JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral):- Smt. Rekha Bharana wife of H.S. Bharana, resident of C-146, Sarvodya Enclave, New Delhi has filed the present petition seeking quashing of complaint (Annexure P-2) along with summoning order (Annexure P-1). 2. Before I Narrate the facts, it will be essential to take note of grievance of the complainant. The grievance of the complainant, on which the entire edifice is built, has been narrated in the concluding para No. 13 of the complaint. It will be apposite here to reproduce para 13 of the complaint: “13. That the complainant has also suffered huge losses due to the said acts on the part of the accused. The prices of the plots in the vicinity of the plot in question has almost touched the double. The accused has taken the law in her­ own hands by stating the cancellation of the agreement to sell date 13.7.2004 of her own which she executed in favour of the complainant and also by returning the earnest money/ part payment of the plot in question to the complainant by the said Demand draft amount to Rs.2,00,000/- (Rupees Two Lacs only) while she can not return the amount of earnest money/part payment to the complainant through Demand Draft of her own in the like manner. The complainant has got a legal right to get the sale deed executed in his favour in terms of the agreement to sell dated 13.7.2004 from the accused regarding the plot in question in the office of Sub Registrar, Faridabad, and the accused has no reason or occasion to make refusal for the same.” 3. Dissection of para 13 reveals following grievances of the complainant: (i) Complainant has suffered huge loss due to the acts on the part of the accused; (ii) Prices of the plots in the vicinity of the plot in question have almost touched the double. (iii) The accused has taken the law in her own hands by stating the cancellation of agreement to sell dated 13th July, 2004 of her own, which she executed in favour of the complainant and also by returning the earnest money of the plot in question to the complainant by the demand draft amounting to Rs.2,00,000/-, while she can not return the amount of earnest money through demand draft of her own in like manner. (iv) The complainant has got a legal right to get the sale deed executed in his favour in terms of the agreement to sell dated 13th July, 2004 from the accused regarding the plot in question in the office of Sub Registrar, Faridabad and the accused has no reason or occasion to make refusal of the same. 4. Briefly stated, petitioner was the owner of property Plot No.537 situated in Sector 16-A, Faridabad measuring 500 square yards. It is averred in the complaint that accused expressed his willingness to sell the plot to the complainant and on 13th July, 2004, agreement to sell (Annexure P-3) was executed. The total amount of sale consideration arrived at was Rs.19,62,500/-. Rs.2.00 lakh was paid as earnest money. As per the agreement to sell, the sale deed was to be executed on or before 30th September, 2004. On 12th September, 2004, vide Annexure P­ 5, petitioner vide registered A.D., informed the complainant that the agreement to sell stands cancelled. Petitioner also relied upon Annexure P-4, a letter dated 15th September, 2004 addressed by the complainant to the accused, wherein it was stated that amount of sale is ready. The amount of earnest money was sent back to the complainant by way of draft (photocopy of which has been attached as Annexure P-7) and the draft was prepared on 16th October, 2004. A notice was sent by the complainant through his counsel on 11th October, 2004 (copy of which is attached as Annexure P-8), in which petitioner was called upon to redeem the mortgage of the plot and to executed the sale deed in favour of the complainant. The notice was replied back on October 18, 2004 by the counsel for the accused (copy of which has been attached as Annexure P­ 9), in which it was stated that there has been cessation of the agreement dated 8th July, 2004 as complainant has failed to perform his part of the agreement. It was further stated that the amount of Rs.2.00 lakh is being returned a goodwill gesture, even though the accused was entitled to forfeit the same. Complainant issued another letter by way of speed-post to the accused, in which it was stated that he has a right to get the sale deed executed through the Court of law for complying with Clause 9 and 11 of the agreement. Complainant issued another letter by way of speed-post to the accused, in which it was stated that he has a right to get the sale deed executed through the Court of law for complying with Clause 9 and 11 of the agreement. Further, accused was called upon to seek permission for transfer of the plot from HUDA, Faridabad and to execute sale deed in favour of the complainant. This letter (Annexure P-10) was replied back by the counsel for the accused on October 29, 2004 vide Annexure P-11. It was stated in para 4 that during the course of transaction/negotiation, it was verbally informed to the complainant that the property has been mortgaged and accused will use the amount for redemption of the mortgage. Accused again issued notice (Annexure P-12), in which it was stated that the amount of the same was to be used for redeeming the property. Various notices and letters have been exchanged between the parties to make their claim and counter-claim. 5. Mr. Akshey Bhan appearing for the petitioner has stated that breachof agree- ment to sell will not constitute any criminal offence. It has been further contended that it is not the case that the amount of earnest money has not been returned by the petitioner, but at the first opportunity, it was returned back to the complainant. 6. Mr. N.K.Sanghi appearing for the complainant has made two submissions. He has drawn my attention to a Clause in the agreement to sell, where it has been stated that “the property is free from all sorts of encumbrances, i.e., gift, mortgage, will, claims, demand charges and litigations etc.” 7. I have also perused Clause 3 in the agreement to sell, which is reproduced below: “3. That the said seller shall pay, if any thing is found due against the said property to the Government and other dues, in respect of the said property of local authorities and shall also pay the enhanced price of land to the Government.” 