Ingredients of cheating under IPC not established where prior agreement was validly canceled before a new one.

1. This petition under S.482 of the Cr.P.C. has been filed by the accused challenging the order taking cognizance dated 06.09.2011 on a private complaint filed by complainant for the offence punishable under S.420 of the IPC and issuing the summons by JMFC, Bhopal in R.T. No. 7977/2012. It is also prayed that the complaint filed by respondent No.2 may be quashed.

2. The facts unfolded to file present petition are, land of Khasra Nos. 101, 102, 108, 109 and 99/6 having area of 2.02 hectare, 1.20 hectare, 0.82 hectare, 0.81 hectare, total area 4.85 hectare and 0.07 Acre 32x100 sq.ft. adjacent to main road of village Chhapri, Patwari Halka No. 32 of Tehsil Huzur, District Bhopal is owned by petitioner No.1, Panchamlal and Smt. Chandrawati who agreed to sale the said land to one Harnath Singh, to which they entered into an agreement dated 15.1.2007 for a sum of Rs.2,07,00,000/-. In furtherance to the said agreement, an amount of Rs.1,00,000/- was paid and the remaining part of the amount was agreed to pay on or before 15.3.2007. As per the terms of the agreement, cheque of Rs.1,00,000/- of Standard Chartered Bank given by Hamath, was dishonoured. He gave a notice on 6.2.2007 to the seller, to return the said cheque and take the amount in cash or through DD, however, the sale - deed may be possibly executed prior to the outer date i.e. 15.3.2007. On 14.2.2007, Harnath again gave a notice to petitioner No. 3 (power of attorney holder) mentioning the same fact and making further request for measurement of the land in question. Petitioner No. 1 and other sellers gave its reply to the notice stating that on account of non - compliance of the terms of the agreement and issuing the notice unnecessarily, the agreement dated 15.1.2007 is automatically cancelled and the notice send by him is based on absolutely false and baseless allegation. In the agreement to sale, one Mukesh Shrivastava was the witness, who in fact was a middleman (broker). After giving reply to the said notice and cancellling the agreement, petitioners, Chandrawati and Panchamlal have entered into an agreement with complainant Hemant Raghuvanshi on 31.3.2007 for the same property for the sale consideration of Rs. 2,53,47,000/- and Rs. 10,00,000/- was paid by them by way of advance to the petitioners. The complainant published a public notice in the newspaper regarding purchase of the said land on which Harnath Singh submitted his objection stating that agreement to sale was executed earlier with him on 15.1.2007. However, on receiving the said objection, notice was given by complainant on 3.5.2007 Annexure P - 16 to petitioners and other seller making a request that dispute with Hamath may be settled under intimation to them, otherwise he may not be in a position to make the payment of the remaining amount of consideration. Reply to the said notice was given by the petitioners on 13.6.2007 contending that complainant has not complied the terms of the agreement regarding payment of remaining amount of consideration, therefore, it is cancelled and amount of Rs.10,00,000/- paid by him in advance, is hereby returned to them through cheque, which may kindly be acknowledged under intimation to the petitioners. A copy of the notice given to the complainant alongwith the cheque has also been filed.

3. It is also known that Harnath Singh filed a suit seeking declaration for unilateral cancellation of his agreement to sell and the property in question cannot be sold by the petitioners to any other pers