Allegations of fraud must demonstrate clear fraudulent intent at the time of the agreement, solely distinguishing civil disputes from criminal cases under IPC Sections 405 and 420.

JUDGMENT

Purushaindra Kumar Kaurav, J. This petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) is directed against the order dated 06.01.2014, by the learned Metropolitan Magistrate, Patiala House Courts, New Delhi, whereby, the order of summoning has been passed against the petitioners for commission of offence punishable under Sections 405/420 of the Indian Penal Code, 1860 (in short `IPC').

2. The facts of the case are that the respondent No.2/complainant filed a complaint under Section 200 of the Cr.P.C. against the petitioners and one Sita Ram Pandey for commission of offences under Sections 405/406/420/120B of the IPC. As per the complaint, the main allegation against the accused, therein, was of deceiving the complainant in paying a sum of Rs.5.0 Lakh by giving false assurance of providing him built-up house/flat when his intention from the very beginning was to cheat and defraud innocent depositors like the complainant. The complainant filed an application under Section 156 (3) of the Cr.P.C. for direction to the concerned police to register an FIR. On 27.01.2010, the SHO of the concerned police station filed a status report stating therein various reasons for non-registration of the FIR including the reason that the issue raised was predominantly of civil nature. On 09.02.2010, the learned Metropolitan Magistrate dismissed the application under Section 156 (3) of the Cr.P.C. The respondent No.2/complainant was directed to lead evidence. He examined himself and two other witnesses at pre-summoning stage. Vide impugned order dated 06.01.2014, the learned Magistrate after considering the statements of the complainant and the other witnesses, directed for issuance of summons to the petitioners for offences punishable under Sections 405/420 of the IPC. This court vide order dated 17.11.2014, stayed the further proceedings of the complaint case.

3. The learned counsel appearing on behalf of the petitioners submits that the complaint in question has been filed after a delay of almost 20 years. The only aim to file the complaint is to harass the petitioners, and extort money; and the same is abuse of the process of law. He further submits that the entire matter is of the civil nature, yet it has been given a colour of criminality and the offences under Sections 405/420 of the IPC are not made out even if the complaint is taken on face value. He further submits that in any case there was no intention to cheat the complainant at the time of making promise as there was no dishonest intention on the part of the petitioners. He places reliance on the decision of the Hon'ble Supreme Court in the matters of M/s Thermax Ltd. and Ors. v. K.M. Johny and Ors., (2011)13 SCC 412, V.Y. Jose and Anr. v. State of Gujarat and Anr., (2009)3 SCC 78 and Ajay Mitra v. State of M.P. and Ors., AIR 2003 SC 1069.

4. The prayer is vehemently opposed by the learned counsel appearing on behalf of respondent No. 2/complainant. He submits that this court in exercise of its power under Section 482 of the Cr.P.C. should not enter into the roving enquiry as to whether there is probability of conviction of the petitioners or not. He further submits that the learned Magistrate has applied his mind and has taken cognizance on the basis of material available on record. According to him, the learned Magistrate is well within his right to issue summons against the petitioners for alleged offences punishable under Sections 405/420 of the IPC in terms of power vested with him under Section 204 of the Cr.P.C. He further submits that the impugned order is well-reasoned and the same should not be interfered with.