Bala Krishna Narayana, J.:— Heard Sri Gaurav Kakkar, learned counsel for the petitioners, Sri Anoop Trivedi and Sri Kapil Tyagi, learned counsel for the respondent no. 2 and learned A.G.A for the State.

This writ petition is directed against the order dated 5.6.2010 passed by Chief Judicial Magistrate, Gautam Budh Nagar (annexure no. 17) rejecting the final report submitted by the Investigating Officer in Case Crime No. 563 of 2009 under Sections 420, 467, 468, 471, 406 I.P.C and further taking cognizance against the petitioners under Sections 190(1)(b) Cr.P.C and summoning them to face trial for the offences punishable under Sections 406 and 420 I.P.C and the judgment dated 4.12.2010 passed by learned Sessions Judge, Gautam Budh Nagar (annexure no. 19) dismissing the Criminal Revision No. 108 of 2010 filed by the petitioners against the order of the Chief Judicial Magistrate dated 5.6.2010

The relevant facts, which are necessary for the disposal of this writ petition briefly stated are that the complainant Arun Bhandari, a NRI residing in Germany had lodged an FIR against the petitioners on 17.8.2009 disclosing therein that he was willing to purchase a residential plot in Greater Noida. He came in touch with petitioner no. 1 Raghuvendra Singh who offered him to sell the plot in question for a consideration of Rs. 2,43,97,880/-. This offer was accepted by the complainant. Petitioner Raghuvendra also placed before the complainant, a registered agreement to sell in connection with the said plot executed in his favour by the original allottee Smt. Vandana Bhardwaj. The complainant, believing the petitioner no. 1 agreed to purchase the plot and paid Rs. 1,05,00,000/- as earnest money to him. It was agreed upon between the complainant and petitioner no. 1 that the sale deed will be executed in favour of the complainant within a period of 45 days after obtaining possession of the plot by the original allottee from the Greater Noida Authority. The complainant enquired from the petitioner no. 1 about the progress of delivery of possession to the original allottee, but he gave conflicting statements which created doubts in the mind of the complainant, therefore, he rushed to India and enquired from the office of the Greater Noida Authority. Then, he came to know that petitioner no. 1 had got a registered agreement to sell from the original allottee in his favour, however, he concealed that he had also got a registered power of attorney from the original allottee in favour of his wife-petitioner no. 2. This fact was intentionally concealed from the complainant and ultimately revisionist no. 2, by virtue of the said power of attorney had already transferred and conveyed the plot in question to one Smt. Monika Goel and got her name mutated in the record of the Greater Noida Authority. Thus, the petitioners in a deceitful manner, had cheated the complainant of Rs. 1,05,00,000/- and had also committed breach of trust. The Investigating Officer however, submitted final report in the court of Chief Judicial Magistrate mentioning that the dispute was of a civil nature. The complainant, however, challenged the final report so submitted by the Investigating Officer by filing a protest petition and the same was up held and the final report was rejected and the court had taken cognizance against the petitioners under Section 190(1)(b) Cr.P.C and summoned them by his order dated 5.6.2010 for facing trial for offences punishable under Section 420 and 406 I.P.C Aggrieved from the order dated 5.6.2010, the petitioners preferred a revision before the Sessions Judge, Gautam Budh Nagar which was numbered as Criminal Revision NO. 108 of 2010 and dismissed by him by his judgment dated 4.12.2010 whereby the order passed by the Chief Judicial Magistrate was affirmed.

Learned counsel for the petitioners submitted that even if the entire allegations made in the FIR and the materials collected during investigation are taken in the in entirety and accepted to be true the same do not disclose any offence against the petitioners.

Learned counsel for the petitioners next submitted that as per the FIR version itself the petitioner no. 1 and the respondent no. 2 had entered into an unregistered contract for sell of the plot in question for which earnest money was paid by the respondent no. 2, to the petitioner no. 1 however, since the respondent no. 2 himself committed breach of terms and conditions of the agreement and failed to get the sale deed executed within the stipulated period the earnest money so paid by him to the petitioner no. 1 was forfeited and the petitioner no. 2 in the capacity of general attorney of the original allottee executed a sale deed in respect of the plot in question in favour of Smt. Monika Goel.

