The court established that allegations of fraud in a property sale agreement do not constitute a cognizable offence under IPC when no mens rea is present, and the dispute is civil in nature.

Dr. Ajoy Kumar Mukherjee , J.:

1. This application has been preferred challenging the impugned proceeding being G.R case no. 162 of 2020 pending before learned ACJM , Searampore. In the first information report it has been alleged interalia that the petitioner and five others canvassed that they are the owners of a particular plot of land and they are willing to sell out the said plot of land to intending purchasers. The opposite party no. 2 and his wife approached the petitioner and expressed their willingness to buy the said plot of land at a total consideration of Rs. 8,15,00,000/- Accordingly an agreement was entered into by and between the parties on march 13, 2019 when the opposite party no. 2 and his wife paid a sum of Rs. 1,00,00,000/- to the petitioners through RTGS. However at the time of preparation of the sale deed, the opposite party no. 2 and his wife noticed that the share of one daughter of original owner, deceased Prafulla Dhan Niyogi was not properly disclosed in respect of her title in the said property. On being asked the petitioners took the plea that they are the owners like ostensible owners and also owners by adverse possession. But they did not provide any document to sustain their claim. Thereafter the petitioners forfeited Rs. 9 lakhs from the earnest money and have done so intentionally to cheat the opposite party no. 2 and his wife. It is further alleged that the petitioners had entered into the agreement only to cheat the opposite party no. 2 and his wife knowing fully well that their title in the said plot of land is totally defective. Now the petitioner and his other partners are not returning the aforesaid sum of Rs. 9 lakhs to the opposite party no. 2, nor they are receiving his phone calls. On January 27, 2020 the opposite party no. 2 visited the residence of the petitioner to collect the money, but he was driven away. The investigation has already been culminated into a charge sheet under section 420 /406/120B of the Indian Penal Code against the petitioners of CRR 2276/2022, CRR 2279 of 2022, CRR 2280 of 2022, CRR 2283 of 2022 and CRR 2460 of 2022.

2. Being aggrieved by the impugned proceeding the petitioners state that the transaction between the opposite party no. 2 and the petitioners is a civil contract and therefore complainant/opposite party ought to have approached before the civil court seeking appropriate remedy. Petitioners’ further contention is that petitioners had acted totally in terms with the conditions engrafted in the agreement mentioned in the FIR and have refunded the earnest money to the opposite party no. 2, after retaining the amount agreed upon. The said sum of money was forfeited as the opposite party no. 2 and his wife had failed to complete the sale within the time specified in the agreement. At this juncture, if the opposite party no. 2 or his wife has any claim, then the same is recoverable only through civil proceeding and no criminal prosecution is maintainable in present set of facts.

3. The petitioners further argued that the averments made to constitute the FIR, fails to spell out the ingredients necessary to constitute any cognizable offence which can be alleged to have been committed by the petitioners herein warranting the registration of the FIR. From the materials on record, there is nothing to show that at the time of execution of the alleged agreement by and between the parties, there was any criminal intention on the part of the petitioners. If at all the petitioners have caused any breach of contract, then the remedy of the opposite party lies in civil proceeding. The ingredient necessary to constitute any cognizable offence are essentially absent from the materials on record to the present case. Therefore, continuance of further proceeding shall tantamount to abuse of the process of law. Accordingly the petitioner has prayed for quashing the impugned proceeding.

4. Mr. Choudhury and Mr. Dey learned counsel appearing on behalf of opposite party no. 2 a