8. However, Mr. Sanghi, has very candidly admitted that complainant has filed a suit for specific performance. He has further submitted that in the complaint, it has been stated that the accused has returned the amount of earnest money by way of demand draft, but he has stated that the demand draft has not been encashed. Mr. Sanghi has blown hot and cold in the same breath. He has further submitted that in the complaint, it has been stated that the accused has returned the amount of earnest money by way of demand draft, but he has stated that the demand draft has not been encashed. Mr. Sanghi has blown hot and cold in the same breath. He has stated that he is still ready and willing to get the sale deed executed, but at the same time, he stated that because of the fact of mortgage not having been disclosed, complainant was made to part with the earnest money, hence, offence is made out against the petitioner. 9. A perusal of the notices given by the complainant shows that accused was called upon to redeem the mortgage and sell the property to the complainant. It is also stated in the complaint in para 2 that accused had sent demand draft of Rs.2.00 lakh to the complainant, but accused was not entitled to send back the earnest money. 10. Present case is a case where civil litigation is pending. In spite of misrepresentation, that property is free from encumbrances, complainant want to go ahead with agreement. The breach of agreement to sell necessarily will not constitute offence of cheating. The complainant is only interested in the execution of the sale deed. The factum of mortgage, in no way, has made him disinterested in the same. Even though, the property is eclipsed with the mortgage, complainant intend to bind the seller with the agreement to sell. 11. There is a difference between misrepresentation and fraudulent representation. Every misrepresentation will not constitute offence of cheating. 12. It is a case of the complainant that inspite of misrepresentation that property is free from all encumbrances having found that property has been mortgaged complainant tend to persist with agreement to sell. The complainant had filed a suit for specific performance calling upon accused/seller to execute sale deed. A perusal of para 13 of the complaint also shows that the grievance made is that seller/accused has backed out of agreement to sell. Misrepresentation has been defined under Section 18 of the Indian Contract Act, 1872 and the same is reproduced below:­- “18. Misrepresentation” defined. A perusal of para 13 of the complaint also shows that the grievance made is that seller/accused has backed out of agreement to sell. Misrepresentation has been defined under Section 18 of the Indian Contract Act, 1872 and the same is reproduced below:­- “18. Misrepresentation” defined. - Misrepresentation” means and includes­- (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, “though he believes it to be true; (2) any breach, of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement” 13. Section 19 of the Indian Contract Act, make voidability of agreement without free consent. A particular reference is required to be made to illustration ‘C’ of Section 19. Section 19 of the Indian Contact Act and illustration ‘C’ are reproduced below: “19. Voidability of agreements without free consent.­- When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. Exception: If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation: A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable. Illustrations xxxx xxxx xxxx (c) A fraudulently informs B that A’s estate is free from encumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed”. 14. Illustrations xxxx xxxx xxxx (c) A fraudulently informs B that A’s estate is free from encumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed”. 14. Having reproduced the relevant provisions of the Indian Contract Act, it become necessary to examine them on the touchstone of definition of cheating given in the Indian Penal Code. Section 415 defines cheating. A close illustrations is (i). Section 415 and illustration (i) read as under:- 415. Cheating­ Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.­ A dishonest concealment of facts is a deception within the meaning of this section. Illustrations xxxx xxxx xxxx (i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats. 15. It is necessary to emphasis the words “intentional inducements of person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived”. These are the words which constitute essential ingredient and bring out difference between the thin wall of misrepresentation and fraudulent representation. The fact that the seller/accused stated wrongly that property is free from all encumbrances i.e. mortgage would have constituted offence of cheating if complainant had not opted to persist with agreement to sell and was well within his rights that same amounts to fraudulent representation. But once with the wrong representation made in the agreement to sell, complainant wants agreement to sell to be taken to logical conclusion. He has not been deceived and offence of cheating is not made out. But once with the wrong representation made in the agreement to sell, complainant wants agreement to sell to be taken to logical conclusion. He has not been deceived and offence of cheating is not made out. There is nothing, which he is being made to do or omit because of misrepresentation. In that case, the case of complainant will fall under Section 19 of the Indian Contract Act under illustration ‘C’ that’ seller may insist on the contract being carried out and the mortgage debt redeemed. 