The central legal point established in the judgment is that to prove cheating under Section 420 of the IPC, it is necessary to show fraudulent or dishonest intention of the accused at the time of making the promise, which may be judged by subsequent conduct.

T.P. Sharma, J.

1. By this revision under Section 397 read with Section 401 of the Code of Criminal Procedure, the Applicant has challenged legality & propriety of the order framing charge dated 13-9-2010 passed by the Judicial Magistrate First Class, Raipur in the matter of State v. Kishore Kumar Ganguly pending before the Court of Mrs. Kiran Thawait, Judicial Magistrate First Class, Raipur, whereby learned Judicial Magistrate First Class has framed charge against the Applicant of the offence punishable under Section 420 of the IPC.

2. As per case of the prosecution, the Applicant had executed an agreement in favour of complainant Mrs. Laxmi Manthani on 8-11-1990 relating to plot No. B-28/7 area 50 ft. x 80 ft. situate at New Rajendra Nagar, Raipur and after obtaining Rs. 50,000/- towards full amount of sale, possession was handed over to the complainant. Sale deed was required to be executed on behalf of the Applicant after obtaining necessary permission from the Raipur Development Authority (RDA). Both the parties were reluctant and in the meanwhile, the Applicant has given special power of attorney in favour of brother-in-law (devar) of the complainant for execution of sale deed between 2000 and 2002. The Urban Land Ceiling Act was repealed and thereafter, again the Applicant assured the complainant for execution of such sale deed. Meanwhile, power of attorney holder i.e. brother-in-law of complainant Mrs. Laxmi Manthani made application before the RDA for permission to execute sale deed on which he was informed that the Applicant has informed the RDA in writing that he is cancelling the power of attorney executed in favour of brother-in-law of the complainant. Finally, in the year 2007, vide registered sale deed the Applicant has executed sale deed in favour of one Ashok Jadwani. Since execution of the agreement, the complainant has regularly paid premium and rent of the aforesaid plot. On the aforesaid basis, written complaint was filed before police and after registering FIR and investigation, charge sheet was filed against the Applicant before the Court of Judicial Magistrate First Class, Raipur. After hearing the parties, the Court below has framed charge against the Applicant. Instead of challenging the order impugned before the revisional Court of first instance i.e. Sessions Judge, Raipur, the Applicant has directly challenged the order impugned before this Court, though revision is maintainable in terms of Section 397 read with Section 401 of the Code of Criminal Procedure before the High Court.

3. I have heard learned Counsel for the parties, perused the order framing charge and copy of charge sheet.

4. Learned Senior Advocate appearing on behalf of the Applicant submits that as per case of the prosecution, the Applicant has executed an agreement to sale in favour of the complainant in the year 1990 and has handed over possession after obtaining full amount of sale. Both the parties were reluctant in execution of sale deed and in the year 2007, the Applicant has executed sale deed in favour of Ashok Jadwani. At this stage, defence of the Applicant is not required to be considered, but at the time of framing charge, the prosecution is required to show prima facie case for framing of charge against the Applicant. Law relating to prima facie case for framing charge has been settled by catena of decisions of the Supreme Court, at the time of framing charge the Court is required to consider the material in its face value and not in its evidentiary value, inter alia, if the material collected on behalf of the prosecution is admitted in its face value, whether conviction of the Applicant would be possible or not. At this stage, no meticulous scrutiny is required, but in case of framing of charge under Section 420 of the IPC, the prosecution is required to show prima facie material that the Applicant/accused has dishonestly deceived the complainant to do or omit to do anything which he would not do or omit if he were no