Naeem Ullah Khan vs Smt. Dr. Kumkum Leela

N.K. Gupta, J.—Heard the learned counsel for the parties finally. By the present petition u/s 482 of Cr.P.C. applicants have challenged the order dated 9.4.2012 passed by the learned JMFC, Bairasia District Bhopal in Criminal Case No. 216/2012 whereby the case was registered u/s 420 of IPC against the applicants.

The brief facts of the case are that the complainant/respondent and the applicants entered into a contract for sale of 91 acres of land. A sale deed was executed for 15 acres of land and for remaining 81 acres of land a dispute was initiated. The applicants gave a notice on 11.3.2010 through their Advocate Sayyed Salmal Alvi that remaining payment be made within the stipulated period otherwise applicants would be free to sell the land to someone else. The respondent also gave a reply to the notice. Thereafter the land was sold to someone else, therefore the respondent/complainant had lodged a criminal complaint against the applicants and the purchaser of the land. However, the trial Court vide order dated 9.4.2012 registered the criminal case against the applicants only whereas the remaining accused persons No. 5 to 7 were discharged.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the complainant could not establish that any cheating was done with the complainant prima facie by the present applicants. For proving the case of cheating, there should be some wrongful gain to the accused and wrongful lose caused to the complainant. It was a case of civil transaction and the applicants have given a notice for payment of remaining land and it was also informed to the complainant that if payment is not made within the stipulated period, then the land may be sold to someone else. After warning the complainant, the land was sold, and therefore it cannot be said that any wrongful lose was caused to the complainant. It is alleged by the learned counsel for the respondent that a reply to the notice was given. However that action of the respondent is not under question. Conduct of the applicants is under question that whether the applicants acted in a criminal manner. However, the respondent did not make any payment thereafter. If the complainant was interested to fulfill the contract, then she would have paid the remaining sum within the stipulated period. Under such circumstances, the entire transaction is nothing but a civil transaction. No element of cheating is visible in the transaction. The learned JMFC has wrongly registered the case against the applicants u/s 420 of IPC. Looking to the perversity in the impugned order, it is a fit case in which inherent powers u/s 482 of Cr.P.C. may be invoked. Consequently, the present petition filed by the applicants u/s 482 of Cr.P.C. is hereby allowed. The impugned order dated 9.4.2012 passed by the learned JMFC Bairasia is hereby set aside. The proceeding against the applicants is also quashed. A copy of this order be sent to the trial court for information.