Deception and inducement are essential elements for constituting the offence of cheating under Section 415 of the Indian Penal Code.

Heard the parties.

This application has been filed for quashing of the order dated 30.11.2012 passed in C.P. Case No. 545 of 2012 whereby and whereunder, cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code has been taken against the petitioner.

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

3. It is the case of the complainant that this petitioner and Samarpan Chakraborty approached the complainant and conveyed him that they have started a project whereby they will be allotting small plots to the persons who would be intending to purchase it and then they will be constructing duplex over there. At the same time, it was stated that a lot of money is required for making payment to the labourers. On that pretext they told him to give a sum of Rs. Four lakhs which they promised to return it by 30.1.2011 and if they will be failing in returning the same, they would be transferring 10 Kathas of land of Mouza No. 6 appertaining to Khata No. 196 and Plot No. 7 to him and that apart, they will be constructing a Duplex over there. The complainant believing the version of the accused persons to be true paid a sum of Rs. Four lakhs. Simultaneously, the accused persons executed a deed of agreement to the effect stated above. Thereupon, further sum of Rs. 1,60,000/-was paid to the petitioner. Later on the complainant came to know that the land, which had been promised to be transferred, was Gair Abad land whereas it had been conveyed him that the said land is raiyati land.

4. In that event, when the complainant approached the accused persons to ask for money, they not only refused to return the money but also assaulted him.

5. On such allegations, a complaint case was lodged, which was registered as C.P. Case No. 545 of 2012 under Sections 406, 420, 386, 467, 468, 471, 417 and 120B of Indian Penal Code.

6. After holding inquiry, the court took cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code vide order dated 30.11.2012, which order is under challenge.

7. Mr. Shailesh, learned counsel appearing for the petitioner, submits that it is simple case of the complainant that the petitioner did enter into an agreement with the complainant whereby a sum of Rs. Four lakhs was taken with a promise that if the petitioner would fail to return it by the time stipulated therein, he will be transferring the part of the land in favour of the complainant. If the petitioner failed to keep the promise either of returning money or executing sale deed, it will not constitute a criminal offence much less the offence either under Section 406 or 420 of the Indian Penal Code.

8. Further, it was submitted that if the case of the complainant is accepted that the petitioner had promised to transfer the land which was communicated at that time as a raiyati land but it was found to be a Gairabadi land, it will hardly make any difference as the petitioner can even transfer that land if he is in possession of that land in view of the decision rendered in a case of Ramesh Dutt and others Vs. State of Punjab and others {2009(81) AIC 183 (SC)}. Under the situation, the instant case becomes a case of civil dispute and thereby the court has committed illegality in taking cognizance of the offences.

9. As against this, learned counsel for the opposite party no. 2 submits that this is a clear cut case where the complainant has been deceived by the petitioner, as it had been conveyed by the accused persons that they will be transferring the land which is in the nature of raiyati land belonging to them but that land was a Gairabadi land and, therefore, the court cannot be said to have committed any illegality in taking cognizance of the offence punishable under Sections 406 and 420 of Indian Penal Code.

10. In the context of the submissions advanced on behalf of the parties, one needs to take notice of the provision as contai