The central legal point established in the judgment is that for the offence of cheating under Section 415 of the Indian Penal Code, there must be deception and inducement, which were found to be lacking in the case.

Heard learned counsel appearing for the petitioner and learned counsel appearing for the State.

2. The petitioner by filing this application under Section 378(4) of the Code of Criminal Procedure Code, 1973, is seeking leave to appeal against the order and judgment dated 26.09.2011 passed by Veena Mishra, learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No.138 of 2009 [T.R. No.675 of 2011] whereby and whereunder the accused persons were acquitted of the charges under Sections 417, 323, 504 of the Indian Penal Code.

3. It is the case of the complainant that the opp. Parties No.2 and 3 being owners of the land bearing Khata No.65 appertaining to Plot Nos.182 and 183 situated at Mauza :-Tundi along with a constructed house over an area of 5 Feet X 37 Feet, intended to sell it for a consideration amount of Rs.60,000/-. When the complainant offered to purchase it, the accused persons entered into an agreement with the complainant to sell it to him. Accordingly, Rs.20,000/- was paid as an advance. Rest of the money of Rs.40,000/- was to be paid later on which the complainant subsequently tendered but the accused persons refused to accept it and to execute the sale-deed. Therefore, a Legal notice was sent calling upon the accused persons to execute the sale deed. When the complainant came to the house of the accused persons for requesting them to execute the sale-deed, the accused persons became quite angry and assaulted the complainant with fists and slaps and snatched the file of the complainant containing important documents.

4. On such allegation, a complaint was lodged. When after holding enquiry, summons were issued to the accused persons. After appearance when the accused persons were put on trial, the complainant examined three witnesses who did depose about the fact which is there in the Complaint petition. However, the court did record that no offence is made out for the offence punishable under Section 417 of the I.P.C. At the same time, it was recorded that there are contradictory evidences on the point of assault and, therefore, the court did find them not trustworthy.

5. Accordingly, the accused persons were acquitted of all the charges. Being aggrieved with that order, this application has been filed.

6. Mr. Tewari, learned counsel appearing for the petitioner submits that in spite of evidences being there that the accused persons including the Opposite Party Nos.2 and 3 having accepted the part of the consideration money, refused to execute the sale deed making out a case of cheating, the court recorded the order of acquittal. Hence, the order passed by the trial court is fit to be set aside.

7. In the face of the allegation made in the complaint petition, no case of cheating is made out as it is simple case of the complainant that the complainant having entered into an agreement to execute a sale deed with respect to a piece of land after receiving part of the consideration money, refused to execute the sale deed. There has been no allegation nor there is any circumstances to establish that the accused persons had had intention to defraud the complainant.

8. In this regard, I may refer to Section 415 of the Indian Penal Code which speaks about the offence of cheating and which reads as follows :-

“Cheating :- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver 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'.

9. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating.

(1) there should be fraudulent or dishonest inducement of a person by deceiving him

(2)(a) the person so deceived should