16. A constructive analysis of Section 19 of the Indian Contract Act and illustration (c) appended to it reveals that a solution to the problem, which is being dealt in this case, is provided in the Contract Act itself. The question as to whether non-disclosure of mortgage will constitute the offence of cheating or not, would have been relevant if the complainant would have avoided the contract, since it was voidable at his option. In the present case, the complainant is insisting that the contract be fulfilled. Therefore, the question of the property being subject to a mortgage will be irrelevant, since by virtue of the provision of the Contract Act, the complainant can ensure that the accused redeems the mortgage. Even otherwise, the offence of cheating is not constituted in the present case. In the case of Devinder Kumar Singla v. Baldev Krishan Singla (2005) 9 Supreme Court Cases 15, it has been held by Hon’ble the Apex Court as under:­- “Section 415 of the IPC requires (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, (iii) intentionally inducing that person to do or omit to do if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property”. 17. In this erudite judgment, the basic ingredients of the offence of cheating have been restated. A reading of the above paragraph will reveal that mere deception in itself will not constitute the offence of cheating. It is imperative for the complainant to show that except for the deception, he would not have acted in the manner he has so acted. In this erudite judgment, the basic ingredients of the offence of cheating have been restated. A reading of the above paragraph will reveal that mere deception in itself will not constitute the offence of cheating. It is imperative for the complainant to show that except for the deception, he would not have acted in the manner he has so acted. In the present case, the second ingredient of the offence of cheating is not made out, since the complainant still insists on the performance of the contract, even after knowing that the property has been mortgaged. Therefore, this complaint does not disclose a prima facie offence against the accused. 18. Counsel appearing for the petitioner has relied upon Hridaya Ranjan Pd. Verma v. State of Bihar, AIR 2000 Supreme Court (2431) to contend that where the factum of the pendency of partition proceedings was not disclosed, it was held by Hon’ble Apex Court that no offence is made out. In para 16 and 17 of the judgment, it has been held as under: “16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420, IPC and its allied offences under sections 418 and 423 has not been made out. 17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420, IPC and its allied offences under sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120-B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana v. Bhajan Lal (1992 AIR SCW 237: AIR 1992.SC 604 : 1992 Cri LJ 527) (supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that the respondent No.2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No.2 part with property is not alleged expressly or even impliedly in the complaint. Therefore, the core postulate of dishonest intention in order to deceive the complainant-­respondent No.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.” 19. In the light of test laid by Hon’ble Apex Court, the very fact that the complainant intended to proceed with the agreement to sell, even with the knowledge that property had been mortgaged, is sufficient to infer that complainant is ready to perform his part and simply because accused do not want to honour the contract, it cannot be held that offence of cheating is made out. Furthermore, the accused has shown his intention at the earliest by returning the amount of earnest money by way of demand draft. Furthermore, the accused has shown his intention at the earliest by returning the amount of earnest money by way of demand draft. Reliance has also been placed upon Uma Shankar Gopalika v. State of Bihar and another (2006) 2 Supreme Court Cases (Cri) 49 to contend that the dispute herein between the parties is surely a civil dispute and no criminal offence is made out. 20. Controverting the submissions made by the counsel for the petitioner, Mr. Sanghi has relied upon a Single Bench judgment of Bombay High Court titled Chintaman v. Dnyaneshwar and another, 1974 Criminal Law Journal 542 to contend that when a false statement is made that property is free from all encumbrances, offence is made out. 21. There is no quarrel. with this proposition, but in the present case, complainant has expressed his willingness to continue with agreement to sell. Even though, the property is mortgaged, it is not that the fact of mortgage has deterred the complainant to perform part of the contract. The grievance of the complainant, as set out in para 13, is that as by afflux of time the prices of property has doubled, therefore a wrongful loss has been caused to him. A loss, which is dependent upon market fluctuations, cannot be called as a wrongful loss, as no mensrea can be gathered, which will bring the offence within the four corners of the definition of cheating as given in the Indian Penal Code. Mr.Sanghi has further raised a contention that the order of summoning is only amenable to revision and the same cannot be quashed under Section 482 Cr.P.C. To controvert this contention, counsel for the petitioner has relied upon Adalat Prasad v. Rooplal Jindal, 2004(4) RCR (Criminal) 1 to contend that it has been observed by Hon’ble Apex Court that where summoning order has been passed, remedy is under Section 482 Cr.P.C. Mr.Sanghi has stated that this Court has explained Adalat Prasad’s judgment in various judgments and has held that by ratio of Adalat Prasad’s case (supra), revisional jurisdiction is not ousted. 22. Be that as it may, Adalat Prasad’s case (supra) confer a right in the petitioner to approach this Court under Section 482 Cr.P.C. for quashing of the summoning order. 23. 22. Be that as it may, Adalat Prasad’s case (supra) confer a right in the petitioner to approach this Court under Section 482 Cr.P.C. for quashing of the summoning order. 23. Reliance has also been placed by counsel for the petitioner upon M/s Medohi Chemicals & Pharma Pvt. Ltd v. Biological E. Ltd., 2000 (2) RCR (Criminal) 122 to contend that any omission or commission on the part of the accused may constitute both civil and criminal liability there is no doubt in this submission but every civil liability is not a criminal liability, which is to be interpreted in the facts and circumstances of each case. In view of the discussion made above, I accept the present petition and quash the complaint (Annexure P-2) along with summoning order (Annexure P-1). ------------------