A mere breach of contract does not constitute criminal cheating unless fraudulent intent is established at the outset of the transaction.

JUDGMENT & ORDER :

Heard Ms. B. Goswami, learned counsel appearing for the petitioner. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the State respondent.

2. None appears for the respondent no.2. Pertinent that the name of the learned counsel appearing for the respondent no.2 is reflected in the cause-list.

3. Accordingly, the matter is taken up for final disposal.

4. By filing this petition under Section 482 of the Cr.P.C read with Section 401/397 of the Cr.P.C, 1973, the petitioner is seeking quashing of the impugned order dated 14.08.2018 passed by the learned Sub- Divisional Judicial Magistrate (S) No.1, Kamrup(M) at Guwahati, whereby the learned Magistrate Court had taken cognizance of the offences under Section 420/406 of IPC against the accused/petitioner as well as quashing of the whole proceeding and C.R. Case No.2343^c/2016 pending before the learned Sub- Divisional Judicial Magistrate (S) No.1, Kamrup(M) at Guwahati.

5. The facts of the case is that the complainant/respondent no.2 filed a complaint petition before the Chief Judicial Magistrate, Kamrup(M) at Guwahati on 30.07.2016 stating inter- alia that the complainant/respondent no.2 was searching for a plot of land for constructing a permanent resident and accordingly he came to the accused/petitioner, who agreed to sale his plot of land and asked the complainant/respondent no.2 to make an advance payment of Rs.2,00,000/-. Accordingly the complainant/respondent no.2 on 12.03.2016 in the presence of two witnesses paid Rs.2,00,000/- to the accused/petitioner. However, later on despite the complainant/respondent no.2 contacting the accused/petitioner for compliance of the sale, the same was not done, for which a legal notice was issued. Accordingly, it is alleged that the accused/petitioner has cheated the complainant/respondent no.2. The said case was registered as C.R. Case No.2343^c/2016.

6. The learned Chief Judicial Magistrate, Kamrup(M) upon received of the aforesaid complaint petition registered the matter as C.R. Case No. 2343^c/2016 and thereafter transferred the case records to the Court of learned Sub-Divisional Judicial Magistrate (S) No.1, Kamrup(M) at Guwahati for disposal.

7. Thereafter, learned Sub-Divisional Judicial Magistrate (S) No.1, Kamrup(M) at Guwahati upon receipt of the case records recorded the statement of the complainant under Section 200 of the Cr.P.C and thereafter, by order dated 14.08.2018, took cognizance under Section 420/406 of IPC against the accused/petitioner and was further pleased to fix the next date on 03.10.2018 for appearance of the accused/petitioner.

8. Situated thus, the present petition has been filed seeking quashing of the complaint as well as the order dated 14.08.2018, whereby cognizance has been taken by the learned Magistrate Court.

9. Ms. B. Goswami, learned counsel appearing for the petitioner submits that even if the allegation in the complaint is taken in its face value and accepted to be true, no criminal offence whatsoever is made out and therefore, continuance of the criminal proceeding is wholly unjustified.

10. Ms. B. Goswami, learned counsel appearing for the petitioner further submits that the order of the learned Magistrate taking cognizance is absolutely without any application of mind and therefore is totally perverse and erroneous and hence the same is liable to be set aside and quashed by this Court.

11. Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the State respondents in his usual fairness submits that it is apparent from the body of the complaint that upon the complainant/respondent no.2 approaching the accused/petitioner for completing the sale proceedings, the accused/petitioner was willing to return the money and as such no case of cheating or breach of trust as claimed is made out on the face of the complaint.

12. He accordingly submits that the complaint is vague and assuming the allegation in the complaint is correct, the same cannot give rise to