ORDER :

1. Shri S.K. Tiwari, counsel for the applicant. Shri Amit Goswami, counsel for the respondent No. 1. Mohd. Irshad, Panel Lawyer for the respondent No. 2/State. With the consent of the parties, the case is heard finally.

2. The necessary facts for the disposal of the application in short are that the respondent No. 1 has filed a Criminal Complaint against the applicants for offences punishable under sections 419, 420, 406, 34 of Indian Penal Code. It is the case of the respondent No. 1 that the applicants had entered into an agreement to sell their land Survey No. 631, area 0.37, Survey No. 631/936 area 0.38 hectares, Survey No. 902/1 area 6.20 hectares, Survey No. 902/1Kh area 7.74 hectares total 14.69 hectares for a consideration of Rs. 62,95,500/- @ Rs. 90,000 per bigha. The respondent No. 1 paid Rs. 6,29,550 by way of advance in the presence of the witnesses and it was agreed that the remaining amount will be paid on 1-9-2011 i.e. at the time of registration of the sale-deed. The agreement to sell was executed on 1-6- 2011. On 1-9-2011, the respondent No. 1 remained in the office Sub-Registrar, Dabra for the entire day, but the applicants did not turn up. The respondent No. 1 submitted his objection to the Sub-Registrar on the same day. Thereafter, the respondent No. 1 sent a legal notice through his Counsel on 6-9-2011 but with an intention to misappropriate the advance amount, the applicants have not executed the sale-deed. Thus, it was alleged that in fact the agreement to sell was executed by the applicants with an intention to cheat the respondent No. 1 and to misappropriate the amount given by way of advance by him.

3. The respondent No. 1 examined himself and his witnesses under sections 200 and 202 of Criminal Procedure Code and the Magistrate after considering the allegations as contained in the Complaint and the statements of the witnesses, took cognizance of offence by order dated 11-4-2012 under section 406 and 420 of Indian Penal Code.

4. Being aggrieved by the order of the Magistrate, the applicants filed a Criminal Revision which too has suffered dismissal by order dated 29-1-2016 passed by 1st A.S.J. Dabra in Criminal Revision No. 415/2012.

5. It is submitted by the Counsel for the applicants that even if the entire allegations as made in the complaint are taken on their face value, then it would be clear that the case is predominantly of Civil in nature and the respondent No. 1 has tried to give colour of criminal case which is not permissible. It is further submitted that the respondent No. 1 has an efficacious remedy of filing suit for specific performance of contract and in a case of mere breach of contract, criminal proceedings should not be allowed to continue. To buttress his contentions, the Counsel for the applicants has relied upon ARCI vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348, V.Y. Jose vs. State of Gujarat, (2009) 3 SCC 78 and Sharon Michael vs. State of Tamil Nadu, (2009) 3 SCC 375 and submitted that mere failure on the part of the applicants to keep their promise at a later stage would not bring the case within the meaning of Cheating. Further it was submitted that unless and until, there is an intention to cheat the complainant on the day one, no offence can be said to be made against the applicants.

6. Per contra, it is submitted by the Counsel for the respondent No. 1, that the applicants after having received an amount of Rs. 6,29,550 did not execute the sale-deed. They have misappropriated the said amount and hence, prima-facie offence has been committed.

7. Heard the learned Counsel for the parties.

8. The facts of this case lies in a very narrow campus. The allegations are that an agreement to sell was executed and an amount of Rs. 6,29,550 was received by the applicants by way of advance and thereafter they did not execute the sale-deed. Whether the non-execution of sale-deed would give rise to only civil dispute or it would include the criminal intent is a core question in