The judgment established the distinction between the essential ingredients of cheating and criminal breach of trust under the Indian Penal Code, influencing the court's decision on the validity of the cognizance taken under the respective sections.

( 1 ) IN this application, the petitioner has challenged the order dated 2-9-2002, passed by the Judicial Magistrate, ranchi in C. P. Case No. 481 of 2002, whereby the learned Magistrate has taken cognisance of the offences under Sections 420 and 406 of the Indian Penal Code against the petitioner.

( 2 ) THE Opposite Party No. 2, Dr. Raj narayan Raj filed a complaint before the learned Chief Judicial Magistrate, Ranchi on 2-8-2002 against the petitioner and his wife umravati Devi alleging therein that he had purchased a Mahendra Jeep bearing No. JH-11 /a-2953 from the wife of the petitioner. It is alleged that after using the vehicle for some time, he thought to resale the said vehicle to the petitioner and, accordingly he offered the petitioner to purchase of the said vehicle and then the petitioner is said to have agreed to purchase the same and both the parties agreed to the price of the vehicle at rs. 1,16,000/ -. Accordingly, a written agreement was executed between them on 3-1-2002. It is further alleged that as per the terms of the agreement, the complainant handed over the said Jeep to the petitioner and the petitioner was to pay 1,30,000/- on 20th of June, 2002 and after a sum of Rs. 20,000/- on 20th of July, 2002 as per the terms of the agreement. Lastly, it was alleged that even after expiry of the period as agreed between the parties, the petitioner neither paid the price for the vehicle agreed upon nor he returned the vehicle to the complainant.

( 3 ) THE complainant was examined on solemn affirmation and thereafter one witness was examined on his behalf during enquiry under Section 202, Cr. P. C. Subsequently by the impugned order, the learned judicial Magistrate took cognizance of the offences under Section 406, I. P. C. against the petitioner only and not against the wife of the petitioner who was also named as an accused in the complaint petition.

( 4 ) LEARNED counsel for the petitioner has submitted that even if the facts as alleged in the complaint petition and also the statement of the complainant on solemn affirmation as well as the statement of the witnesses examined during enquiry under Section 202, cr. P. C. are accepted on its face value, no offence at all punishable under the Indian Penal Code is made out. Learned counsel for the petitioner further submitted that at best it will be a case of civil nature as it gives rise to a civil liability.

( 5 ) HE further submits that even according to the complaint petition, the ingredient of Section 420 and 406, I. P. C. are not attracted and, therefore, the cognizance taken under those Sections are bad in law. Justifying his arguments, learned counsel for the petitioner submits that even from the complaint petition, it appears that admittedly the proposal to sale the vehicle was from the side of the complainant and the vehicle was handed over to the petitioner as per the terms of the agreement, therefore, there was no inducement from the side of the petitioner to deliver the property or to compel the complainant for the same. Therefore, essential ingredient for Section 420, I. P. C. is not made out.

( 6 ) IN support of his submission, learned counsel for the petitioner has relied on a decision in the case of Sanjoy Kumar v. State of Bihar Reported in (1999 (2) Eastern Criminal Cases 888 ).

( 7 ) ON the other hand, Mr. Habib, learned counsel appearing for the complainant-Opposite party No. 2 has argued that the order taking cognizance cannot be interfered with at this stage, because from the said order, it appears that the learned Magistrate has fully applied his mind and thereafter finding a prima facie case against the accused persons has taken cognizance. He further submitted that the petitioner can very well be advised to raise all the points at the time of framing of charge.

( 8 ) LEARNED counsel for the Complainant-Opposite Party No. 2 further submitted that even if the liability may be of civil nature but it also discloses the offence punishab