Learned counsel for the petitioner further submitted that the dispute if any between the parties as disclosed from the FIR and the case diary is purely of a civil nature and the remedy of the respondent no. 2 lies before the civil court and since petitioners have not committed any offence the Investigating Officer had rightly submitted the final report in the matter but the learned Magistrate however illegally took cognizance of the offence under Section 190(1)(b) Cr.P.C and summoned the petitioners.

Learned counsel for the petitioner next submitted that the respondent no. 2 had lodged the FIR against the petitioners as an instrument of harassment with the ulterior motive to pressurize the petitioner no. 1 to refund the earnest money received by him from the respondent no. 2, which stood forfeited in terms of the contract for sell executed between the petitioner no. 1 and the respondent no. 2.

Learned counsel for the petitioner also submitted that in any view of the matter the learned Chief Judicial Magistrate committed a patent error in rejecting the final report submitted in favour of the petitioner no. 2 who admittedly was neither party to the contract of sale between the petitioner no. 1 and the respondent no. 2 nor the recipient of any earnest money and hence, the summoning of the petitioner no. 2 by the CJM is a glaring example of the abuse of the process of the court.

Learned counsel for the lastly submitted that the failure of the revisional court to rectify the errors committed by the learned CJM has rendered the order of the revisional court also liable to set aside.

Per contra Sri Anoop Trivedi, learned counsel for the complainant-respondent no. 2 submitted that from the perusal of the material collected during the investigation including the statements recorded under Section 161 Cr.P.C it is apparent that the petitioners had fraudulent and dishonest intention even at the time of entering into the agreement. The petitioner no. 1 had concealed the fact that he had already got executed a general power of attorney in favour of petitioner no. 2 from the original allottee to sell, to convey and transfer the plot in question which he had agreed to sell to the respondent no. 2.

Sri Trivedi further submitted that while the petitioners are admitting having received Rs. 1,05,00,000/- as earnest money from the respondent no. 2 but they have failed to establish that the respondent no. 2 has committed any breach of the alleged terms and conditions of the agreement to sell entitling them to forfeit the earnest money.

Sri Trivedi next submitted that in the contract of sell the petitioner no. 1 had despite being fully aware of the fact that he was not the owner of the plot in question had described himself as the owner of the plot in question and thus, it cannot be said that the offence of cheating is not made out against him and the failure of the petitioner no. 2 to disclose to the respondent no. 2 that she held a general power of attorney to sell or alienate the plot in question demonstrated that she had conspired with her husband to cheat the respondent no. 2 and thereby inducing him to part with a sum of Rs. 1,05,00,000/- as earnest money to the petitioner no. 1.

Sri Trivedi next contended that even in a case of any breach of any agreement the person affected can recover damages and such remedy can be sought in a competent court of civil jurisdiction or forum but where the breach of agreement, if constitutes a criminal offence then the aggrieved person may take civil as well as criminal action both.

Sri Trivedi lastly contended that the court of CJM as well as the revisional court have concurrently held that prima facie the petitioners are liable to be summoned for facing trial for offences punishable under Sections 420, 406, I.P.C and since the orders passed by the courts below have not been demonstrated to suffer from any perversity or illegality apparent on the face of the record, no interference with the impugned orders is called for and the writ petition is liable to be dismissed.

I have very carefully examined the submissions advanced by the learned counsel for the parties and perused the impugned orders as well as the other materials brought on record.

It is undisputed fact that the petitioner no. 1 had agreed to sell the residential plot in question in favour of the respondent no. 2 and had received Rs. 1,05,00,000/- as earnest money from him. It is also not disputed that an unregistered agreement was executed between the petitioner no. 1 and the respondent no. 2 and as per the terms and conditions agreed upon between them sale deed was to be executed within a period of 45 days after the delivery of possession by the Greater Noida to the original allottee Smt. Vandana Bhardwaj. The original allottee had executed a registered agreement to sell in favour of the petitioner no. 1. Thus, although on the date of the execution of the agreement petitioner no. 1 had no right, title or interest in the plot in question, yet in the instrument of agreement to sell he described himself as the owner of the plot in question although at the relevant point of time he had no lawful right to transfer the said plot in favour of the respondent no. 2. The fact that the original allottee of the plot in question Smt. Vandana Bhardwaj had executed a registered power of attorney in favour of the petitioner no. 2 authorizing her to sell, transfer and convey the plot to any person of her choice was also concealed by him from the respondent no. 2. A huge amount of Rs. 1,05,00,000/- was received by the petitioner no. 1 from the respondent no. 2 as earnest money.

