JUDGMENT 1. - Instant criminal miscellaneous petition has been filed by the petitioner Pramod Kumar Chhaparwal, in which, he has prayed for quashing coginzance taken against him by the Addl. Chief Judl. Magistrate No. 2 , Udaipur in Criminal Case No. 114./2004. 2. Briefly stated, facts of the case indicate that a complaint was filed by complainant Kanhaiya Lal Kumawat under Section 156(3), Cr.P.C. in the Court of Addl. Chief Judl. Magistrate No. 2, Udaipur, in which, it is alleged that the petitioner Pramod Kumar Chhaparwal, who is Chartered Accountant by profession, is his friend and, on 1.10.2003, he (petitioner) came to his residence and said that he is having 5 bigha land at good location in village Sukher and due to need of money he wanted to sell the said land to him (complainant) because he is his (petitioner's) friend. Upon the verbal proposal given by him, it was agreed by the complainant that he will purchase the said land at the cost of Rs. 3,50,000/- per bigha and, after agreement with regard to the cost 4 lakh rupees were paid and a receipt of Rs. 4,00,000/- was immediately given by the petitioner, in which, the fact of above deal was incorporated. 3. As per allegation levelled in the F.I.R., all efforts were made by the complainant to get the sale-deed executed in his favour but for one or the other reason the sale was not executed by the accused-petitioner. Thereafter, for some time the complainant himself went outside from Udaipur because he was not having any doubt upon the intention of the accused-petitioner. But, ultimately, when the sale-deed was not executed, then, enquiry was made by the complainant from the Patwari of the halka (area) village Sukher, then, it came to his knowledge that on 1.10.2003 the accused was not having any land in his name. But, while giving wrong proposal/assurance and with intention to cheat in the garb of friendship the petitioner took Rs. 4,00,000/- from him and, upon request made to return the money, he refused to return money, therefore, the above complaint under Section 156(3), Cr.P.C. was filed for taking criminal action against the petitioner. 4. After receiving the complaint sent by Addl. Chief Judl. Magistrate No. 2, Udaipur, F.I.R. No. 179/2004 was registered against the petitioner under Sections 406 and 450 I.P.C. on 7.5.2004. 4. After receiving the complaint sent by Addl. Chief Judl. Magistrate No. 2, Udaipur, F.I.R. No. 179/2004 was registered against the petitioner under Sections 406 and 450 I.P.C. on 7.5.2004. In the investigation, statement of complainant Kanhaiyalal Kumawat and other witnesses were recorded and, after completion of investigation, challan was filed against the petitioner. 5. Learned trial Court, upon filing challan by the Investigating Officer, took cognizance of offences under Sections 406 and 420, I.P.C. against the petitioner of 8.12.2004. In this miscellaneous petition, the petitioner has prayed quashing order of taking cognizance and the proceedings. 6. Learned counsel for the petitioner submits that in all, three complaints were filed by the complainant and his family members, one after another, at different Police Stations of Udaipur regarding same civil transactions about selling of the land through agreement within the agricultural boundary of village Sukher. Instant F.I.R. No. 179 dated 7.5.2004 was registered at Police Station Ambamata. Another F.I.R. bearing No. 58 dated 11.5.2004 was registered for offences under Sections 467, 471, 406 and 420/34, I.P.C. at Police Station Dhanmandi and F.I.R. No. 71 dated 24.5.2004 was registered at Police Station Dhanmandi under Sections 420 and 406, I.P.C. upon complaints filed under Section 156(3), Cr.P.C. 7. In the above F.I.Rs., after investigation, the police filed challan in the Court of Addl. Chief Judl. Magistrate No. 2, Udaipur (in F.I.R. No. 179 dated 7.5.2004) and in the Court of Addl. Judl. Magistrate No. 1 (North), Udaipur in relation to F.I.Rs. No. 58 and 71 of 2004 filed at Police Station Dhanmandi (Udaipur). 8. Learned counsel for the petitioner submit that for civil transactions only to harass the petitioner the above F.I.Rs. have been filed and the police while ignoring the fact that if is civil transaction filed challan against the petitioners for offences under Sections 406 and 420, I.P.C. but, in fact, no offence is made out as per evidence on record. As per learned counsel for the petitioner, the complainant filed these F.I.Rs. to harass and blackmail the petitioner which amount to gross abuse of the process of Court, therefore, this miscellaneous petition filed under Section 482, Cr.P.C. may be allowed while quashing the cognizance taken against the petitioner. 9. As per learned counsel for the petitioner, the complainant filed these F.I.Rs. to harass and blackmail the petitioner which amount to gross abuse of the process of Court, therefore, this miscellaneous petition filed under Section 482, Cr.P.C. may be allowed while quashing the cognizance taken against the petitioner. 