Failure to fulfill an agreement does not constitute cheating under Section 420 IPC unless fraudulent intent is proven.

O R D E R

This Criminal Miscellaneous case is filed to quash the proceedings in CC No. 867/2018 on the file of the Judicial First Class Magistrate Court, Payyannur arising from Crime No. 1634/2014 of Payyannur Police Station. The above case is charge-sheeted by the police alleging offence punishable under Sec.420 IPC .

2. The prosecution case is that on 08.08.2011, the accused persuaded the defacto complainant to invest money in her real estate business on the promise to get profit and accordingly, on believing the words, the defacto complainant paid Rs.26,15,000/- on agreement and later, the accused resiled from the agreement, thereby cheated the defacto complainant. The defacto complainant filed a private complaint with the above allegation before the Judicial First Class Magistrate Court, Payyannur and the learned Magistrate forwarded the same to the police under Sec. 156(3) Cr.P.C. Consequently, Crime No. 1634/2014 was registered by the Payyannur Police as evident by Annexure- A1 FIR. Subsequently, the final report is filed as evident by Annexure-A2. According to the petitioner, even if the entire allegations are accepted, no offence is alleged. Hence, this Criminal Miscellaneous case is filed.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I also heard the learned counsel appearing for the 2nd respondent.

4. According to the petitioner, he is in fact, a lawyer practicing at Payyannur and the defacto complainant was working as a UD Clerk, IVth Battalion, AR Camp, Mangattuparamba, Kannur. According to the petitioner, he was instrumental to settle several family issues of the defacto complainant and they have jointly decided to purchase an item of property having 25 cents in Resurvey No. 87/9 of Kunhimangalam Village, Payyannur Sub Division from Koyileri Bhaskaran and Kavoottan Janaki, the legal heirs of Velluva Damodharan. Accordingly, an agreement dated 24.03.2011 has been executed by the vendors in favour of the petitioner, agreeing to execute the sale deed within three months. Since, the defacto complainant is a Government employee, she requested not to show her name in the agreement because of some difficulty in connection with her employment. The petitioner and the defacto complainant jointly paid an amount of Rs.28,00,000/- on various occasions to the vendors of the property, is the submission. The petitioner produced Annexure-A4 agreement to show the transaction. When steps for executing the sale deed was in progress, it was noticed that an attachment has been effected in OS No. 45/2011 by the Munsiff Court, Payyannur in a money suit instituted by one Muraleedharan against the property shown in Annexure-A4 is the further submission. Therefore, the sale deed could not be executed and later, it is made known that the attachment was lifted, is the further submission. It is further submitted by the petitioner that the property was originally purchased for constructing two residential buildings in it, one for the petitioner and another for the defacto complainant. Subsequently, it is understood that the property is not habitable and is adjacent to a 'Sarpakavu'. Therefore, both the petitioner and the defacto complainant decided to re-sale the property to third party for which the vendors are ready on any condition as they have already received the entire sale consideration. But nobody turned up is the further submission. Therefore, the defacto complainant asked to execute an agreement in her favour agreeing to pay the amount with profit of Rs.32,00,000/- which the petitioner executed, it is stated by the petitioner. Annexure-A5 is the hand-