The Judgment of the Court was delivered by

Mohammad Rafiq, J.:— This revision petition has been filed by petitioner Gopal Sharma assailing order dated 05.08.1995 of Additional Civil Judge (Junior Division) & Judicial Magistrate No. 13, Jaipur City, Jaipur, in Criminal Case No. 2318/1994, whereby charge was framed against petitioner for offence under Sections 420 and 447 of Indian Penal Code.

2. Shorn of unnecessary details, factual matrix of case is that one Manmohan lodged a report at Police Station Mansarovar, Jaipur on 24.08.1994 in connection with alleged occurrence which took place between years 1981 and 1983. As per case of complainant, there was land of Khasra No. 251/281 measuring 37 bighas and 14 biswas in village Devari situated at Gopalpura Road. On 30.04.1981 an agreement to sale was executed between petitioner, in capacity of Secretary, National Housing Cooperative Society Limited, Jaipur, and complainants Manmohan, Motilal, Praveen and Rikhab Chand Pungaliya. It was agreed that the amount of Rs. 15,000/- per bigha will be paid and thus total amount of Rs. 5,65,500/- will be paid as sale consideration. It was also mentioned that Manmohan, Motilal and Praveen were having half share and Rikhab Chand Pungaliya was having another half share in the land. As per agreement, petitioner had to make payment of Rs. 2,82,750/- i.e half amount of total amount to complainant party. At the time of agreement, Rs. 5000/- was paid as advance towards the purchase. It was decided to make payment of total amount divided in two installments within four months and if amount will not be paid, the advance amount or any amount which has been paid, will be forfeited. It was also decided that the possession will be given to the society after receipt of full amount but the Secretary of the Society dispossessed them and took possession of the land and divided the plots in that land. It was mentioned that the full amount has not been paid and as per the condition of agreement, the agreement has already come to an end. Cheques were given to the complainant. One cheque No. 982526 for Rs. 1,00,000/- was given on 31.3.1982 after putting the date intentionally of 31.03.1981 When this cheque was deposited in the bank for clearance on 01.04.1982 then it was referred to drawer meaning thereby that there was no money in the bank. Afterwards, three cheques were given in lieu of one cheque of Rs. 1,00,000/- for a sum of Rs. 30,000/-, Rs. 35,000/- and Rs. 35,000/-, respectively. Out of these three cheques one cheque No. 965208 dated 31.07.1983 for Rs. 35,000/- was drawn on Bank of Rajasthan Limited, Kishanpole Bazar, Jaipur. Intentionally, there was the overwriting made on the date and thus the cheque was left incomplete. Due to this reason, the cheque was returned from the Bank. The complainant party gave notice to the Society but the Society did not take any action. It was also mentioned that complaint was made in the Camp. But, neither Society has contacted them nor any amount has been paid. The Society has got no legal right over this land and took possession over the land without making payment. The Society issued ‘patta’ to its members after taking unauthorized possession and raised construction unauthorizedly. It was mentioned that Gopal Sharma is having possession over the land as a trespasser and the possession is unauthorized, which was done with intention to cheat. The police on the basis of this information registered the case at Police Station Mansarovar at No. 259/1994 under Sections 420 and 447 of the Indian Penal Code.

3. That police after investigation filed challan against accused-petitioner for offence under Sections 420 and 447 of the IPC on 05.12.1994 Impugned order dated 05.08.1995 of framing charge against petitioner is assailed in present revision petition.