It is also undisputed that the petitioner no. 1 did not execute the sale deed in favour of the respondent no. 2 on the contrary he forfeited the earnest money on the pretext that the respondent no. 2 had failed to get the sale deed executed within the period stipulated in the contract of sale.

The question which arises is whether the instant case is one of a breach of contract simplicter or whether the action of the petitioners was a calculated device to cheat and defraud the respondent no. 2.

The ingredients to constitute a criminal breach of trust are (i) entrusting a person with property or dominion over the property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made touching the discharge of such trust.

The ingredients of an offence of cheating are that there should be fraudulent or dishonest inducement of a person by deceiving him; the person so deceived, should be induced to deliver any property to any person or to consent that any person shall retain any property; or the person so deceived, should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and the act and omission should be one which causes or is likely to cause damage or harm to the person induced. After going through the allegations made in the FIR and the evidence collected during investigation, in my opinion it cannot be said that the instant case is simpliciter a case of breach of contract not attracting any criminal liability as far as the petitioner no. 1 is concerned. The allegations made in the FIR against the petitioner no. 1 and the material collected during investigation indicate that there is prima facie case for trying him for the offences punishable under Sections 406 and 420 I.P.C and the Chief Judicial Magistrate did not commit any error in rejecting the final report against the petitioner no. 1 and to that extent the order passed by the revisional court also cannot be said to suffer from any illegality or infirmity warranting any interference by this Court. However, the same cannot be said to be true with regard to the petitioner no. 2.

From the perusal of the FIR as well as the materials collected investigation the only allegations which have come against the petitioner no. 2 are that she was present when the negotiations between the petitioner no. 1 and the respondent no. 2 with regard to the purchase of the plot in question were in progress and that she did not disclose to the respondent no. 2 that she held a registered power of attorney on behalf of the original allottee of the plot in question Smt. Vandana Bhardwaj to sell and alienate the plot in question and that she had after the petitioner no. 1 forfeited the sale consideration sold the plot in question to one Smt. Monika Goel. There being no no entrustment of any property by the respondent no. 2 to the petitioner no. 2 and further there being no privity of contract between him and the petitioner no. 2, the petitioner no. 2 was under no legal obligation to disclose to the respondent no. 2 that she held a registered power of attorney to sell and alienate the property in question executed in her favour by the original allottee of the plot in question and her non-disclosure of the aforementioned fact to respondent no. 2, cannot by any stretch of imagination be said to constitute an offence under Sections 420 or 406 I.P.C

In my opinion, the allegations against the petitioner no. 2 in the FIR and the evidence on record do not indicate the commission of any offence by the petitioner no. 2 and hence, the Chief Judicial Magistrate erred in rejecting the final report submitted in favour of the petitioner no. 2. The learned C.J.M summoned the petitioner no. 2 in a mechanical manner without making any effort to examine the accusations against her and without satisfying himself that whether from the perusal of the material on record any offence was disclosed against the petitioner no. 2. The revisional court also fell into the same error in affirming the order of the Chief Judicial Magistrate.

For the aforesaid reasons, the writ petition succeeds and is allowed in part. The order dated 5.6.2010 passed by the Chief Judicial Magistrate, Gautam Budh Nagar summoning the petitioner no. 2 under Section 406, 420 I.P.C (annexure no. 17) and judgment order dated 4.12.2010 passed by Sessions Judge, Gautam Budh Nagar (annexure no. 19) dismissing the revision of the petitioner no. 2 preferred by her against her summoning are quashed to the extent indicated hereinabove. However, the summoning of the petitioner no. 1 is maintained.