JUDGMENT :- Heard. Rule made returnable forthwith. Heard finally. 2. The revision-applicants have questioned the conviction recorded by the learned Additional Chief M.M., 40th Court, Girgaon, Mumbai in c.c. no.1943/S/2003, confirmed in Criminal Appeal no. 109 of 2007 by the learned Additional Sessions Judge, Bombay, for an offence under Section 420 r/w. 34 of IPC, sentencing the original accused no. I to pay fine of Rs.5,000/-, original accused no.2 to suffer S.I. till rising of the Court and to pay fine of Rs.3,000/-, in default to suffer S.I. for Fifteen days, original accused nos.3 and 4 to suffer S.I. for six months each and to pay fine of Rs.5,000/- each, in default to suffer S.I. for one month. 3. The parties are referred as Complainant and Accused or as Purchaser and Seller. The complainant was interested in investing in immovable property. The accused were known to the complainant. The complainant agreed to book a flat in proposed building "Benzer Tower" at Asha Nagar, Borivali (East), Mumbai, to be constructed by Accused, for an amount of Rs.7,50,000/-. As per the registered agreement dated 12th January, 1998, accused no. 1 was to complete the construction of the building by May, 1999, however, it could not be completed. An amount of Rs.50,000/-was paid as earnest. The balance was payable as per the schedule mentioned in Clause 4 of the agreement. The accused did not complete the project. In the middle of September, 2003, the complainant caused inquiry in the office of Sub Registrar of Assurances and was shocked to learn that the Accused entered into an agreement with Smt. Annay J. Kancholiya and Shri. Nitin J. Kancholiya, lodged on 20.6.2000 for registration. Flat no.1603 which was agreed to be purchased by the complainant, was sold by the accused to said Smt. Annay and Shri. Nitin. The complainant canvassed that the accused from very inception and with criminal intent wanted to deprive the complainant of his valuable property the flat, which was by virtue of the agreement become of ownership. The accused induced the complainant to enter into the said agreement by giving false representations that to complete the agreement as per the terms mentioned therein. There was no fault on the part of the complainant in compliance of its terms, but the accused have frustrated the faith reposed by the complainant. The accused induced the complainant to enter into the said agreement by giving false representations that to complete the agreement as per the terms mentioned therein. There was no fault on the part of the complainant in compliance of its terms, but the accused have frustrated the faith reposed by the complainant. The accused cheated the complainant and identical manner they have induced other purchasers of the flats in the scheme and duped them by selling those flats to others. The money given by the complainant for carrying the construction, has been utilised by the accused for personal expenditure and misappropriated the money given to them. 4. The evidence illustrates that prior to entering into the agreement referred to above, in the month of October, 1993 one of the accused Nitin Mehta had entered into the negotiations with the complainant and his other relations, each one of them had parted an amount of Rs.50,000/- in favour of the accused towards part payment. The registered agreement was placed in evidence at Exhibit C-2. Possession was to be given within Five years, but the accused failed to comply. There were transactions of more than one flat with odd sale prices. This has been clarified by P.W.2 Jitendra Champaklal Lakhani in his evidence/cross-examination. The said Jitendra had purchased flat nos.A-602, A-603, A- 2101 in the said building under an agreement dated 27.3.1997. He was also cheated. 5. On behalf of the accused Vinay N. Mehta, one of the Directors of Anamika Real Estate Pvt. Ltd. stepped into the witness box. He did not dispute of complainant booking flat in the scheme and receiving of Rs.50,000/ - at the time of booking on total price of Rs.7,50,000/-. He agreed for payment schedule by complainant by installment as mentioned in the agreement i.e. Exhibit C-2, to be paid after completion of slab of each floor. He says, the complainant did not pay any amount after releasing of Rs.50,000/-, and hence, he issued a demand notice. Inspite of such demand notice, the complainant did not pay the amount. A final letter was written for cancellation of agreement. The first such notice is dated 26.11.1997 which was after completion of 13th slab (Exhibit D-2), the first reminder was dated 16.12.1997 (Exhibit D-3), the second reminder was dated 29.12.1997 (Exhibit D-4). Inspite of such demand notice, the complainant did not pay the amount. A final letter was written for cancellation of agreement. The first such notice is dated 26.11.1997 which was after completion of 13th slab (Exhibit D-2), the first reminder was dated 16.12.1997 (Exhibit D-3), the second reminder was dated 29.12.1997 (Exhibit D-4). He has produced other letters canvassing that the first reminder was dated 16.8.1999 (Exhibit D-5), the second reminder was dated 31.8.1999 (Exhibit D-6) and the cancellation notice was dated 20.10. 1999 (Exhibit D-7). He did not dispute that P. W.2 Jitendra Lakhani is the son of complainant who had also booked three flats in the same scheme by remitting Rs. 50,000/each. He did not dispute the contents of the agreement dated 12.1.1998 and agreed that the letters at Exhibits D-2, D-3 and D-4 referred herein above were written prior to execution of the agreement. He confirmed, there is no reference about those letters in the agreement dated 12.1.1998. He confirmed, those letters were not confronted to the complainant during his evidence. 