JUDGMENT Vinod K. Sharma, J:- This petition under Section 482 of the Code of Criminal Procedure has been filed for quashing of FIR No. 154 dated 20-6-2006 registered under Section 406, 420, 120-B and 506 of the Indian Penal Code at Police Station Balachaur, District Nawanshahr, as well as the report filed under Section 173, Cr.P.C. and all subsequent proceedings. 2. This is a classic case of misuse of process of the Court, where the civil dispute between the parties has been given a colour of criminality and the petitioners have been made to face the trial since 2006. 3. The petitioners were owners in possession of land measuring 281 Kanals 11Marlas bearing Khasra Nos. 13//21 (8-0), 16//2(4-6), 4(8-0),5(7-8), 6(7-8),7(8-0),13/2/2 (1-8),14 (7-7),15(6-16),16(8-0),17 (8-0),19 (4-8), 22 (3-2),16//23(8-0), 24 (8-0); 25 (8-0),15//24(8-0), 25(7-8), 16//8(7-2), 9(2-12), 12(0-12), 13/1(0-7), 13/2/1(2-10) and Khasra Nos. 17//16 (8-0), 25 (8-0), 18//1(8-0), 2(8-0), 3(8-0),18//9(8-0),1-0(8-0),11(8-0), 20(8-0),16//3(8-0) entered in the Jamabandi for the year 2002-3 situated in village Heddon. Tehsil Balachaur, District Nawanshahr on the basis of two sale deeds dated .2-8-2005 registered in their favour on 5-8-2005. As per the averment in the petition, petitioners (except Bhupinder Singh, petitioner No.2) the purchased the property from Harbans Singh and Harprabh Pal Singh vide sale deeds dated 2-8-2005. 4. It is the case of the petitioners that they entered into an agreement on 10-01-2006 for sale of land measuring 35 acres with respondent Nos. 2 to 4 @ Rs.10,80,000/- (Rs. Ten lac eighty thousand) per acre and a sum of Rs.60,00,000/- (Rs. Sixty lac) was received as earnest money and the balance sale consideration was to be received by them on 31st of May, 2006 at the time of the registration of the sale deed. The petitioners had agreed to execute the sale deed either in favour of the purchasers or their nominees. 5. It is further the case of the petitioners that respondent Nos. 2 to 4 were not able to arrange the balance sale consideration and wanted to back out from the agreement to sell though the petitioners always showed their willingness to execute the sale deed in favour of respondent Nos.2 to 4. The petitioners even issued a legal notice to respondent Nos. 2 to 4 for execution of the sale deed through their Counsel. 6. The petitioners even issued a legal notice to respondent Nos. 2 to 4 for execution of the sale deed through their Counsel. 6. Before the date of execution of the sale deed, on 20th May 2006 petitioner No.1 was picked up from his house by a team of police officials and was taken to the office of Superintendent of Police, Nawanshahr where he was asked to return back the money to the respondents. However, did not agree to the said suggestion. 7. It is also the case of the petitioners that they remained present in the office of Sub Registrar/Joint Registrar on 31st of May 2006 and waited for respondent Nos. 2 to 4 to come and get the sale deed executed. . However, nobody appeared on behalf of respondent Nos. 2 to 4. 8. It is on 20th June, 2006 that an FIR was got registered against the petitioners by respondent Nos. 2 to 4. The FIR reads as under: “To The S.S.P. Nawanshahr. Sub: Application regarding cheating by Baldev Singh s/o Sh. Badan Singh s/o Sh. Basant Singh etc. residents of Ghanaula, now resident of Ghanaula, near cooperative Bank, Ropar. Sir, It is requested that I Gurcharan Singh s/o Sh. Amar Singh, am resident of Fatehullapur, Polie Station, Kharar. That I alongwith my partners 2) Santokh Singh son of Sh. Amar Singh 3) Harev Singh s/o Sh. Gurbakhsh Singh, resident of Fatehullapur, Police Station Kharar, District Mohali entered into an agreement regarding 35 acres of land on 10.1.2006 with Baldev Singh s/o Badan Singh s/o Basant Singh and Gurdev Singh, Vasakha Singh, Darshan Singh, Ujagar Singh, Gurmail Singh (brothers of Sh. Baldev Singh) of land situated in village Hedon Mand, Tehsil Balachaur, District Nawanshahr. The land which they had shown to us popular trees were standing in the said land in 12 acres. Believing them, we entered into the deal and now it has come to know that they have cheated us because the area which they had shown is Panchayat Deh and a case is pending of this land. On the basis of the agreement they have received an earnest money of Rs. 60 lacs (copy of agreement is enclosed) which they have received, from us by