Point of Law: It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently.

JUDGMENT :

1. By preferring this petition petitioners have challenged the order dated 18th January, 2018 passed by the learned Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad in Inquiry Case No.7 of 2012, issuing summons to the accused persons and others observing that prima facie offence is made out by the petitioners.

2. Heard learned advocate Mr. Bhaumik Dholariya for the petitioners, learned APP Ms. Moxa Thakkar for the respondent-State and learned advocate Mr. J.A. Adeshra for the respondent No.2.

3. The case of the prosecution in brief can be summarized as under :-

4. On 29th March, 2012, the opponent no.2 / complainant herein filed a private complaint before the learned Metropolitan Magistrate, Ahmedabad against the petitioners herein and others for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860 (for brevity “IPC”) which was registered as Inquiry Case No.7 of 2012. Initially, the learned Trial Court ordered for Police Inquiry. Thereafter, vide order dated 18th January, 2018, the learned Additional Chief Metropolitan Magistrate Court No.12, Ahmedabad issued summons to all the accused including the petitioners herein which came to be served upon the petitioners in April, 2018. Inquiry Case No.7 of 2012 thereafter culminated into Criminal Case No.5942 of 2018. The learned Trial Court made certain observations against the petitioners that prima facie offence is made out by the respondent No.2- original complainant. Hence, the petitioners have approached this Court under Articles 14, 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash and set aside the Criminal Case No.5942 of 2018 (Inquiry Case No.7 of 2012) and the order dated 18th January, 2018 passed by the learned Additional Chief Metropolitan Magistrate Court No.12, Ahmedabad qua the petitioners herein.

5. Learned advocate Mr. Bhaumik Dholariya appearing for the petitioners submitted that the petitioners are falsely implicated in the complaint and it is a clear abuse of process of the law. It is further submitted that the Inquiry Case No.7 of 2012 is now culminated into Criminal Case No.5942 of 2018. It is further submitted that the land in question was purchased by the present petitioners and they are the bonafide purchasers. There is no offence of forgery as defined under Section 463 read with Section 464 of the Indian Penal Code made out against the petitioners. It is further submitted that the land was purchased by the petitioner Nos.1 to 4 in October-2010 from Bairajba Jivaji through registered sale deed. The petitioner No.5 is a witness to the said transaction. It is further submitted that the petitioners have nothing to do with the alleged offence of forgery committed by Bairajba Jivaji in the year 1997 as they were not even aware about the said allegations at the time of purchase of the land in question. The petitioners are involved in the alleged offence with malafide intention to apply pressure tecticks and to settle the dispute with the opponent No.2/complainant. It is further submitted that no offence of forgery much less offence punishable under Sections 465, 467, 468 and 471 of the Indian Penal code is constituted against the petitioners. It is further submitted that the petitioners have never induced the complainant by making any false representation or no offence of criminal breach of trust or cheating has been made by the petitioners. It is further submitted that alleged forged pedhinama was prepared by Bairajba Jivaji in the year 1997, based on which, entry was mutated. That petitioners were never in picture at that time and in October-2010, through registered sale deed, petitioner nos.1 to 4 have purchased the subject land, and therefore, no offence of criminal conspiracy can be said to have been committed. It is further submitted that the dispute is regarding the right title and interest in the s