Judgment ( 1. ) THIS is a petition filed under Section 482 of Cr. PC for quashment of the proceedings of Complaint Case No. 445 of 2004 pending in the Court of Judicial magistrate First Class, Indore, wherein the petitioner is an accused and respondent herein is the complainant. ( 2. ) THE learned Trial Magistrate has registered a case for commission of offences under Sections 415,420 and 477 of the Penal Code and issued summons to the petitioner herein. Feeling aggrieved by the impugned order dated 16-2-05, petitioner has filed this petition. Respondent Sanghi Brothers, Indore (hereinafter referred to as the complainant) has filed a complaint against the petitioner (hereinafter referred to as the accused) wherein it has been stated that the accused in the month of November, 1988 contacted the complainant and pursued him to enter into a memorandum of understanding. The accused had told the complainant that his elder brother Surendrasingh is the owner of house No. A-9/29 Vasant vihar, New Delhi and had executed a Will in favour of the accused regarding the said house property. It was also stated that on the basis of the alleged Will accused is going to receive 55% of the ownership in the said house property. It was also informed that Ms. Jyoti Rathore d/o late Shri Surendra Singh has also filed a petition for getting the Letters of Administration before Delhi High Court on the basis of a Will dated 28-3-1996. The accused has also filed a petition before this Court for getting Probate Certificate that on the basis of Will dated 5-11-1984 executed in his favour he has 55% share in the said house property. At that time the accused with criminal intention and fraudulently for the purpose of deceiving the complainant withhold information regarding pendency of a civil suit which was filed in the Court Addl. District Judge, Alirajpur by his sister Ms. Rohini Kumari in which reliefs of declaration, partition and permanent injunction were claimed with regard to the whole property including the property situated at Alirajpur in which the accused was also a party and was continuously attending the proceedings. The another information was also withhold by the accused that Dilipsingh, Madhosingh and Vijaysingh were uncles of the accused also claiming shares in the properties of Late Surendra Singh as they are also legal representatives in the civil suit pending in the Court of Addl. The another information was also withhold by the accused that Dilipsingh, Madhosingh and Vijaysingh were uncles of the accused also claiming shares in the properties of Late Surendra Singh as they are also legal representatives in the civil suit pending in the Court of Addl. Distt. Judge, Alirajpur. ( 3. ) IT has also been averted in the complaint that Late Surendra Singh had also executed a Gift-deed which has been kept in the custody of A and Z grinsland Bank, Sansad Marg, New Delhi and was to be opened after the death of Surendra Singh. Accused was having full knowledge with regard to the execution of the Gift-deed, but, he withhold this fact also deliberately and intentionally at the time of entering into the Memorandum of Understanding with the complainant. ( 4. ) IT has been specifically averted in the complaint that accused had made false promise to the complainant that he has 55% share in the said house property of Vasant Vihar, New Delhi and in the property situated at Alirajpur. On the basis of all these inducement, he provoked complainant to enter into memorandum of Understanding with him and to pay Rs. 15,000/- per month to him for his personal expenses and to bear expenses on the security, maintenance etc. of the said house property of Vasant Vihar. The complainant was also asked to pay necessary expenses in the litigations which were pending in Delhi and M. P. High Courts. It was promised to the complainant that in case accused succeeds in getting 55% share in the house property of Vasant Vihar, the same would be sold to the complainant for a consideration of Rs. 2. 05 crores and out of the same amount, the amount already incurred in maintenance and security of the house property of Vasant Vihar would be adjusted. It was also agreed that the amount incurred in litigations, shall be treated as loan advanced to the accused by the complainant and shall be treated payment as consideration of the house property. ( 5. ) IT has further been averted in the complaint that on the basis of memorandum of Understanding signed by both parties on 2-12-1988 and which was also an agreement of sale of the house property, the complainant started paying Rs. 15,000/- to the accused to meet the expenses mentioned above, and till date of filing the complaint, Rs. ( 5. ) IT has further been averted in the complaint that on the basis of memorandum of Understanding signed by both parties on 2-12-1988 and which was also an agreement of sale of the house property, the complainant started paying Rs. 15,000/- to the accused to meet the expenses mentioned above, and