conniving with each other and by telling lie and cheated us. The area which they had shown they are not the owners of the same. On the basis of the agreement they have received an earnest money of Rs. 60 lacs (copy of agreement is enclosed) which they have received, from us by conniving with each other and by telling lie and cheated us. The area which they had shown they are not the owners of the same. So case be registered against them regarding cheating and suitable action be taken. Sd/ Gurcharan Singh, Your faithfully, Gurcharanm Singh s/o Sh. Amar Singh; Harvinder singh s/o Gurbakhsh Singh, residents of Fatehullapur, Police Station Kharar, District Mohali, dated 17/5/2006. The aforesaid application was enquired into by SI Gurdeep Singh, I/C/CIA/NSR who has submitted his report to SSP Nawanshahr and recommended for registration of the case. Today in the Police Station: On receipt of application No. 330-Peshi SSP dated] 7.5.06, after inquiry for registration of FIR through Dak, the case is registered under the aforesaid offences against the aforesaid and the original application alongwith all the documents alongwith copy of FIR are being sent to I/C, CIA. Nawahshahr for investigation through C- Avtar Singh No. 1087/KPT who brought it. Control Room is being informed on wireless. Closing rapat No.31 dated 20/6/06 at 7.40 P.M.” The allegation against the petitioners was that the land which was agreed to be sold was actually a Panchayat Deh land and the case qua the said land was pending. The petitioners have also on record copy of Jamabandi (Annexure P-7) showing that the land was under the ownership of Harbans Singh son of Kishan Singh son of Tarlok Singh and Harprabhpal Singh son of Harbans Singh of Kishan Singh, the vendor of the petitioners. 9. A civil suit has also been filed against the petitioners for recovery of earnest money paid by respondent nos. 2 to 4. The misuse of process of the Court further evident from the fact that in order to create evidence against the petitioners a wrong demarcation report of shamilat land of village Heddon Bet, Bhaipur and Mehmudpur Mandar, was got by obtaining an order from the Sub Divisional Magistrate, Balachaur. The demarcation was done by Ram Nath, Area Kanungo, Kuldip Kumar, Filed Kanungo and Satwinder Singh Patwari on 19th July, 2006. 10. The demarcation was done by Ram Nath, Area Kanungo, Kuldip Kumar, Filed Kanungo and Satwinder Singh Patwari on 19th July, 2006. 10. However, on a complaint made by the petitioners, it was found that there was deliberate violation by the Revenue officials and the Sub Divisional Magistrate, Balachaur recommended disciplinary action on the basis of which Gurdev Singh, Halqa Kanungo, Balachaur was placed under suspension. 11. It may be noticed with concern that eve as per the demarcation report, the petitioners were shown to be in possession of Shamlat land with respect of Khasra No. 8//12, 13 (min) and the said Khasra numbers did not form part of agreement to sell entered into between the petitioners and respondent Nos. 2 to 4. 12. It may also be noticed that in a suit for permanent injunction filed by the petitioners against the Gram Panchayat restraining it from interfering and dispossessing the petitioners from the land in dispute, the civil Court was pleased to pass the following order: “ Sarpanch of Vill. Heddon Bet” namely Sikandar Kaur has suffered a statement to the effect that disputed land is ownership of plaintiff and defendant Gram Panchayat has no concern with it and will not interfere in possession of plaintiff, except in due course of law. Keeping in view above statement, Mr. Bali, learned counsel for plaintiff has made statement to withdraw the suit. In view of statement of plaintiffs counsel, suit stands dismissed as withdrawn. However, the defendant Gram Panchayat shall remain bound by the statement given by Smt. Sikandar Kaur, Sarpanch of ViII. Heddon Bet. File be consigned to Record Room.” 13. The prosecution in the present case submitted report under Section 173 of the Code of Criminal Procedure to defeat the claim of the petitioners to seek quashing of fthe FIR: 14. The notice of the petitioner was given to the respondents wherein a stand was taken that after completion of investigation, the challan has already been presented in the Court of Sub Divisional Judicial Magistrate, Balachaur, who has taken cognizance of the charge framed against the petitioners and the case is fixed for prosecution evidence. 