IMPORTANT POINT
Dishonest or fraudulent intention must be present at the inception of a transaction to establish offences of cheating and criminal breach of trust; mere breach of contract does not constitute a criminal offence.

JUDGMENT :

Sanjay Dhar, J.

1. By this common order, the afore titled two petitions filed under section 482 of the Code of Criminal Procedure are proposed to be disposed of.

2. Through the medium of CRM(M) No. 283/2019, the petitioners have challenged the criminal complaint filed by respondent against them before the Court of Judicial Magistrate, 1st Class (City Munsiff), Srinagar. Challenge has also been thrown to the proceedings initiated by the learned Magistrate against the petitioner on the basis of the said complaint. In the complaint commission of offences under sections 406 and 420 RPC has been alleged against the petitioners and the basis of the said complaint is Memorandum of understanding dated 30th April, 2012.

3. Through the medium of CRM(M) No. 284/2019, the petitioners have challenged the criminal complaint filed by respondent against them before the Court of Judicial Magistrate, 1st Class (City Munsiff), Srinagar. Challenge has also been thrown to the proceedings initiated by the learned Magistrate against the petitioners on the basis of the said complaint. The basis of the said complaint is Memorandum of understanding dated 21st of January, 2013.

4. In both the impugned complaints, allegations made against the petitioners are similar in nature. In these complaints, it has been alleged by respondent/Complainant Company that it was approached by the accused persons and persuaded it to buy their product. Accordingly, the complainant was induced to invest money in the product of the petitioners/accused by giving false hope of appreciation and lucrative assured returns on the investment. A further promise is stated to have been made by the accused/petitioners to the respondent/ complainant that the property would be leased out at a very high rental and that maintenance, leasing and upkeep of the property shall be provided by them. It is averred in the complaints that a Memorandum of Understanding was executed by the petitioners and the respondent. Memorandum of Understanding dated 30th April, 2012 is subject matter of first complaint and Memorandum of Understanding dated 21st January, 2013 is subject matter of the second complaint.

5. It is alleged that pursuant to the execution of Memorandum of Understanding dated 30th April, 2012, the respondent/complainant invested an amount of Rs.1,0968,776/- whereas pursuant to Memorandum of Understanding dated 21st January, 2013, the complainant invested an amount of Rs.1,7009,850/- with the accused. It is further alleged in the complaints that the petitioners assured the complainant and undertook to pay a certain amount of money till the time the building was constructed and the units are leased out to prospective lessees/tenants. It is also alleged that the petitioners undertook to pay a monthly cheque of assured return to the respondent/ complainant for every year till the execution of first lease deed subject to deduction of TDS. It has been alleged that the petitioners/accused have defaulted to pay the assured return to the respondent/complainant with effect from May/August, 2018, which, according to the respondent/complainant, amounts to cheating, dishonesty and intentional misrepresentation on the part of petitioners/accused. It has also been alleged that by not honouring the commitment in terms of MOUs, the accused have made the complainant to suffer mental agony as also made him to suffer financially. It is also averred in the complaints that the legal notices were issued to the petitioners but in spite of the same, the petitioners have failed to honour their commitment. According to the respondent, the petitioners had a criminal intention to cheat the respondent/complainant so as to cause wrongful loss to its company.

6. It appears that upon receipt of the aforesaid complaints, the learned Magistrate, after recording the preliminary statements of the complainant and its witnesses on oath, recorded his satisfaction that, prima facie, offences under section 420, 406 RPC are m