A mere breach of contract does not constitute the offence of cheating under Section 420, I.P.C. and the complainant must prove that the accused had the intention to deceive at the time of the contract.

( 1 ) THE above two writ petitions are inter-connected and, therefore, they are being disposed of together.

( 2 ) THE petitioners have been summoned under Sections 420 and 120-B, I. P. C. , vide order dated 25/09/1996 passed by Chief Judicial Magistrate, Ghaziabad. The petitioners filed an application for recall of the order on the ground that the court has no territorial jurisdiction to try the case and on the ground that the case is of a civil nature and no criminal offence is made out. The application for recall of order has been rejected by lxth A. C. J. M. , Ghaziabad, vide order dated 17/05/1997, a copy of which is Annexure-7 to the petition. Being aggrieved against the rejection of recall application, the petitioners filed a revision before the Court of Session which has been dismissed by Xth Addl. Sessions Judge, Ghaziabad on 10/07/1998, vide Annexure-8 to the petition. Under these circumstances the present writ petitions have been filed.

( 3 ) I have heard Sri G. C. Saxena, learned counsel for the petitioners, Sri N. K. Chaturvedi, learned counsel for respondent No. 2 and the A. G. A. for the State.

( 4 ) SO far as territorial jurisdiction of the Court is concerned, the objection raised on behalf of the petitioners has no force. It is alleged in paragraph 5 of the complainant (Annexure-4) that accused No. 1 came to Ghaziabad on 6/ 7/12/1989 and a sum of Rs. 2400. 00 was paid to the accused at Ghaziabad. Again it is alleged in paragraph 7 of the complaint that the accused approached the complainant on 25/02/1990 at Ghaziabad and persuaded the complainant to purchase some more Units. In paragraph 8 of the complaint it is alleged that the complainant gave a draft for Rs. 35,000. 00 to the accused and the draft was issued by New Bank of India, Ghaziabad Branch. In paragraph 9 of the complaint a sum of Rs. 20,000. 00 is said to have been paid to accused No. 1 at Ghaziabad on or about 15/03/1990.

( 5 ) IT is sell settled that at the stage of summoning of the accused, the allegations made in the complaint have to be presumed to be correct. It is clearly alleged in paragraphs 5, 7, 8 and 9 of the complaint that at least a part of the cause of action arose within the jurisdiction of courts located at Ghaziabad. Therefore, the objection regarding territorial jurisdiction raised by the petitioners was rightly repelled by the Courts below.

( 6 ) AS regards the second objection, a gist of the complaint (Annexure-4) will have to be given. The complainant says that he is a retired member of U. P. Higher Judicial Service. He alleges that the accused entered into a conspiracy and formed a company in the year 1988 under the name and style of Gwalior Food and Farm Ltd. (GFFL ). Accused No. 2 became Chairman of the Company and accused No. 1 became whole time Director and the other accused became Directors. It is further alleged that to defraud the public, the Company launched a Scheme known as Green Field Scheme and members of the public were invited to invest on the terms and conditions mentioned in agreement dated 19/03/1990.

( 7 ) THE complainant came into contact with the accused through complainants cousin Kailash Agarwal and the accused gave an exaggerated account of the Scheme. The complainant was taken to Shivpuri (Madhya Pradesh) and was shown the farm with a view to allure and induce the complainant. As a result, the complainant agreed to purchase six Units and paid Rupees 42,000/- by Bank Draft drawn in favour of GFFL. The accused took a further sum of Rs. 24,000. 00 in cash at Ghaziabad. It is alleged by the complainant in Annexure-4 that the accused did execute a sale-deed of six acres of land in his favour, but that land was in a remote corner of the farm and no trees were planted on the land transferred to the complainant. The accused further represented to the complainant that a five feet high and four to five kilometres long boundary wall is to be constructed around the farm and, therefore, some more money