15. As it was a glaring case of misuse of the process of the Court, the State was asked to explain as to what was the material collected to make out a criminal case against the petitioners under the charged sections. 15. As it was a glaring case of misuse of the process of the Court, the State was asked to explain as to what was the material collected to make out a criminal case against the petitioners under the charged sections. However, the prosecution has failed to point out any material except the claim of the Gram Panchayat claiming that the land in dispute belongs to it and the proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act were pending. 16. It may be noticed here that even the petition said to have been filed under Section 7 of the Punjab Village Common Lands (Regulation) Act was not correct. 17. It is true that the Court while exercising powers under Section 482 of the Code of Criminal Procedure has to take the allegations made in the FIR to be correct and no evidence of defence can be taken into consideration. However, it has to be seen that there is a distinction between mere breach of the contract and the offence of cheating is fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but this subsequent conduct is not the sole test. A mere breach cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown 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 gist of the offence. The mere failure to keep up promise subsequently cannot be presumed. 18. In the present case, there is no breach on the part of the petitioners. Rather, it is the respondents, who chose not to complete their part of the contract though the petitioners had always been willing. 19. The facts detailed above leave no manner of doubt that the present is a civil dispute and ingredients or criminal case are lacking and, therefore, continuation of the criminal proceedings would amount to misuse of the process of the Court. 20. Learned counsel appearing on behalf of the complainant and State, however, submitted that the reading, of FIR and the material collected by the prosecution show that the ingredients of the offence have been disclosed and the petitioners have been charged and, therefore, there is no justification for interference by this Court. 20. Learned counsel appearing on behalf of the complainant and State, however, submitted that the reading, of FIR and the material collected by the prosecution show that the ingredients of the offence have been disclosed and the petitioners have been charged and, therefore, there is no justification for interference by this Court. This proposition of settled law cannot be applied to the cases where the criminal prosecution is outcome of mala fide and are frivolous and vexatious. 21. As already observed above, in the present case, there is absolutely no material collected showing that the property agreed to be sold was not under the ownership of the petitioners. It has also not been shown as to whether at any stage, the petitioners had shown their unwillingness to execute the sale deed in favour of respondent Nos. 2 to 4 in pursuance to the agreement to sell. Rather, the Sarpanch of the Gram Panchayat had made a statement in the civil suit stating therein that they would not interfere in possession of the petitioners herein. 22. It may be noticed that in the case in hand without even taking a chance of getting sale deed executed in spite of legal notice having been issued by the petitioners, the complainants chose to lodge an FIR with the allegations which were so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there are sufficient grounds for proceeding against the accused-petitioners. The agreement to sell contained the description of the property and there was hardly any reason for the complainants to come up with a plea that the land shown to them was one which was under the ownership of the Gram Panchayat. In the instant case, it may also be noticed that the material brought on record clearly shows that the continuation of criminal proceedings is nothing, but misuse of the process of the Court and in case the same are allowed to continue, it would defeat the ends of justice. For the reasons stated above, this petition is allowed. The FIR and all subsequent proceedings including the order framing the charges against the petitioners are ordered to be set aside. ———————