The need to establish mens rea for the offence of cheating under Section 420 of the IPC.

1. The petitioner is the accused in Crime No.75 of 2013 of the Kadampuzha Police Station registered at the instance of the 2nd respondent herein alleging offences punishable under Section 406 and 420 of the IPC. In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash Annexure-A1 FIR on the ground that the continuance of criminal proceeding is an abuse of process.

2. To appreciate the contentions advanced, a brief reference to the allegations raised in the FI Statement will be apposite.

3. According to the 2nd respondent, he is engaged in running laterite quarries. On 30.1.2013, he entered into an agreement with the petitioner, on the strength of which he was permitted to extract laterite from an item of property having an extent of 35 cents belonging to the petitioner. Consideration was fixed at Rs.35,000/- per cent and an advance amount of Rs.6,00,000/- was handed over to the petitioner. The relevant revenue records were handed over to the 2nd respondent for securing a quarrying permit. When the petitioner was asked to secure consent from the neighboring property owners he vacillated and asked for time till the rain sets in. When he approached the petitioner later he raised the ante and demanded a sum of Rs.50,000/- per cent. This demand was rejected by the 2nd respondent. Thereafter, the petitioner is alleged to have given a false complaint before the mining authorities alleging illegal quarrying by the 2nd respondent. Based on the complaint, the mining officers visited the quarry and imposed a fine of Rs.30,000/-. According to the 2nd respondent, the petitioner with intent to cheat the 2nd respondent had entered into an agreement and accepted a sum of Rs.6,00,000/- and thereafter went back on his promise. As a result of the acts of the petitioner, the 2nd respondent sustained a loss of Rs.10 lakhs. Raising the above allegations, a statement was furnished based on which Annexure-1 Crime was registered.

4. Heard the learned counsel appearing for the petitioner, the 2nd respondent and also the learned Public Prosecutor. I have gone through the materials on record as well.

5. The learned counsel appearing for the petitioner relying on a catena of binding precedents would contend that the dispute between the parties is essentially civil in nature which has been given the cloak of a criminal offence in disguise.

6. The counsel appearing for the 2nd respondent would counter the submissions and would urge that the investigation has just commenced and no extraordinary reason is made out to quash the proceedings at the threshold stage itself.

7. Having gone through the nature of allegations raised against the petitioner, it is evident that an agreement was entered into between the parties wherein mutual rights, liabilities and obligations were fixed. Certain sums were handed over by the 2nd respondent to the petitioner to enable him to carry out quarrying work in the property of the petitioner. It appears that objection was raised by some of the neighbours against the quarrying activity. The 2nd respondent approached the petitioner as demanded him to quell the complaints raised by the neighbours. It is also alleged that against the activities of the 2nd respondent, which was found to be illegal, the authorities have imposed penalty.

8. The question is whether the above allegations would attract the penal provisions as alleged.

9. For the purpose of constituting an offence for criminal breach of trust and/or cheating, the ingredients thereof as contained in Sections 405 and 415 respectively must be borne out from the bare allegations. The terms of Section 405 are very wide. It applies to one who is in any manner entrusted with property or dominion over property. The section does not require that the trust should be in furtherance of any lawful object. The section provides inter alia that if such a person dishonestly misappropriates or converts to his own use property entrusted to him he