The essential ingredients of criminal breach of trust and cheating must be established; mere deficiency in land measurement does not imply deceit or fraud.

ORDER :

(J. C. DOSHI, J.)

1. By way of this petition, petitioner seeks the quashing of Criminal Case No. 232 of 2018, pending before the Learned Judicial Magistrate, First Class, Maliya Hatina, wherein process has been issued against the petitioner for offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

2. Learned advocate Mr. Parth S. Toliya, appearing for the petitioner, submits that the land in question was sold by the petitioner to respondent No.2 on 25.03.2008 through a registered sale deed. However, in 2013, respondent No.2 discovered that the land sold under the registered sale deed was less in measurement than stated. Consequently, he filed Regular Civil Suit No.40 of 2013 before the Civil Court, Maliya.

2.1. It is further submitted that, after a lapse of five years, in 2018, on the same set of allegations, respondent No.2 filed a criminal complaint against the petitioner. The learned trial court, after recording verification, issued process under Section 204 of the Code of Criminal Procedure, 1973 (for the sake of brevity, “Cr.P.C.”) for offences punishable under Sections 406 and 420 of the IPC. Furthermore, Regular Civil Suit No.40 of 2013, filed by respondent No.2 on the same set of allegations, has been dismissed by the learned trial Court after due appreciation of the evidence on record. In such circumstances, the allegations in the private complaint do not survive. The findings of the civil court are binding on the criminal court.

2.2. Learned advocate Mr. Toliya further submits that, during the appreciation of evidence in the civil suit, the learned Civil Judge recorded the deposition of respondent No.2, wherein he stated that he was unaware of the exact quantum of land he had purchased and from whom he had purchased it. Based on the evaluation of evidence, the learned civil Court concluded that respondent No.2, as the plaintiff, failed to substantiate the allegations made in the suit. Therefore, Mr. Toliya submits that the essential ingredients of criminal breach of trust and cheating are not established, and accordingly, the petition deserves to be allowed.

3. Per contra, learned advocate Mr. Divyanesh Joshi, appearing for learned advocate Mr. Chintan Popat on behalf of respondent No.2, could not point out any legal defense against the contentions raised.

4. The learned APP, considering the facts and circumstances of the case, submits that an appropriate order may be passed.

5. Having heard the learned advocates for both parties and upon perusal of the record and proceedings in Regular Civil Suit No.40 of 2013, the principal allegation in the private complaint is that respondent No.2 purchased land admeasuring 1-29-50 hectares (equivalent to 3108 gunthas) from Survey No.45 of Village Gotana through a registered sale deed dated 25.03.2008. However, upon measurement by the District Land Record Officer, it was found that the actual land was short by approximately 5 vighas and 14 guntas. Consequently, it is alleged that the petitioner accepted the sale consideration for the entire 3108 guntas but failed to deliver possession of the deficient portion, i.e., 5 vighas and 14 guntas. Notably, for the same set of allegations, respondent No.2 had earlier filed a civil suit. In the judgment rendered in Regular Civil Suit No.40 of 2013, the learned civil Court observed that multiple sale deeds were executed on the same day, and therefore, mere deficiency in measurement of the land purchased by respondent No.2 would not be sufficient to infer that lesser possession than what was agreed upon was delivered to him. The deposition of respondent No.2 has been carefully examined and appreciated by the learned civil Court while deciding the regular civil suit.

5.1. Another crucial aspect is that the sale transaction took place in 2008, yet respondent No.2 has not specified the exact date on which he measured the land. Despite having initially filed the civil suit, he subsequent