4. Shri A.K Gupta, learned counsel for petitioner, has argued that even if contents of first information report are accepted in its entirety, as per law enunciated by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604, prosecution against petitioner deserves to be thrown out. Learned counsel submitted that police in present case has not undertaken any investigation and has mechanically filed challan against accused-petitioner and so also learned trial court mechanically passed order of framing charge. Learned counsel referring from order of framing charge argued that this order does not at all show application of mind on any of arguments advanced by petitioner and noticed in the order. Shri A.K Gupta, learned counsel for petitioner, has further argued that a civil dispute has been given shape of a criminal case only with a view to harassing petitioner and pressurizing him into submitting to ulterior designs and illegal demands of complainant. Agreement to sale was admittedly executed in year 1981. Initially a cheque of Rs. 1,00,000/-, that was signed by petitioner when he was Secretary of Cooperative Society, was given on 31.03.1981 but it was presented by complainant to bank for payment on 1st April, 1982. This cheque was referred to drawer and it was bound to be so because cheque had become time barred and could not be honoured. Even according to complainant, it was then agreed upon between the parties and acting thereon the Cooperative Society gave three cheques to complainant; one of Rs. 30,000/- and two of Rs. 35,000/- each. While first two cheques were honoured, dispute arose when third cheque dated 31.07.1983 of Rs. 35,000/- was not honoured by bank, not because of insufficiency of funds but on account of alteration/overwriting in the date. That alteration in date/figures required signature and that cheque was incomplete. Surprisingly learned trial court, despite being specifically argued that petitioner was not office-bearer of the Cooperative Society, did not record any finding in this regard. These three subsequent cheques including disputed cheque dated 31.07.1983 were given later on and that those cheques have been signed by the then Secretary of Cooperative Society Shri G.N Sharma and Vice-President Shri Bhanwar Singh and not by petitioner. Neither Investigating Agency nor learned trial court despite such arguments being specifically raised, considered this aspect of the matter.

5. Learned counsel invited attention of this court towards statement recorded under Section 161 Cr. P.C of four witnesses, namely, Manmohan, Motilal, Praveen and Rikhab Chand Pungaliya, who are four partners/owners of disputed land and, argued that even as per their statements, the dispute was with regard to last cheque dated 31.07.1983 In fact, learned counsel argued that Motilal and Praveen, in their statements, admitted the fact that out of three cheques, only one cheque dated 31.07.1983 of Rs. 35,000/- was not honoured by bank and thereafter complainant served upon Cooperative society legal notices time and again and when they did not receive payment, were constrained to file complaint.

6. Learned counsel argued that admittedly in this case, with regard to an agreement to sale executed on 30.04.1981 and dishonouring of cheque dated 31.07.1983, first information report had been belatedly lodged on 14.08.1994 i.e 11 years after date of dishonouring of cheque. It was so because by that time complainant had lost limitation to avail remedy before civil court and then chose to blackmail petitioner by initiating against him remedy under criminal law. Learned trial court completely failed to consider as to how for fifteen years no steps were taken by complainants if their land was forcibly taken possession of whereas fact was that possession of land was voluntarily given by complainant to Cooperative Society and Society had thereafter allotted land to its members, who were already in possession of such plots for quite sometime when first information report was lodged. Therefore, no offence whatsoever was committed, either of cheating under Sections 420 IPC or even of trespass under Section 447 IPC. Nothing has been specified as to how accused-petitioner was given possession and which part of the land was forcibly taken possession of by him. There was no evidence whatsoever of any forcible trespass by any of office-bearers of Cooperative Society. So far as accused-petitioner is concerned, he in any case was not an office bearer when last cheque was dishonoured by bank.

7. Shri A.K Gupta, learned counsel for petitioner, in support of his argument, has relied on judgments of Supreme Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : AIR 2008 SC 251, Indian Oil Corporation v. NEPC India Limited, (2006) 6 SCC 736 : AIR 2006 SC 2780 : RLW 2006 (4) SC 3380 and Suresh v. Mahadevappa Shivappa Danannava, JT 2005 (2) SC 462.

8. On other hand, Shri Piyush Kumar, learned Public Prosecutor opposed the revision petition and argued that initially cheque dated 31.3.1981 of Rs. 1,00,000/- was signed by petitioner in the capacity of Secretary of Cooperative Society with Vice president Bhanwar Singh. When that cheque was dishonoured, it was only in lieu thereof that subsequent three cheques were given. The property in dispute was illegally encroached upon by petitioner and then alloted to members of Cooperative Society whereas owner of land had not received full payment. Learned trial court was justified in framing charge for offence under Secs. 420 and 447 of the IPC because prima facie those offences were found to have been involved on the basis of evidence of witnesses Manmohan, Motilal, Praveen and Rikhab Chand Pungaliya, recorded under Sec. 161 Cr. P.C What was required at the stage of framing of charge was that there should be prima facie evidence to support the charge and such evidence could be read into statement of those witnesses. Learned trial court was not expected to enter into a detailed discussion of evidence because at the stage of framing of charge, it is not expected to marshal and shift the evidence and give a definite finding either way. Learned Public Prosecutor therefore prayed that revision petition may be dismissed.

