Heard learned counsel appearing for the petitioners and learned counsel appearing for the Opposite Party No. 2 as well as learned counsel appearing for the State.

2. This application has been filed for quashing of the order dated 24.1.2012 passed in Complaint Case No. 2312 of 2011, whereby and where under, cognizance of the offences punishable under Sections 420 and 406• of the Indian Penal Code has been taken against the petitioners.

3. Before adverting to the submissions advanced on' behalf of the parties, the case of the complainant needs to be taken notice of.

4. It is the case of the complainant that the complainant was a monthly tenant in a building belonging to M/s Ram Das and Son. The other day these petitioners who had been engaged by the owner of the building to construct a r(1ultistoried building as well as owner came to him and told that they are proposing to construct a multi-storied building over that piece of land over which building was exiting in which he was tenant. He was asked to vacate the premises on a condition that he will be provided with sufficient accommodation at the rate of Rs. 3501per square feet. When the proposal was accepted by the complainant, aforesaid three stakeholders entered into a tripartite agreement on 18.2.2003. In terms of that agreement, the Complainant vacated the premises. When multi-storied building was built over it, the complainant approached to these petitioners to give possession over one of the flats at the rate agreed upon between them, these petitioners avoided it on one pretext or the other. Ultimately it was communicated to him that the value of the flat got escalated.

5. Further case is also that while entering into an agreement, promise had also been made by these petitioners to pay rental of the flat which the complainant will be taking on rent which promise had been carried out by the petitioners.

6. Further it has been alleged that the petitioners' did not give possession of the flat rather they sold almost all the flats of the building and thus, it has been alleged that the complainant has been , cheated by these petitioners.

7. On such allegation, a case was registered as Complaint Case No. 2312 of 2011, in which cognizance of the offence' punishable under Sections. 420 and 406 of the Indian Penal Code was taken vide order dated 24.1.2012 which is under challenge in this application.

8. Mr. Sarkhel, learned counsel appearing for' the petitioners submits that accepting the entire allegation made in the complaint to be true, no offence whatsoever is made out either under Section 406 or Section 420 of the Indian Penal Code as the petitioners on the face of the allegation cannot be said to have deceived the complainant fraudulently.

9. Further it was submitted that if the possession of the flat has not been given to the complainant, at best it would amount to breach of contract and hence, the petitioners are not liable to be prosecuted criminally and, therefore, the order taking cognizance is fit to be quashed.

10. As against this, Mr. Singh, learned Senior Counsel appearing for the Opposite Party No.2 by referring to the statements made in Paragraph Nos. 4, 9 and 14 of the complaint petition, submitted that the petitioners and also the landowner had misrepresented him that he will be provided with a flat, if over the same land, multi-storied building is constructed after he vacates the house which was existing from before. On such misrepresentation, the complainant vacated the house and when the building was completed, the possession was never given to him in terms of the agreement entered into in between the parties and thereby, the petitioners can certainly be said to have committed offence under which cognizance of the offence has been taken.

11. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegations made in the complaint does constitute offences of cheating and criminal preach of trust or not?

12. The of