Judgment R.R.PRASAD Since both the matters arising out of the same case, they were taken for hearing together. Cr.Rev.No.875 of 2009 This revision application is directed against the order dated 30.7.2009 passed in Complaint Case bearing C/1 case no.1108 of 2007 by the then Judicial Magistrate, 1st Class, Jamshedpur whereby and whereunder learned Magistrate while rejecting the application filed under Section 245 of the Code of Criminal Procedure for discharge from the accusation punishable under Section 420 of the Indian Penal Code held that there has been sufficient material to frame charge under Sections 420, 120B, 109/34 of the Indian Penal Code whereas Cr.Misc. petition is directed against the order dated 7.12.2007 whereby and whereunder learned Judicial Magistrate took cognizance of the offence under Sections 420, 120B, 109/34 of the Indian Penal Code against the petitioners. It appears that a complaint was lodged before the Chief Judicial Magistrate for commission of the offence under Sections 406, 420/34 of the Indian Penal Code. That complaint was sent before the concerned police station for institution and investigation of the case, upon which Mango (Olidih) P.S case no.103 of 2007 was registered under Sections 406, 420/34 of the Indian Penal Code. Upon investigation, the case was found as that of civil dispute and hence, final form was submitted which was accepted by the court. Thereupon, a protest petition was filed which was treated as a complaint and was numbered as C/1 case no.1108 of 2007. The case which has been made out in the complaint is that Yuvraj Grih Nirman Swablambi Sahkari Samity Limited is a registered society primary object of which was to acquire land on purchase or otherwise and to construct flats over it and to allot the same to its members to which petitioners no.1 and 2 are the honorary Secretary and Chairman respectively, who after acquiring the land constructed several flats over it and took Rs.3000/-from each of the flat purchaser as membership fees. At the same time, they represented to them that the apartment will have its lawn, children park, internal road, fire hydrant point, parking area, shopping area and each of the block will have floor lift and ground lift. Apart from that, they also promised to abide by the rules and regulations of the Society and will get the deed of transfer registered. Apart from that, they also promised to abide by the rules and regulations of the Society and will get the deed of transfer registered. The accused persons on such inducement offered to sell the flats to the members. The members purchased the flats. On possession being given to them, they occupied the flats but the petitioners never provided the facilities as had been promised.. It has been alleged that in stead of providing floor lift and general life in each block, only general lift was provided whereas no provision of lawn, children park, internal road etc. was made and that instead of constructing G+5 apartment, the accused persons in violation of the plan, constructed G+6 and they even put the water tank at the top of the floor exposing the occupants to danger to their lives. Further it has been alleged that at the time of purchase, the petitioners had promised to get the transfer deed registered from their own cost but now they are asking extra money for it. Thus, it has been alleged that the petitioners dishonestly induced the members to purchase the flats but the facilities which were promised to be provided had never been provided and as such, they cheated the flat owners. On enquiry being held, cognizance of the offence was taken under Sections 420, 120B, 109/34 of the Indian Penal Code which order is under challenge in Cr. M.P.No.323 of 2008. Subsequently, the application for discharge was filed which was rejected vide order dated 30.7.2009. Mr. Mehta, learned counsel appearing for the petitioners submits that the complaint has been filed with ulterior motive as the complainant wanted to get the transfer deed registered at the cost of the society whereas, as per the agreement entered into in between the society and the members, cost of the registration of deed of transfer was tobe borne by the flat purchasers and this fact would be evident from the legal notice given to the petitioners, when the petitioners conveyed the complainant that it is not possible. The compliant was lodged with all false allegations that the cost of the registration is tobe borne by the petitioners and that without getting the plan sanctioned for construction of G+6, the petitioners constructed the same and that certain amenities have not been provided, though construction at the time of complaint was still going on. The compliant was lodged with all false allegations that the cost of the registration is tobe borne by the petitioners and that without getting the plan sanctioned for construction of G+6, the petitioners constructed the same and that certain amenities have not been provided, though construction at the time of complaint was still going on. Moreover, the instant case is out and out a case of civil liability not of criminal liability, as the petitioners even on the face of allegations, cannot be said to have fraudulently and dishonestly induced the purchasers to purchase the flats and as such, the offences alleged never gets attracted. Learned counsel appearing for the petitioners further submits that in similar situation, where the builders had not fulfilled the promise of giving certain amenities as had been promised at the time of agreement, the case was brought against the builder in which cognizance of the offence was taken of cheating and misappropriation which was challenged before the Patna High Court in Cr.Misc.No.26534 of 2003 (Patliputra Builders Pvt.Ltd and others vs. State of Bihar and others) [2005(1) East Cr.C.397 (Pat)] and the court did find the case of breach of agreement giving rise to civil liability and hence, quashed the order taking cognizance. Learned counsel in support of his submission has also referred to decisions rendered in cases of Anil Mahajan vs. Bhor Industries Ltd. and another[ (2005) 10 SCC 228 ] and Dalip Kaur and others vs.Jagnar Singh and another [ (2009) 14 SCC 696 ]. As against this, Mr.Sinha,learned counsel appearing for the opposite no.2 submits that it is a case of the complainant that the petitioners by giving rosy picture of the flats tobe constructed and the amenities tobe provided induced the members of the society fraudulently to purchase the flat but the petitioners never fulfilled the promise and as such, it is a clear cut case of cheating and therefore, learned Magistrate did not commit any illegality in rejecting the prayer for discharge. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that it is a case of the complainant that the petitioners had made representation before the members that the flats which would be constructed would be provided with certain facilities/amenities but those facilities/amenities which were promised, were never fulfilled. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that it is a case of the complainant that the petitioners had made representation before the members that the flats which would be constructed would be provided with certain facilities/amenities but those facilities/amenities which were promised, were never fulfilled. Thus, the question which does arise is as to whether the instant case falls within the ambit of civil liability or the criminal liability. It be stated that when somebody suffers injuries to his personal property or reputation, he may have remedies both under civil and criminal liability. The injury alleged may form the basis of civil claim and may also constitute the ingredient of some crime available under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrong drawer for having committed an offence of criminal breach of trust or cheating. Therefore, one is to advert to the fact of the case as to whether there are ingredients for constituting offence of cheating or not ? The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows: “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 persons 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”. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception ? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of any so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that first element of deception constituting an offence of cheating is lacking as it never appears to be the case of complainant that any fraudulent or dishonest inducement was there on the part of the petitioners, rather allegations do disclose that there was a promise which was breached but that breach may not fasten a person with criminal liability. Under the circumstances, I do find that this is not a case of criminal liability and hence, the order dated 30.7.2009 under which prayer for discharge was rejected is hereby quashed. Consequently, the petitioners are discharged from the accusation punishable under Sections 420,120B, 109/34 of the Indian Penal Code. In the result, this application is allowed. Cr.M.P.No.323 of2008 Since the revision application is allowed, no order needs tobe passed in this application.