9. I have given my anxious consideration to rival submissions and scanned available record.

10. Before, however, proceeding to examine merits of the case, a brief resume of relevant case law can be had.

11. In Inder Mohan Goswami, supra, dispute was with regard to cancellation of agreement to sale of a property wherefore criminal proceedings under Sections 420, 120B and 467 IPC were initiated against vendor. Recourse to such proceedings by private vendetta was held to be an abuse of process of court and it was held by Supreme Court that high court must ensure that criminal proceedings are not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize accused. The intention was held to be an essential ingredient of cheating. It has to be shown that accused had fraudulent or dishonest intention at the time of making promise. Even if promissory could not keep his promise, it cannot give rise to a presumption that he had a culpable intention to break promise from beginning.

12. In Indian Oil Corporation, supra, the Apex Court deprecated tendency of converting purely civil dispute into criminal case. In Suresh, supra, also the accused had executed an agreement to sale in respect of a property in favour of wife of complainant. Certain amount was advanced out of total sale consideration and remaining amount was agreed to be paid at the time of registration of sale-deed. It was alleged that complainant approached accused-persons several times for possession of the said premises and expressed his readiness to repay balance consideration but they failed to discharge their obligation of the contract. A legal notice was issued by the complainant calling upon accused-persons to execute sale deed, to which reply was sent by the latter denying the very existence of the agreement to sale or receiving advance amount from the complainant or his wife. It was held by the Supreme Court that initiation of criminal proceedings for offence under Section 420 IPC, after eleven-and-a-half year from the date of alleged offence was not maintainable. Although it was also held even on facts, the complaint did not disclose ingredients of Section 415 IPC because the fraudulent or dishonest intention has to be shown at the time of making the promise.

13. In Dalip Kumar v. Jagnar Singh — (2009) 14 SCC 696, it was held by the Apex Court that ingredients of fraudulent and dishonest intention was a necessary ingredient of the offence of cheating which must exist from the very beginning when promise or representation was made. Mere non-refund of amount of advance which results in simply a breach of contract, does not constitute cheating or criminal breach of trust. The first information report was quashed.

14. In Mohammad Ibrahim v. State of Bihar — (2009) 8 SCC 751, Supreme Court deprecated tendency of filing of criminal complaint of dispute which are essentially of civil nature. It was observed that criminal courts have a duty to cheque abuse of process and ensure that criminal proceedings are not initiated for settling civil disputes or for pressurizing parties to settle such disputes.

15. In V.Y Jose v. State of Gujarat — (2009) 3 SCC 78, the Supreme Court observed that a matter which essentially involves dispute of civil nature should not be allowed to be the subject-matter of criminal offence, and the party cannot be allowed to resort a short cut to an execution of an non-existence degree. It was observed that in the absence of fraudulent, dishonest or culpable intention at the time of making initial promise, offence under Section 420 IPC would not be attracted. Mere breach of contract does not make out an offence of cheating.

16. Coming now to merits of the case, no doubt, trial court at the stage of framing of charge is not expected to either shift or marshal the evidence at the same time, but at the same time it is also not expected from it to mechanically frame charge or draw order of framing charge with applying its mind to material on record. What is evident from impugned order and which is disturbing to notice is that learned trial court in present case despite having noticed detailed arguments in first three pages, which have been canvased again before this court, did not at all consider any of those arguments; although in doing so it had absolute freedom of either agreeing with those arguments or rejecting them for any reason which in its wisdom it would have thought appropriate to assign. While first three pages of charge order only contains arguments of petitioner and in last page, which consists of two paragraphs, first para enumerates arguments of Public Prosecutor and learned trial court has hurriedly recorded its opinion as to prima facie satisfaction for framing of charge, and in second last para running into just four and half line. And even in doing so, it merely did the ritual of giving names of above referred four witnesses, whose statements were recorded under Section 161 Cr. P.C and did no more. But then, this order was passed way back on 05.08.1995 with regard to first information report lodged on 14.08.1994 relating to an incident which took place in the year 1983. It is therefore not considered appropriate to remand this matter only for that reason. This court therefore proceeds to examine the matter on merits so as to find out whether or not there was any justification for framing of charge for offences under Sections 420 and 447 IPC on the basis of evidence available on record.

