The central legal point established in the judgment is the requirement of establishing fraudulent or dishonest intention at the time of inducement to constitute the offence of cheating under Section 420 IPC.

JUDGMENT

1. This petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 02.05.2019 in Cr.R No. 40/2018 passed by Second Upper Sessions Judge, Harda, affirming the order dated 17.09.2018 in Criminal Case No. 1840/2015 passed by JMFC Harda, whereby the learned JMFC has framed the charge of offence under Section 420 IPC against the petitioner and another accused person.

2. According to the case, on the basis of a complaint made by complainant/respondent No. 2, the police has registered a case for the aforesaid offence against the petitioner and his father namely Bhagchand. It is mentioned in the FIR that both the accused persons have entered into an agreement with the complainant in respect of transaction of a house for a sale consideration of amount of rupees 13,00,000/-. In this context, allegedly the petitioner and his father got rupees 8,50,000/- as an advance through cash and cheque mode. The parties have decided to execute a registered sale deed on or before 01.12.2013. It is further alleged by the complainant that while executing the said agreement, the accused persons told him that the property is free from all encumbrances and same fact is also written into the agreement. After passing the stipulated period, when the complainant contacted the accused persons, they started avoiding him. Thereafter, the complainant came to know that the property in question was already mortgaged to State Co-operative Society, Bhopal, against a loan of Rs. 60,000/- which, after defalcation by the accused persons, has been increased upto rupees 10,98,186/-. The complainant alleged that the petitioner and his father committed cheating with him and grabbed rupees 8,50,000/- from him and they refused either to return the money or execute the sale deed.

3. The police has registered a case against the petitioner and his father under Sections 420, 406, 506/34 IPC and submitted a charge sheet before the Court of JMFC, Harda. Vide order dated 17.09.2018, the learned JMFC has framed the charge of Section 420 IPC against both the accused persons and discharged them in other offences. Being aggrieved by the order of framing of charge under Section 420 IPC, the petitioner directly approached to this High Court by filing a petition under Section 482 Cr.P.C bearing M.Cr.C No. 41439/2018, subsequently the same was withdrawn by the petitioner with a liberty to approach before the Sessions Court under revisional jurisdiction.

4. Learned counsel for the petitioner submits that the petitioner is an innocent person and has been falsely implicated in the case. He submits that learned Courts below erred in framing the charge of Section 420 IPC whereas no material is available in the case for framing the same. He further submits that neither the petitioner is a party in the agreement in question nor he is a witness of said agreement, hence, he cannot be held liable for any offence. Moreover, the entire allegations are based on the execution of the agreement and violation of the terms and conditions thereof, hence, the dispute is of civil nature and for which a criminal prosecution cannot be launched against the petitioner. In support of his contentions, he relied on the judgement of the Hon'ble Apex Court in the case of Devendra & others Vs. State of UP & another reported in (2009) 7 SCC 495 .

5. On the other hand, learned panel lawyer for respondent No. 1/State as well and counsel for respondent No. 2 oppose the petition submitting that there is sufficient material available in the case for framing the charge of Section 420 IPC against the petitioner. The complainant has specifically alleged against the petitioner for the aforesaid offence, hence, charge framed may not be quashed at this stage. The learned Courts below rightly passed the order. Learned counsel for respondent No. 2 further submits that the offence is related to cheating in respect of property dispute and there is no bar to avail both the remedies i.e.