9. Learned counsel for the petitioner invited my attention towards the fact that in the investigation of this case the petitioner admits that verbal agreement was arrived at in between him and complainant for selling the land and, during the course of investigation, the complainant himself produced agreement to sale dated 19.12.2003 executed by one Ishwarlal Suthar, power of attorney holder of seller Mannalal Bheel, in favour of the complainant, his wife and his son. Another agreement dated 19.12.2003 was also produced by the complainant executed by Neeraj Chhaparwal S/o petitioner Pramod Kumar Chhaparwal, power of attorney holder of sellers Kamaliya, Maganiya and Tolaram Bheel, so also, receipt which is given by the petitioner Pramod Kumar Chhaparwal for receiving Rs. 4,00,000/- on 1.10.2003. 10. Learned counsel for the petitioner argued that despite the case being of civil transaction, 3 different F.I.Rs. have been filed by the complainant only to harass the petitioner and his family whereas if the complainant is interested in purchase of land, then, he ought to have filed civil suit against the petitioner and his family members for executing the sale-deed under the Specific Performance Act which has not been filed by him, therefore, it is prayed that as per judgment of Hon'ble Supreme Court in the case of Dharimal Tabacoo Products Ltd. & Ors. v. State of Maharashtra and Anr., reported in AIR 2009 SC 1032 , in which, it has been held by the Apex Court that where proceedings amounts to abuse of the process of Court, non-filing of revision does not out embargo upon exercise of power under Section 482, Cr.P.C. for quashing the same, therefore, this petition deserves to be allowed and cognizance taken by the trial Court may be quashed and set aside. 11. Learned counsel for the petitioner further invited attention of the Court towards the fact that there can be no second F.I.R. in view of the judgment of Hon'ble Supreme Court in the case of T.T. Antony v. State of Kerala, reported in AIR 2001 SC 2637 and, as per judgment of the Supreme Court in Dalip Kaur and Ors. 11. Learned counsel for the petitioner further invited attention of the Court towards the fact that there can be no second F.I.R. in view of the judgment of Hon'ble Supreme Court in the case of T.T. Antony v. State of Kerala, reported in AIR 2001 SC 2637 and, as per judgment of the Supreme Court in Dalip Kaur and Ors. v. Jagnar Singh & Anr., reported in 2009 (4) RLW 3488 (SC) , submitted that on the basis of contradictory statement in the complaint about sale of plot clearly establishes that prima facie the case is not made out. While referring to the judgment of the Supreme Court in the case of Dalip Kaur & Ors. (supra), it is submitted by learned counsel for the petitioner that if the dispute between the parties was initially a civil dispute resulting in breach of contract the same would not constitute an offence of cheating. 12. Learned counsel for the petitioner lastly argued that for any offence intention is to be gathered. Here, in the case, admittedly after verbal agreement to sell the land, Rs. 4,00,000/- were paid as advance and the petitioner gave receipt of Rs. 4,00,000/- because he was holding power of attorney in respect of the land, for which, verbal agreement was made and amount of Rs. 4,00,000/- was accepted by the petitioner but by giving colour of crime to the civil transaction F.I.R. has been filed which is totally illegal. In his view of the matter, it is prayed by learned counsel for the petitioner that cognizance taken against the petitioner and the proceedings may be quashed. 13. Per contra, learned counsel for the complainant and learned Public Prosecutor argued that against the order of cognizance the petitioner is required to file revision petition, therefore, this petition under Section 482, Cr.P.C. is not maintainable. Further, it is argued that admittedly without any land the petitioner took Rs. 4,00,000/- from the complainant even though he was not having land in his favour, therefore, from the initial stage there was intention of the petitioner to cheat the complainant. Therefore, this petition under Section 482, Cr.P.C. deserves to be dismissed. 14. Further, it is argued that admittedly without any land the petitioner took Rs. 4,00,000/- from the complainant even though he was not having land in his favour, therefore, from the initial stage there was intention of the petitioner to cheat the complainant. Therefore, this petition under Section 482, Cr.P.C. deserves to be dismissed. 14. Learned counsel for the complainant submitted that after investigation the police filed charge-sheet against the petitioner and form investigation it is revealed that prima facie case is made out against the petitioner for committing offences under Sections 406 and 420, I.P.C. therefore, this petition may be dismissed. 