17. What is not in dispute is the fact that parties had entered into agreement with each other on 30.04.1981 whereby complainant Manmohan and others had agreed to sell his agriculture land to National Housing Cooperative Society Limited, Jaipur at rate of 1500/- per bigha for a total sale consideration of Rs. 5,65,500/-. As per stipulation contained in agreement, Manmohan, Motilal and Praveen were having half share whereas remaining half share was with Rikhab Chand Pungaliya. Petitioner had to make payment of Rs. 2,82,750/- to complainant and a sum of Rs. 5000/- was paid as advance. It was agreed that total payment shall be made in two installments within four months and that possession would be given after receipt of full amount. But despite that, as appears from contention of parties, possession was taken over and land was subdivided into several plots and onwards allotment was made to members of Cooperative Society, which were then put in possession thereof. What is also evident is that when office-bearers of Cooperative Society failed to make payment in terms of agreement, parties further agreed to extend time for making payment and pursuant thereto, complainant accepted remaining amount of Rs. 1,00,0000/- by cheque dated 31.03.1981 and when that cheque was presented with delay and was dishonoured, they further agreed to make payment by three new cheques, out of which two cheques of Rs. 30,000/- and Rs. 35,000/- each were honoured by the bank but last cheque dated 31.07.1983 of Rs. 35,000/- was dishonoured not because of insufficiency of fund but for the reasons of certain alterations therein not being signed. What is also evident is the fact that more than thirteen years had already gone by from the date of above referred agreement to sale when the first information report was lodged on 14.08.1994 In first information report, complainant had admitted that Cooperative Society has made allotment of land and further subdivided it into plots and made allotment of said plots to its members and further that members have been put in possession of such plots. This then clearly show that one of partners namely Praveen has in his statement under Section 161 Cr. P.C stated that they in meantime served number of legal notices on Cooperative Society and its office bearers. Time period of thirteen years had lapsed between date of agreement to sale and date when first information report was lodged. Significantly, possession of the land had been parted with long ago then itself. This clearly show that complainant had already lost limitation for availing civil remedy and which is why apparently he has chosen to arm-twist petitioner by initiating criminal prosecution against him.

18. Evidently in this matter, there is no case of cheating because as per definition of cheating given under Sections 415 of the IPC, there has to be an intention of cheating and it has to be shown that accused had fraudulent or dishonest intention at the time of making promise. Mere fact that promissory could not keep his promise cannot give rise to a presumption that he all along had a culpable intention to break promise from beginning. In present case, it is not the petitioner but his successor office-bearers of Cooperative Society, who failed to timely make payment and thus the alleged act would not fall into an offence of cheating.

19. Nature of dispute and transaction between parties and resultant failure of one of the parties to comply with terms of agreement, viz., to make complete payment or make delayed payment, is essentially a civil dispute and this civil dispute has been given colour of an alleged offence that complainants were cheated by petitioner. But then in order to prove offence of cheating, complainant has to show that accused had intention of cheating when they initially entered with agreement to sale with him. The agreement to sale was substantially acted upon not only by office bearers of Cooperative Society including petitioner herein but also by complainants which is evident from their conduct that last installment of Rs. 35,000/- was timely received by them and that this explains why he parted with such possession. Argument developed after lapse of more than thirteen years that possession was forcibly taken over or that accused-petitioner alone trespassed over land, does not inspire confidence because what is also simultaneously maintained is that Cooperative Society had subdivided land into various plots and allotted the same to its members who were put in possession thereof. In this nature of case, this court ought to exercise its extraordinary power under Section 482 Cr. P.C to prevent abuse of process of court and now in the present case, those very powers can be exercised by this court so as to examine correctness, legality and propriety of impugned order framing charge because powers of High Court under those provisions are substantially akin to each other and may be, to some extent, over-lapping. Law enunciated by Supreme Court with reference to provisions of Section 482 Cr. P.C can therefore be also applied to proceedings under Section 397 Cr. P.C

20. In view of what has been discussed, impugned order dated 05.08.1995 framing charge against the petitioner for offence under Sections 420 and 447 IPC passed by learned trial court, cannot be allowed to sustain. It is accordingly set aside. Accused-petitioner is discharged of alleged offences.

21. Petition stands allowed accordingly.