Cheating and breach of trust can be established under Sections 406 & 420 of the Indian Penal Code when there is a premeditated intention to deceive and transfer properties instead of repaying a loan.

JUDGMENT

Dinesh Mehta, J. - By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has challenged the FIR No. 3/2022, registered at P.S. Sadar, Bikaner for the offences alleged to have been committed by him under Sections 420 & 406 read with Section 120B of the Indian Penal Code.

2. Mr. Bhadu, learned counsel for the petitioner argued that a dispute purely of civil nature has been given the colour of crime and that the necessary ingredients for constituting an offence under Section 420 & 406 of the Indian Penal Code are absent in the present case.

3. Inviting Court's attention towards the antecedent facts, learned counsel for the petitioner submitted that the petitioner has taken a loan from the respondent-complainant and due to financial difficulties, he could not repay the loan amount, for recovery whereof the complainant has lodged the present FIR.

4. It is also informed by Mr. Bhadu that at the time of receiving loan the complainant got the agreement in question executed by the petitioner in his favour apart from two blank cheques for securing the amount advanced by the petitioner. He submitted that later on the complainant lodged the same in the Bank and in spite of the fact that they were returned unpaid, neither any proceedings under Negotiable Instrument Act were taken up nor was this fact narrated in the FIR.

5. It is also submitted that instead of taking remedies available in law for dishonouring the aforesaid cheques, the complainant has filed the present FIR knowing it fully well that he will neither succeed in the civil suit nor would he succeed in the complaint filed for dishonouring of the cheques under Section 138 of the Negotiable Instruments Act, 1881.

6. In support of his contention that for recovery of loan/amount, FIR cannot be filed, learned counsel relied upon the following two judgments of Hon'ble the Supreme Court:

(i) Satishchandra Ratanlal Shah v. State of Gujarat reported in (2019) 9 SCC 148

(ii) Alpic Finance Ltd. v. P. Sadasivan & Anr. reported in (2001) 3 SCC 513.

7. While opposing petitioner's prayer for quashing the FIR, learned Public Prosecutor argued that the petitioner having taken a huge loan, had assured the complainant that the said amount would be returned back soon and for this purpose an agreement was also executed by the petitioner in favour of the complainant indicating therein that if he fails to repay the loan amount, he would transfer his properties mentioned in the agreement to the complainant. Whereafter instead of returning the amount back, he not only allowed the cheques dishonoured but has also transferred the said properties vide two sale deeds dated 28.09.2021 and 22.10.2021 to other persons.

8. Learned Public Prosecutor thus, emphasised that the petitioner had premeditated mind to deceive the complainant for which despite having agreed to transfer the subject properties to the complainant (in the event of failure to repay the loan amount) he sold the properties to other persons vide above referred two sale deeds.

9. Heard learned counsel for the petitioner and the learned Public Prosecutor and perused the material available on record.

10. The petitioner has not disputed the existence and execution of the agreement in favour of the complainant, which contains a stipulation that in case of failure to repay the loan amount, the property mentioned in the agreement would be sold/transferred to the complainant.

11. It is also not in dispute that the cheques given by the petitioner got dishonoured.

12. In normal circumstances, what learned counsel for the petitioner has argued would have impressed this Court but in the present case, facts are striking. The petitioner has executed two agreements (dated 14.10.2020 and 22.01.2021) in favour of the complainant agreeing that in the event of failure to repay the amount by 31.03.2021, he would transfer the properties mentioned in the agreement to the comp