till date of filing the complaint, Rs. 20,79,049/- were paid by him to the accused. ( 6. ) IT has also been averted that if accused would have informed the complainant regarding pendency of the litigation in Alirajpur Court and regarding Gift deed executed by Late Surendra Singh, the Memorandum of understanding would not have been entered into by the complainant. Because in the Memorandum of Understanding it has also been agreed between the parties that accused shall not sale, mortgage, charge, gift or transfer or otherwise dispose of any of the property belonging to him in his individual capacity or comprised of his deceased elder brother including the said house property of vasant Vihar, New Delhi. Thus, there was also a charge over the individual property of the accused regarding which it was informed by him to the complainant that all the properties situated at Alirajpur are free from all encumbrances. ( 7. ) ON the basis of aforesaid averments, the complaint was filed against the accused. The complainant and his witness Navin Sachdeo, Manager of standard Chartered, New Delhi were examined under Sections 200 and 202 of cr. PC. The learned Trial Magistrate on the basis of averments made in the complaint and the statement of the said witness, directed to issue summons to the accused after registration of the complaint. ( 8. ) IN the present petition, it has been contended that the Trial magistrate without considering the actual facts, committed an error in passing the impugned order mechanically with regard to issuance of summons to the accused. It has also been contended that the allegations levelled against the accused in the complaint are totally false, fabricated and on the basis of alleged allegations, no prima facie case is made out against him. ( 9. ) IT has also been contended that one civil suit has also been filed by complainant before Delhi High Court bearing No. OCS 475 A/04 for Specific performance of Contract regarding the house property A-9/29, Vasant Vihar, new Delhi and in the alternative relief of money decree of Rs. ( 9. ) IT has also been contended that one civil suit has also been filed by complainant before Delhi High Court bearing No. OCS 475 A/04 for Specific performance of Contract regarding the house property A-9/29, Vasant Vihar, new Delhi and in the alternative relief of money decree of Rs. 20,79,049/-with interest was also sought and other reliefs have also been claimed in the said civil suit. The said suit was filed by the complainant prior to filing of this complaint. In the said suit no averments regarding fraud or cheating were made against the accused. Therefore the dispute between the parties is purely appears to be of civil nature and it can only be resolved by Civil Court. ( 10. ) IN turn, the accused has also filed a civil suit in Delhi Court against the complainant bearing No. OCS 709 A of 2004. Other proceedings regarding these civil suits are also pending in Delhi High Court. ( 11. ) APART from the aforesaid averments, other facts have also been averted to elaborate the above stated averments. ( 12. ) LEARNED Counsel appearing for accused has limited his arguments mainly on two grounds (i) that the civil suit is also pending between the parties and the nature of disputes existing between them parties is purely appears to be of civil nature and it can only be resolved by Civil Court, and (ii) that for the sake of arguments, all the allegations made in the complaint are presumed to be true, even then, no case is made out of fraud and cheating against the accused. ( 13. ) LEARNED Counsel for petitioner accused has drawn attention towards the Memorandum of Understanding which is available in the Trial courts record and submitted that in the said Memorandum almost all relevant facts have been disclosed by the accused. It has also been disclosed in very specific words that Probate petition has been filed on the basis of Will dated 5-11-1985 before High Court of M. P. bearing Case No. 329 of 96, which has been converted into COS No. 1 of 1998. It has also been clearly stated that Ms. It has also been disclosed in very specific words that Probate petition has been filed on the basis of Will dated 5-11-1985 before High Court of M. P. bearing Case No. 329 of 96, which has been converted into COS No. 1 of 1998. It has also been clearly stated that Ms. Jyoti Rathore has also filed the documents claimed to be a Will executed by Maharaja Surendra singh of Alirajpur on 28-3-1996 and on the basis of which she had filed a Probate application before Delhi High Court which has been challenged by the accused on grounds of fraud etc. Thus in this way information regarding all material with regard to pending litigations have been disclosed. ( 14. ) LEARNED Counsel for petitioner accused further contended that if information regarding a civil suit filed for partition has not been given at the time execution of Memorandum of Understanding because result of such civil suit makes no difference, as