The court ruled that allegations of cheating and breach of trust based on the sale of flats established prima facie criminal offences, warranting continuation of proceedings despite claims of civil nature.

JUDGMENT :

Subhash Vidyarthi, J.

1. Heard Sri Prabhat Kumar Mishra, the learned counsel for the applicant and Sri Rajesh Kumar Singh, the learned A.G.A.-I for the State and perused the record.

2. The instant application under Section 482 Cr.P.C./ Section 528 BNSS has been filed seeking quashing of the entire criminal proceedings of Criminal Misc. Case No.35791/2025 ( State of U.P. Vs. Fahad Yajadani and others ) in the Court of Additional Chief Judicial Magistrate, C.B.I. (A.P.), Lucknow, which arises out of FIR No.0189/2023 under Sections 406 , 420, 504 and 506 IPC lodged at Police Station Mahanagar, District Lucknow, so far as it relates to the applicant.

3. The aforesaid case was instituted on the basis of an FIR lodged by the opposite party no. 2 on 24.08.2023 against six persons, including the applicant, stating that she had entered into an agreement with co-accused - Fahad Yajadani, builder of Alaya Aftek Residency, Mahanagar for purchase of a 3 BHK Flat No. H-208, measuring 1675 sq. ft. She had paid Rs.44,74,934/- through cheques but possession of the flat was not handed over to her and later the flat was sold away to one Uma Shanker. Subsequently, the same flat was again sold to another person Yuvraj Verma. The FIR states that several other persons have also been duped by the accused persons in similar manner by an organized gang of Fahad Yajadani, in which the other accused persons, including the applicant, are involved. They allure the persons for purchasing flats and thereafter grab their money and do not hand over the flats. The informant further stated that she has taken a loan from ICICI Bank, Hazratganj for purchasing the flat and that she had filed a complaint before the RERA also.

4. After investigation, initially a charge sheet dated 01.08.2024 was submitted against co-accused-Fahad Yajadani and the investigation against the other accused persons continued. Thereafter, another charge-sheet has been submitted on 27.01.2025 against five persons, including the applicant, for offences under Sections 406 , 420, 504 and 506 IPC.

5. Assailing validity of the charge-sheet, the learned counsel for the applicant has submitted that the FIR does not contain any allegation against the applicant and all the allegations are against co-accused Fahad Yajadani. He has further submitted that from the allegations leveled by the informant, no case for trial of the applicant is made out. He next submitted that the dispute is essentially of civil nature regarding which the FIR itself states that the informant has taken recourse to proceedings before the RERA and the applicant cannot be prosecuted for a dispute which essentially is of civil nature. In support of this contention, the learned counsel for the applicant has placed reliance upon a judgment of the Hon’ble Supreme Court rendered in the case reported in Rikhab Birani & Anr. Vs. State of Uttar Pradesh & Anr.: 2025 SCC OnLine SC 823, wherein it has been held that the offence of cheating is not made out from a mere breach of contract and a mere breach of contract cannot lead to prosecution of the accused person. In Rikhab Birani (Supra), the Hon’ble Supreme Court had examined the facts of the case in detail and had concluded that the ingredients of the offences were not made out.

6. The learned counsel for the applicant has also relied upon a judgment of the Hon’ble Supreme Court in the case of reported in Delhi Race Club (1940) Ltd. Vs. State of Uttar Pradesh & Anr: (2024) 10 SCC 690 , wherein it has been held that a person cannot be tried for the offences under Sections 406 and 420