A breach of contract does not constitute a criminal act unless there is fraudulent intent at the transaction's inception, distinguishing civil liabilities from criminal offences of cheating and breach of trust.

JUDGMENT :

J.C. DOSHI, J.

1. By way of this application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ”the Code”), the petitioners have prayed for quashing and setting aside FIR being C.R.No.I – 132 of 2015 registered with Kadodara GIDC Police Station, for the offences punishable under Sections 406 ,420, 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein.

2. Brief facts of the case are as under:-

2.1 The FIR spells that the complainant is a land broker and therefore is indulged in the business of selling and purchasing of different parcels of lands. He was shown the disputed parcel of land in the year 2011 situated at moje Antroli village bearing revenue survey no. 25 and 256, block no. 202 admeasuring 14 vighas (in short “the disputed land”) by two brokers namely Amratbhai Bharwad and his son Rajubhai Bharawad.

2.2 Upon inquiring about the title of the land in question the complainant came to know that the same was owned by the present applicant no. 1. And the said person was having the title documents with regard to the same. The complainant did not ask for the 7/12 extracts of the property. It is the case of the complainant that the accused no. 1 was cultivating the land in question. And upon their persuasion on 02.01.2011 the complainant entered into an agreement with the applicants and agreed for paying an amount of Rs 5,83,11,11/- of which an amount of Rs 15,00,000/- was paid to the applicants. The parties had executed a document for sale (sauda chitthi), pertaining to the said land.

2.3 That said Sauda Chhithi which is referred to by the complainant in his complaint is regarding the transaction which took place whereby it was agreed between the parties that the applicant no. 1 would get the sale deed executed between the original owner and the complainant within a period of 6 months. But it was no where submitted that the applicant had assured that he was the owner of the land in question. The original sauda chitthi is with the complainant, but the applicant has reduced the same in writing for the perusal of this Hon'ble Court.

2.4 It was agreed upon between the parties that remainder of the amount would be paid after 6 to 7 months upon executing a sale deed. The complainant all thorugh out was ready and willing to perform his part of the contract. After six months when the complainant inquired with the applicant no. 1 for performance of the contract the applicant no. 1 informed him that he was to talk to the original owner, and the applicant requested him to wait for a period of 4 to five months. Upon his requested the complainant waited till the year 2015. Then he came to know that the said parcel of land was sold to someone else.

2.5 Hence, present petition to quash the FIR.

3. Learned advocate Mr. Bomi Shethna appearing for learned advocate Mr. Daifraz Havewalla for the petitioners accused argued that the allegation in the FIR does not make out any offence of criminal breach of trust or cheating. The FIR refers that the petitioners have not repaid Rs.15 lakh being part of sale consideration for the agreement to sell executed in sauda chitthi for the disputed land. It is sought to be submitted that as per the FIR since Rs.15 lakh was not repaid and no sale deed was executed qua the land sold through agreement to sell, the petitioners have committed the offence of criminal breach of trust and cheating as defined in sections 405 and 415 of the IPC having pu