final order to be passed by High Court in Probate Case would be more important and affect the rights of the claimants and would be binding on Criminal Court also. In support of his contention he placed reliance on a judgment reported in the matter of Haridaya Ranjan Pd. Verma and others vs. State of Bihar and another [ air 2000 SC 2341 ] and contended that only on the basis of non-disclosure of the fact regarding a civil suit filed one of the brothers which was pending, it cannot be said that such information was not disclosed intentionally by the accused in order to make complainant part with the property and in the said case it was found that dishonest intention of the accused at the beginning of negotiations is not made out by averments in complaint. In the result the proceedings of complaint case were quashed. ( 15. ) LEARNED Counsel appearing for complainant respondent submitted that he also fully rely on the principles laid down by Supreme Court in the above referred case, but, he submitted that in the facts of above referred case non disclosure of the fact of pendency of a civil suit was not found sufficient for prosecution, on the ground that no averments made in the complaint to the effect that such information was withhold intentionally and dishonestly in order to deceive the complainant. ( 16. ( 16. ) THE short facts of the above referred case before the Supreme Court were that Haridaya Ranjan Prasad Verma and his brothers agreed to sell certain lands to respondent Co-operative Society engaged in purchasing land from different persons and after developing and dividing it into small pieces selling the plots to different customers. A registered sale deed was also executed; amount of consideration was paid by way of cheques which were dishonoured by the bank. ( 17. ) PRIOR to the execution of the sale deed, Akhil Ranjan Prasad Verma brother of Haridaya Ranjan Prasad Verma had filed a suit for partition alleging inter alia that though the properties left by their father had been partitioned amongst the brothers in 1971 but no division by metes and bounds had taken place. This litigation was pending and when the cheques issued by respondent society, were dishonoured, the appellant filed a complaint in Police Station in which charge-sheet was filed against the office bearers of Society. Thereafter one of the office bearers of the Society had filed a complaint against Haridaya ranjan Prasad for commission of offences under Sections 418,420,423,469,504 and 102 of the Penal Code. ( 18. ) IN the complaint the fact regarding partition suit, it was averted that suppression of facts relating to two pending civil suits from before and filing the criminal case against the complainant and civil cases against the Society the accused have lowered down the prestige and reputation of the Society and the complainant in the eyes of the members, customers and the public at large. In the complainant it was nowhere averted that information regarding pendency of civil suits was suppressed with dishonest intention to deceive and cheat the complainant. Thus in the facts of that case necessary averments regarding fraudulent and dishonestly inducing the complainant were missing. Whereas the facts of the present case in Paras B, C and D of the complaint, it has been clearly averted that the information regarding pendency of civil suit and Gift-deed kept in the bank were withhold by accused dishonestly and fraudulently just to induce the complainant to part away with his property. Therefore, facts of the case in hand are quite different than the above referred case. ( 19. ) ANOTHER judgment relied on by learned Counsel for accused reported in the matter of Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Therefore, facts of the case in hand are quite different than the above referred case. ( 19. ) ANOTHER judgment relied on by learned Counsel for accused reported in the matter of Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Sharaful Hazue and another, (2005) 1 SCC 122 , and contended that in the light of averments made in the complaint and statements made on oath by complainant, it clearly appears that the ingredients of offence are totally missing and there is no material to show that accused had in no way deceive the complainant. ( 20. ) LEARNED Counsel appearing for respondent complainant also placed reliance on this authority and submitted that Paras 8, 9 and 10 are important for deciding the case in hand which reads as under:- "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sinequo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist ). While exercising powers under the section, the Court does not function as a Court of appeal or revision. While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 9. In R. P. Kapur Vs. State of Punjab ( AIR 1960 SC 866 ) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:- (i) Where it manifestly appears that there is a legal bar against the institution or continuances e. g. , want of sanction; (ii) Where the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 10. In dealing with the last case, it important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. 