IMPORTANT POINT
A mere breach of contract does not amount to a criminal offence unless fraudulent intent is established from the outset.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. D. Choudhury, learned Counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent and Mr. K. Sarma, learned Counsel for respondent No.2.

2. By way of this application under Section 482, read with Section 401 of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C.”) the petitioner is seeking setting aside and quashing of the impugned order dated 28.01.2013 passed by the learned Judicial Magistrate, First Class, Bongaigaon in G.R. Case No. 597/2012, whereby charges under Section 406/420/34 of Indian Penal Code (hereinafter referred to as “IPC”) were framed against the petitioners.

3. The facts of the case is that the petitioner No.1 being the owner and possessor of the land in question, had entered into an agreement for sale for Rs. 8,00,000/- (rupees eight lakhs) only with the respondent No.2 and pursuant to the aforesaid agreement to sale, the respondent No.2 paid an amount of Rs. 30,000/- (rupees thirty thousand) only and Rs. 1,50,000/-, (rupees one lakh fifty thousand) only totaling to Rs. 1,80,000/- (one lakh eighty thousand) only as earnest money. It is the specific case of the respondent No.2 that during subsistence of the aforesaid agreement, the petitioner No.1 sold the subject land to the petitioner No.2 by executing registered sale deed. Accordingly, an FIR was lodged on 16.10.2012 which was registered as Bongaigaon P.S. Case No. 365/2012, under Section 406/420/34 of IPC.

4. After investigation, Charge-sheet was submitted and thereafter the learned trial Court on 28.01.2013 framed charges under Section 406/420/34 of IPC against the petitioners. Aggrieved by the aforesaid order of the learned trial Court, the present criminal petition has been filed for setting aside and quashing the aforesaid order dated 28.01.2013.

5. Mr. D. Choudhury, learned Counsel for the petitioners submits that the case is purely a case of breach of agreement and thus, the petitioners are entitled to be discharged. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Kunti and Another Vs State of Uttar Pradesh and Another , reported in 2023 6 SCC 109.

6. Per contra, Mr. K. Sarma, learned Counsel for the respondent No.2 submits that the allegation in the FIR and Charge-sheet clearly makes out a criminal case against the petitioners and as such, the order impugned in the petition warrants no interference from this Court under Section 482 of Cr.P.C. He further submits the power of the High Court under Section 482 of Cr.P.C. for quashing criminal proceeding should be exercised sparingly in rarest of rare cases. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of State of Haryana and Others Vs Bhajan Lal and Others reported in  1992 Supp(1) Supreme Court Cases 335.

7. I have heard the submissions made by both the learned Counsels appearing for the contending parties and perused the material available on record. I have also considered the case laws cited at the bar.

8. Apt at this stage to refer to the FIR dated 16.10.2012, which is reproduced hereunder for ready reference:

“To

The Respected Officer-in-charge

North Bongaigaon PP.

Sub. Ejahar

Sir,

With due respect, beg to state that on last 09/03/2012 with a view to purchase the land measuring 15 lechas situated at Salbari belongs to the below named accused No.1, agreed to purchase the same for Rs.8,00,000/- (Rupees Eight Lakh) and entered into an agreement and also paid an amount of Rs.30,000/- (Rupees Thirty Thousand) only and Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) only totaling to Rs.1,80,000/- (Rupees One Lakh Eighty Thousand) only as earnest money. During subsistence of the aforesaid contract, on 06/10/2012, the accused person sold the aforesaid land to the accused No.2 by executing registered sale deed. Such act of the accused No.1, 2 & 3 caused substantial damage