to the informant on 08.04.2012.

8. It would be relevant to note that the informant of the case had initially instituted a complaint in the court of Chief Judicial Magistrate, Kishanganj, which was referred to the police for investigation under Section 156(3) of the CrPC. After investigation of the case, the police submitted charge-sheet for the offences punishable under Sections 406, 420, 465 and 467 of the Penal Code and, on perusal of the police report submitted under Section 173(2) of the