The court determined that the petitioner did not commit cheating against the respondent, despite selling the property to a third party, thus leading to the dismissal of the recall application.

Order

20/05/2025 Matter comes upon an application filed by respondent No.2 wherein prayer has been made for recalling of the order dated 02.05.2025. It is contended by learned counsel for the respondent No. 2 that the petitioner concealed the fact that the said plot has already been sold through registered sale deed dated 17.02.2025 and petitioner has created third party interest and cheated the respondent No. 2.Thus, it clearly reveals that before passing of the stay order dated 02.05.2025, the disputed property has already been sold therefore on the basis of concealment of facts the order dated 02.05.2025 may be recalled.

It is contended by learned counsel for the petitioner that due to FIR lodged against the petitioner, clear instructions could not be sought. Even if it is considered that the said property has been sold to the third party then also the offence of cheating is not made out against the petitioner. Respondent No. 2 has already submitted a civil suit for specific performance of agreement dated 28.01.2020. It is contended that the respondent No. 2 filed the suit for specific performance after a delay of almost five years and never pressed for specific performance.

Learned counsel for the petitioner placed reliance upon the judgment of Ganesh Dan Vs. State of Rajasthan and Another passed in SB Criminal Misc Petition No. 2654/2011 decided on

19.03.2012 in which it is held that:-

“14.When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration.

But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code”

Heard and perused the material available on the record.

It is apparent from the facts of the present petition that agreement to sale with the respondent No. 2 was executed way back in the year 2020. The petitioner did not deceive the respondent either by making a false or misleading representation or by any other act or omission. It is not a case of respondent No. 2 that petitioner has offered him any fraudulent or dishonest inducement to deliver the disputed property or intentionally induce him to do or omit to do anything which he would not do or omit. The subsequent transfer of property through sale deed in the favour of third party may be cheating against the third party but certainly not against the respondent No. 2. The case may fall in the category of breach of promise or we may call that petitioner has not performed his duty for which a suit for specific performance against the petitioner is pending. Such relief can be granted to the respondent if the respondent establish that the petitioner willfully did not get the property registered in his name, though the respondent was rea