15. After hearing learned counsel for the parties, I have perused the entire record of the case. 16. Admittedly, in this case, the main grievance of the complainant is that on 1.10.2003, a verbal agreement to sell the land was entered into in between the petitioner and complainant and, on 1.10.2003, the day on which the said deal was executed, as per complainant himself they were friends and due to assurance given by the petitioner he gave Rs. 4,00,000/- in advance against the sale of agricultural land in village Suker at the rate of Rs. 3,50,000/- per bigha and this fact is incorporated in the receipt dated 1.10.2003 which is on record. In the investigation, the main allegation against the petitioner is that he was not having land but he took Rs. 4,00,000/- in advance for the sale of 5 Bigha agricultural land. 17. In the record of the case, certain photostat copies of agreement to sale and powers of attorney were produced by the accused as well as by the complainant. There is photostat copy of power of attorney executed by Devilal S/o Bheraji in favour of the petitioner Pramod Kumar Chhaparwal is on record of the case at page 33 which is submitted by the petitioner before the Investigating Officer on 26.6.2004. Said power of attorney was executed on 16.8.2003. The Investigating Officer enclosed the said power of attorney and photo stat copies of agreement to sale executed by one power of attorney Ishwarlal and Neeraj Chhaparwal on 19.12.2003 which were filed by the complainant and which is part of the record but the Investigation Officer ignored those documents in the investigation and filed challan. 18. The Investigating Officer enclosed the said power of attorney and photo stat copies of agreement to sale executed by one power of attorney Ishwarlal and Neeraj Chhaparwal on 19.12.2003 which were filed by the complainant and which is part of the record but the Investigation Officer ignored those documents in the investigation and filed challan. 18. Upon perusal of the above power of attorney it is revealed that the day on which receipt dated 1.10.2003 was executed by the petitioner he was holding power of attorney executed in his favour by Devilal and it appears that at the strength of that power of attorney the petitioner Pramod Kumar Chhaparwal took advance of Rs. 4,00,000/- from the complainant while stating that the land is situated in village Suker of Udaipur district. In this view of the matter, it appears that the allegations levelled by the complainant against the petitioner are of civil nature. There is no allegation in the F.I.R. that complainant was not having any relation with the petitioner. More so, it is stated in the F.I.R. that petitioner is his friend but after accepting the amount in advance he refused to execute the sale-deed in his favour nor he has returned the amount of advance of Rs. 4,00,000/-; meaning thereby, there is force in the contention of learned counsel for the petitioner that by way of filing this criminal proceeding the complainant is giving colour to the civil dispute of criminal act of the petitioner, therefore, in view of the judgment of the Apex Court in Dharimal Tabacco's case (supra) the petitioner can challenge F.I.R. by way of filing 482, Cr.P.C. petition while saying that F.I.R. itself is abuse of the process of Court.As per facts arising out in the investigation, it is case of non-refund of amount of advance taken by the petitioner, therefore, the controversy involved in this case is squarely covered by the judgment of the Apex Court reported in 2009 (4) RLW 3488 (SC), rendered in the case of Dalip Kaur & Ors. v. Jagnar Singh & Anr. (supra), in which, Apex Court held that if the dispute between the parties was initially a civil dispute resulting from breach of control on the part of the appellant by non-refunding the amount of advance the same would not constitute offence of cheating. Paras 10 to 12 of the said judgment read as follows: 10. v. Jagnar Singh & Anr. (supra), in which, Apex Court held that if the dispute between the parties was initially a civil dispute resulting from breach of control on the part of the appellant by non-refunding the amount of advance the same would not constitute offence of cheating. Paras 10 to 12 of the said judgment read as follows: 10. Sections 405 and 415 of the Indian Penal Code defining 'criminal breach of trust' and 'cheating' respective read as under: "405. Criminal brach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonesty misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contact, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits" criminal breach of trust". "415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver 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'."An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating. 11. The ingredients of Section 420 of the Indian Penal Code are: "(i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit". 12. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant has an intention to cheat him from the very inception. 12. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant has an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code. [See Ajay Mitra v. State of M.P., (2003) 3 SCC 11 ]." As result of the aforesaid discussion, while following the Apex Court judgment quoted hereinabove after taking into consideration the facts and circumstances of this case, this criminal miscellaneous petition is hereby allowed. The order of taking cognizance dated 8.2.2004 passed by Addl. Chief Judl. Magistrate No. 2, Udaipur in Criminal Case No. 1143/2004, arising out of F.I.R. No. 179/2004 dated 7.5.2004, P.S. Ambamata (Udaipur) is quashed and set aside. Consequently, entire proceedings in this case stand quashed.Petition Allowed. *******