2012 Supreme(Guj) 238

Hon’ble Ms. Justice Harsha Devani
Parashar Arvindkumar Hirakani
Versus
State of Gujarat & Ors.
Special Criminal Application No. 264 of 20091—Decided on 24/04/2012

Whether in the facts of the FIR is liable to be quashed and set aside.

Headnote:Head Note :

       Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 482 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 406, 420 and 114 — First information report — Offence of cheating and criminal breach of trust — Quashing of — Scope — Finding of — Allegations in the FIR are to the effect that Accused No. 1 through Accused No. 2 agreed to sell the land to first informant and despite the fact that the entire amount was paid Accused No. 1 did not execute the sale deed till date and thereby committed offence of cheating and criminal breach of trust — Court held that in order to constitute an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation — In the FIR there is no allegation that right from inception the petitioner accused had fraudulent or dishonest intention — The case of the first informant is that upon it coming to the knowledge of petitioners that the Tata Neno project is to be established at the alleged places of land prices of land had increased and petitioners had developed a fraudulent and dishonest intention and did not execute the sale — The provision of cheating under Section 420 I.P.C there can not be invoked in the case — In so far as offence under Section 406 is concerned, the same requires the entrustment of property which is dishonestly misappropriated by accused — In the present FIR there is no entrustment of property alleged hence FIR can not be sustained — It is quashed and set aside.

       Held :

       Examining the provisions of the Indian Penal Code for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to the failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. In the facts of the present case, as noted hereinabove, there is no allegation in the first information report to the effect that right from the inception, the petitioner accused had fraudulent or dishonest intention. The case of the first informant is to the effect that upon it coming to the knowledge of the petitioners that the Tata Nano project is to be established at Sanand and the prices of land increasing, the petitioners had developed a fraudulent and dishonest intention and had not executed the sale deed. The basic ingredient for invoking the provisions of Section 420 namely, the existence of fraudulent and dishonest intention right from the inception is, therefore, clearly missing. Under the circumstances, the provisions of Section 420 IPC would clearly not be attracted in the present case. [Para 16]

       Insofar as the offence under Section 406 IPC is concerned, the same contemplates entrustment of property or a dominion over the property which is dishonestly misappropriated or converted by the accused for his use. In the facts of the present case, it cannot be said that any property had been entrusted to the petitioner by the first informant, which has been dishonestly misappropriated or converted by the petitioner to his own use. It has been contended on behalf of the first informant that the moneys paid by way of sale consideration would bear the character of property entrusted to the petitioner and if neither is the registered sale deed executed nor is the amount returned, it would constitute the offence of criminal breach of trust. On a plain reading of the provisions of Section 405 IPC in the opinion of this court, payment made towards sale consideration, cannot be said to be property entrusted as envisaged under Section 405 IPC so as to constitute an offence under Section 406 IPC. [Para 18]

       Law Laid Down :

       For establishing the offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise at representation.