JUDGMENT :

Hon’ble Mr. Alok Mahra, J.

The present application under Section 482Cr.P.C. has been filed to quash the impugned judgment and order dated 27.03.2017 passed by the learned 2nd Additional District & Sessions Judge, Nainital in Criminal Revision No. 93 of 2016 (Harish Chandra Gururani vs. Anoop Agarwal & Another), and the cognizance/ summoning order dated 02.08.2016 passed by the learned 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Nainital in Criminal Case No. 616 of 2016, whereby summons were issued to the applicant under Sections 420 & 421 IPC as well as to quash the entire proceedings of the said criminal case.

2. Brief facts of the case, as per record, are that on 15.09.2012, the respondent no.1 purchased residential land from the applicant by registered sale deed for Rs. 13,00,000/- through a bank draft drawn on Allahabad Bank, Pilibhit Branch; that, about two months before filing the complaint, while preparing to develop the property, respondent no.1 allegedly discovered that the land purchased was recorded as agricultural land and the measurement of the house thereon was less than represented; and Extra stamp duty was payable on the purchase. Based on these allegations, respondent no.1 filed a complaint before the Magistrate, who recorded statements under Section 200 Cr.P.C., considered oral and documentary evidence, and found a prima facie case under Sections 420 & 421 IPC; that, being aggrieved by the same, the applicant filed a Criminal Revision No. 93 of 2016, which was partly allowed by the learned 2^nd Additional District & Sessions Judge, Nainital, whereby the summoning under Section 421 IPC has been quashed but upheld the order under Section 420 IPC. Hence, this application.

3. Learned senior counsel for the applicant would submit that respondent no.1 had earlier complained to the SSP, Nainital. On inquiry, the Circle Officer found no criminal ingredients and recommended no police action; that, the respondent, an educated person, inspected the property and examined the khatoni prior to purchase; that, the applicant had clearly informed him that the building map had not been sanctioned; that, the sale was effected after respondent’s full satisfaction as to nature and area.

4. Learned senior counsel for the applicant would submit that the complaint contains no allegation of fraudulent or dishonest intention from the inception of the transaction, which is sine qua non for Section 420 IPC; that, at best, the dispute is civil in nature regarding sale/purchase and measurement, therefore, the entire criminal proceedings is unsustainable in the eyes of law. In support of his case, he relied upon the judgment in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, wherein Hon’ble Apex Court has held that summoning an accused is a serious matter requiring judicial application of mind. He also relied upon the judgment of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 wherein the Hon’ble Apex Court has held that quashing permissible where allegations do not disclose essential ingredients of the offence. He also relied the judgment of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, wherein the Apex Court has held that Section 482 Cr.P.C. powers to be used to prevent abuse of process and secure ends of justice.

5. Per contra, learned counsel for respondent no. 1 vehemently opposed the submissions advanced on behalf of the applicant and contended that there are specific allegations against the applicant pertaining to fraud and cheating. Therefore, the offence under Section 420 I.P.C. is clearly made out. It was further submitted that the grounds urged by the applicant involve disputed questions of fact and issues relating to evidence, which cannot be adjudicated while exercising jurisdiction under Section 482 Cr.P.C., and are matters to be examined and decided during the course of trial.

6. Heard learned counsel for the parties and perused the material available on