The central legal point established in the judgment is the necessity of deception and fraudulent inducement for the offence of cheating under the Indian Penal Code, and the elements of criminal breach of trust.

By Court.--This application has been filed for quashing the order dated 20.2.2001 passed by the then Chief Judicial Magistrate, Ranchi in Complaint Case No. 597 of 2000 whereby and whereunder cognizance of the offences punishable under Sections 420 and 406 of the Indian Penal Code has been taken against the petitioner.

2. The case of the complainant is that while the complainant was searching a suitable flat/building for purchasing it, he came in contact with the petitioner who told that he along with his mother, brother and sister are jointly constructing multi storied building which would be named as 'Abhilasa Complex' and that booking is going on for sale of the flats. The flat measuring 990 sq. ft. and 960 sq.ft. would be sold for a consideration amount of Rs.4.70.250/- and Rs.4.56.000/- respectively. Thereupon the complainant, his brother and one Ranjan Das Gupta agreed to purchase flats by making initial payment of Rs.25,000/-. Out of it, a sum of Rs.10,000/- was paid by way of cheque and the rest of the amount of Rs.15,000/- was subsequently paid by the complainant and his brother in cash. On making such payment, the complainant and his brother asked the petitioner to execute deed of agreement to sell so that they may take 'loan from the Company. The said deed was scribed over which complainant and his brother put their signatures and gave it to the petitioner for putting his signature and signatures of other owners but they never returned the document after putting their signatures. Subsequently, when the complainant approached the accused, he communicated to the complainant that now the price of the flat has been fixed at the rate of Rs.550/- per sq. ft. whereas earlier it was fixed at the rate of Rs.475/- per sq.ft. and then refused to hand over the possession of the flat and also retained the said document over which the complainant and his brother put signatures and thereby it has been alleged that the accused persons have committed offence punishable under Sections 406 and 420 of the Indian Penal Code. On such complaint, when cognizance of the offence was taken by the Court, vide its order dated 20.2.2001, the said order has been challenged in this application.

3. Learned counsel appearing for the petitioner submits that the petitioner can never be said to have committed offence of misappropriation or cheating as the petitioner has never been alleged to have induced the complainant fraudulently or dishonestly to part with the money for purchasing the flat and as such, no offence is made out punishable either under Section 420 or under Section 406 of the Indian Penal Code, even if it is accepted that the petitioner, has retained a sum of Rs.25,000/- paid by the complainant and his brother.

4. Learned counsel further submits that utmost it can be said to be a case of breach of agreement but never the case of criminal breach of trust or cheating.

5. On the other hand, it is the case of the complainant that the petitioner had agreed to sell the flat to the complainant and his brother and had received initial payment which, according to the complainant, was never returned nor the flat was sold to the complainant.

6. Under the circumstances, it is to be seen as to whether the allegation made in the complaint does constitute offence of cheating and misappropriation or not?

7. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as under:

"Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to driver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to cheat".

8. From its reading it appears that following ingredients should necessaril