The ingredients of cheating under Section 420 IPC require deception and fraudulent representation from the inception of the alleged transactions.

Syamal Kanti Chakrabarti, J.

1. THE present revisional application under Section 401/482 Cr. P.C. is directed against order dated 08.06.2005 passed by the learned Judicial Magistrate, 1st Court, Sealdah, South 24 Parganas in connection with G. R. Case No. 672/03 (T.R. 423 of 2004) arising out of Beleghata P.S. Case No. 60/03.

2. THE present three petitioners have contended that the husband of respondent no. 3 Sadhana Sarkar, since deceased, was owner of an old delapidated house situated at premises no. 1A, Abinash Chandra Banerjee Lane, Kolkata 700 010. During his lifetime the old structure standing thereon was demolished for reconstruction on the basis of a sanctioned plan by the Kolkata Municipal Corporation. On account of sudden demise of the said original owner Nanigopal Sarkar, his successor being petitioner nos. 2 and 3 faced acute financial crisis. At that time one well-wisher Jnanendra Nath Samanta advanced Rs.3,00,000/- to petitioner nos. 2 and 3 to meet their expenses. A proposal was also forwarded on the part of OP No. 2 to sell a flat covering an area of 650 square feet to him. Subsequently, the said J. N. Samanta insisted for selling the flat at a price of Rs. 6,00,000/- instead of agreed amount of Rs. 9,00,000/-. So petitioner nos. 2 and 3 refused to dispose of the same. Consequently OP no. 2 demanded refund of his advance of Rs. 3,00,000/- by notice dated 10.09.2002. In response the petitioners repaid a sum of Rs. 2,00,000/- by cheque no. 891174 dated 28.09.2002 on SBI in favour of OP no. 2 who encashed it. On account of sudden illness and treatment of the daughter of petitioner no. 2 balance amount of Rs.1,00,000/- could not be repaid to OP no. 2 within agreed time. But without extending the time for repayment OP no. 2 filed complaint case no. C-187 of 2003 under Section 156(3) Cr. P.C. before the learned Additional Chief Judicial Magistrate, Sealdah under Section 420/349 IPC against all the petitioners. On the basis of such complaint Belaghata PS case no. 60/2003 has been initiated and after investigation charge-sheet has been filed. The learned Magistrate has fixed a date for consideration of charge.

3. MEANWHILE, OP no. 2/ complainant has filed another Money Suit on same issue being no. 2 of 2004 before the learned Civil Judge, Senior Division praying for recovery of advance with interest up to 20.01.2004, attachment, cost etc. Petitioners are also contesting said suit and filed written statement.

4. IN the said criminal proceedings the petitioners filed a petition praying for their discharge which has been rejected by order dated 08.06.2005 which is now under assail. Learned lawyer for the petitioners has contended that in a case under Section 420 IPC complainant must show that there has been fraudulent misrepresentation, deception etc. on the basis of which aggrieved party has parted with valuable articles, money etc. as defined in Section 415 of the Indian Penal Code. In the instant case admittedly the OP no. 2 received back Rs.2,00,000/- given as advance out of Rs.3,00,000/- and this may now be treated as breach of contract but this cannot be treated as an act of misrepresentation or deception on the part of the petitioners. Acceptance of the cheque by OP no. 2 is ipso facto an acknowledgement of partial repayment of advance give. Therefore, recovery of balance advance is a civil dispute for which no criminal case under Section 420 IPC will lie. Moreover, civil suit has already been filed and further continuation of criminal proceedings over same issue will be harassment of the petitioners and abuse of the process of law. Therefore, the instant proceeding is liable to be quashed.

5. HE has referred to and relied upon the principles laid down in (2009) 2 SCC (Cri) 332 (Mahesh Chowdhury Vs. State of Rajasthan and Anr.) and (2010) 2 C. Cr. L.R. (Cal) 715 (Md. Siraj Vs. State of West Bengal) in support of his contention. It has been set at rest in (2009) 2 SCC (Cri) 332 by the Honble Apex Court that Co