10. In dealing with the last case, it important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the Trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, least it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. " ( 21. ) IN the above cited judgment the Apex Court has also referred the judgment of State of Haryana Vs. Bhajan Lal [1992 Supp (1) SCC 335] and it was found that power possessed by High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. ( 22. ( 22. ) WHEN we consider facts of the case in hand in the light of aforesaid settled principles of law it is manifestly clear from the facts stated in the complaint that if accused petitioner would have disclosed the fact with regard to pendency of civil suit regarding the immovable property situated at Alirajpur and that there are clouds over his title on the said property, then, complainant respondent might have refrained from entering into the Memorandum of Understanding with the accused petitioner and would not have spent huge amount in lakhs. ( 23. ) THE facts of non disclosure regarding an envelope of a Gift-deed kept in custody of the bank is also equally important. As stated by complainant before the Trial Court that Late Surendra Singh has gifted his property in many institutions and the State Government also. Witness Navin Sachdeo (P. W. 3)has deposed in clear words that a sealed envelope has been kept in the custody of the bank and the said envelope was obtained by the accused in the year 2001. The correspondence between accused and bank shows that accused was aware of the fact that a sealed envelope was kept in the bank prior to execution of memorandum of Understanding. Withholding the aforesaid informations regarding litigation and Gift deed prima facie shows that the intention of accused was dishonest even on the date of execution of Memorandum of Understanding. Therefore the learned Trial Magistrate committed no illegality in issuing the summons and in taking cognizance of the offence. There appear prima facie ingredients of the offence in the complaint filed by complainant punishable under Sections 415,420 and 477 of the Penal Code. ( 24. ) AS has been held by Apex Court in many cases, pendency of civil suit prior to filing of the complaint, is of no consequence. In this regard kindly see kamladevi Agarwal Vs. State of W. B. and others, (2002) 1 SCC 555 ; Ms. Lalmuni devi Vs. State of Bihar [2001 (I) MPWN 167] and M/s. Medchl Chemicals and pharma Pvt. Ltd. Vs. M/s. Biological E. Ltd. and others (2000 Cr. LJ 1487 ). ( 25. In this regard kindly see kamladevi Agarwal Vs. State of W. B. and others, (2002) 1 SCC 555 ; Ms. Lalmuni devi Vs. State of Bihar [2001 (I) MPWN 167] and M/s. Medchl Chemicals and pharma Pvt. Ltd. Vs. M/s. Biological E. Ltd. and others (2000 Cr. LJ 1487 ). ( 25. ) THE powers conferred in Section 482 of the Code should be sparingly and cautiously exercised and only when the Court after consideration, comes to a conclusion that otherwise it would be a case of abuse of process of court, or that there will be a gross miscarriage of justice. In such proceedings the documents which have been filed by accused along with the petition are normally not required to be looked into and the matter is required to be decided only on the basis of the material available before the Trial Court. ( 26. ) IN the case in hand, petitioner accused has filed certain documents and tried to argue on the basis of those documents that averments regarding forgery and cheating have not been mentioned in the civil suit filed in Delhi High court. Such documents have no bearings in the case in hand. The petitioner accused may file these documents at the appropriate stage before the Trial Court at the time of deciding the complaint. ( 27. ) LASTLY, learned Counsel for accused petitioner drawn attention of this Court towards the judgment reported in the matter of S. B. Goenka Vs. Rajendra Prasad Agarwalla (1982 Cr. LJ 1228), wherein it has been held that every breach of contract by a person does not constitute an act of cheating under section 420 of the Penal Code. It must be shown that his intention was dishonest at the time of making the contract. Dishonest intention cannot be inferred from the mere fact that the person did not subsequently fulfill the promise. In the absence of dishonest intention the dispute would be purely of a civil nature. ( 28. ) THIS judgment can very well be distinguishable on facts and in the present case it is found prima facie on the basis of averments in the complaint that accused had dishonestly and intentionally withhold certain information at the time entering into and execution of Memorandum of Understanding. ( 29. ) IN view of the aforesaid discussions, the petition fails and is hereby dismissed. Misc. Cr. Case dismissed.