The existence of a parallel civil remedy does not bar criminal prosecution for cheating if the allegations and investigation material prima facie establish the element of dishonest intention (mens rea) and the commission of a cognizable offence.

Order on Board

Per Ramesh Sinha, Chief Justice

1. Heard Mr. Sumit Shrivastava, learned counsel for the petitioner as well as Ms. Vaishali Mahilong, learned Deputy Government Advocate, appearing for the State/respondent No.1.

2. The petitioner has filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘B.N.S.S.’) praying for following relief :-

“It, is therefore, prayed that the petition may kindly be allowed and the FIR with chargesheet of Crime No. 18/2026 registered at P.S. Kasdol, Distt. Balodabazar- Bahatpara (C.G.), for offences punishable u/s 420 of Indian Penal Code and the order of taking cognizance dated 07.02.2026 passed in Criminal Case No. 68/2026 with criminal proceedings pending before the Court of JMFC Kasdol, Distt.-Balodabazar Bhatapara (C.G.) may kindly be quashed, in the interest of justice.”

3. Mr. Sumit Shrivastava, learned counsel for the petitioner, submits that the entire prosecution story, even if taken at its face value, does not disclose the commission of any cognizable offence and is nothing but a colourable attempt to give a criminal hue to a purely civil dispute arising out of an alleged agreement to sell. He contends that the relationship between the parties emanates from a contractual transaction dated 12.04.2015, and the allegations, at best, pertain to non-performance of contractual obligations, for which the appropriate remedy lies in a civil suit for specific performance and not in initiating criminal proceedings for cheating. He further submits that the complainant has failed to demonstrate her readiness and willingness to perform her part of the contract, which is a sine qua non for enforcement of an agreement to sell. It is argued that after an inordinate and unexplained delay of more than ten years, the complainant has resorted to filing a complaint before the authorities only to overcome the bar of limitation applicable to civil remedies. Such belated initiation of criminal proceedings, without any contemporaneous grievance, clearly indicates mala fide intention and abuse of the process of law.

4. It is also contended by Mr. Shrivastava that prior to the registration of the FIR, the petitioner himself had approached the police authorities regarding the dispute, wherein the matter was treated as civil in nature, and proceedings under Section 174 of the BNS were initiated. Ignoring this aspect, the police, on administrative directions, proceeded to register the FIR without proper application of mind, thereby vitiating the entire criminal proceedings. He further argues that there is no material collected during investigation to substantiate the essential ingredients of the offence of cheating, particularly the element of dishonest intention at the inception of the transaction. On the contrary, the revenue records continue to reflect the petitioner as the lawful owner and title holder of the land, and there is no conclusive evidence to establish that the property has been transferred to any third party. Mere receipt of advance consideration or execution of an agreement to sell does not confer any title upon the complainant. It is lastly urged that continuation of the criminal proceedings would amount to abuse of the process of Court, and therefore, this Court may exercise its inherent jurisdiction to quash the FIR as well as the consequential charge-sheet and proceedings pending before the learned Magistrate.

5. On the other hand, Ms. Vaishali Mahilong, learned State counsel opposes the pe