A civil dispute arising from breach of contract does not constitute criminal offences of cheating or misappropriation under IPC without initial fraudulent intent.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. Though opposite party No.2 has put his appearance through a lawyer but no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash/set aside the cognizance order dated 29.09.2021 passed by the learned Judicial Magistrate, Ranchi in Doranda P.S. Case No.248 of 2018 corresponding to G.R. No.2386 of 2021 registered for the offences punishable under Sections 420, 406, 120B and 34 of the Indian Penal Code.

4. The allegation against the petitioners is that the petitioner No.1 entered into a development agreement for development of her land by the complainant and as per which, the petitioner No.1 was supposed to get 40% of the constructed area while the remaining 60% was of the complainant. There is also allegation against the petitioners that the petitioner No.1 was having 40% share in Flat No.302 which she offered to sell to the complainant and the complainant accepted the offer and paid Rs.22,65,000/- but the petitioner No.1 has not executed the transfer deed in respect of her 40% share of Flat No.302 nor returned the amount of money of Rs.22,65,000/-. The only allegation against the petitioner No.2 is that the petitioner No.2 received two cheques of Rs.2,50,000/- each with the consent of petitioner No.1, out of the said amount of Rs.22,65,000/- paid by the complainant. There is further allegation that the petitioner No.1 executed a power of attorney in which the petitioner No.1 claims 60% share of her from the constructed area; whereas the share of the complainant-builder is 40%.

5. It is submitted by the learned counsel for the petitioners that the allegations against the petitioners are out and out false. The dispute between the parties is a civil dispute. As per Clause No.18 of Development Agreement, the copy of which has been annexed herewith, in case of any dispute or difference between the parties arising out of or relating to this Development Agreement, the same shall be settled by reference of the dispute or difference to the Arbitrators appointed by both the parties but instead of going for the arbitration, the complainant has given a cloak of criminal case to the civil dispute. It is next submitted that even if the entire allegation made against the petitioners are considered to be true, still neither the offence punishable under Section 420 nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioners even with the aid of Section 120B or 34 of the Indian Penal Code.

6. Learned counsel for the petitioners draws the attention of this Court towards the copy of the certified copy of the power of attorney executed by the petitioner No.1 in favour of the complainant which also bears the signature of the complainant and submits that therein at page 75 of the brief, it has categorically been mentioned by the petitioner No.1 that the ratio of the share of builder is 60% while that of the petitioner No.1 is 40%. It is next submitted that this criminal case has been instituted against the petitioners only for the purpose of wreaking vengeance. Hence, it is submitted that the prayer, as prayed for in this Cr.M.P., be allowed.

7. Learned Addl. P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in the instant Cr.M.P. and submits that materials in the record are sufficient to constitute both the offences punishable under Sections 406 and 420 of the Indian Penal Code. Hence, it is submitted that this Cr.M.P., be