6. Smt. Ingale, the learned Counsel appearing for accused submits that agreement dated I 2.1.1998 is not in dispute. Reading from any angle, the case would amount to be a breach of contract and could not be given colour of cheating. The charge explained by the learned Judge does not make out a case under Section 420 read with Section 34 of IPC. The cancellation notice dated 20.10.1999 was served by D.W. 1 upon the complainant, and consequently, no fault can be attributed to the accused, as there was no false representation, no concealment of facts. She has also canvassed, the revision applicants are entitled for benefits under Section 360(4) r/w. 361 of Cr.P.C. or under the Probation of Offenders Act. She says, there is nothing to demonstrate that the accused could influence the complainant making him vulnerable. The learned Counsel has relied on the judgment in the matter of "B. Suresh Yadav Vs. Sharifa Bee & Anr. [(2007) 13 Supreme Court Cases 107) : [2007 ALL MR (Cri) 3285 (S.C.))". The Hon'ble Supreme Court held, on analysing the facts in the said case, that the dispute between the parties was of civil nature and offence under Section 415/420 amounted to abuse of process of law and consequently, the proceedings warrant quashment in terms of Section 482 of Cr.P.C. 7. The Hon'ble Supreme Court held, on analysing the facts in the said case, that the dispute between the parties was of civil nature and offence under Section 415/420 amounted to abuse of process of law and consequently, the proceedings warrant quashment in terms of Section 482 of Cr.P.C. 7. In the matter "Uma Shankar Gopalika Vs. State of Bihar and another, [(2006) 2 Supreme Court Cases (Cri) 49]", the Hon'ble Supreme Court held, requisites to constitute an offence under Section 420, 120B of IPC would come into play where there was any deception played at the very inception. If the intention to cheat had developed later on, same cannot amount to cheating. 8. In the matter "Devendra Vs. State of U.P., [2009-ACR-3- 3246]", decided on May 6, 2,009, the Hon'ble Supreme Court was dealing with the quashment of criminal proceedings in terms of Section 482 of Cr.P.C., for an offence under Section 420, 467, 468 of IPC. In the said case, sale deeds were executed by the accused. The Apex Court held, if somebody is adversely aggrieved by false assertion, it would be purchaser and not the co-sharer. In the said case, there was already a civil litigation between the parties. The Apex Court has observed that there should have been culpable intention at the inception. 9. The learned Counsel for complainant has canvassed that, this matter has been dragged by the accused before this Court since last two years and on each occasion accused were promising to settle 13 such contracts where the purchasers are cheated or duped, but failed to complete the obligation. The element of cheating in the mind of the accused was prevalent since inception. They have forged the documents dating them back to the agreement of sale and to impress falsely of their so called bona fides. He indicated, when clause 4 of the agreement indicates payment as per the slab, and the notice at Exhibit D-2 refers of 13th slab completed, same should have been reflected in the agreement. In the agreement conspicuously there was no reference of completion of any slab, least upto 13th floor. 10. In order to resolve the controversy, indeed several meetings were ensued before this Court, certain offers were given by the complainant, however, for the reasons best known, accused dodged the offers successfully, killed the time and even misinterpreted to his volition of the proposed terms. 11. 10. In order to resolve the controversy, indeed several meetings were ensued before this Court, certain offers were given by the complainant, however, for the reasons best known, accused dodged the offers successfully, killed the time and even misinterpreted to his volition of the proposed terms. 11. The legal position in respect of offence of cheating is quite clearly discussed in several pronouncement of the Apex Court. The following ingredients are imperative:- "(i) Deception of a person either by making a false or misleading representation or by other action or omission; (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." For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. If there is absence of culpable intention at the time of making promise, naturally no offence under Section 420 of IPC can be said to have been made out. 12. Based on this legal position, let us analyse the effect of Section 24 of IPC which contemplates 'whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Section 25 illustrates, a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 13. It is also well recognized principle that a criminal prosecution cannot be a thwart merely because civil proceedings are also maintainable. The basic theme in the matter is 'whether ingredients of offence under Section 420 of IPC are flowing in the complaint, in the conduct of the accused and the intention since inception. 14. In the instant case, the agreement in clause 30 provides that any notice by either of the parties should be served to the flat purchasers by registered post AD or under certificate of posting at the given address. The letters referred by the defence indicated hereinabove, do not comply any requisition mandated in clause 30 of the agreement. 14. In the instant case, the agreement in clause 30 provides that any notice by either of the parties should be served to the flat purchasers by registered post AD or under certificate of posting at the given address. The letters referred by the defence indicated hereinabove, do not comply any requisition mandated in clause 30 of the agreement. The intimations dated 26.11.1997 (Exhibit D-2), 16.12.1997 (Exhibit D-3), 29.12.1997 (Exhibit D-4), 16.8.1999 (Exhibit D-5), 31.8.1999 (Exhibit D-6) and 20.10.1999 (Exhibit D-7), have rightly been negated by both the Courts. While issuing so called notices, the accused allegedly demanded Rs. 4,20,000/- which he could not do so as the agreement it self has come into operation subsequent to the letters at Exhibits D-2, D-3 and D-4. These intimations, to which reference is given by the accused in his evidence, were not confronted to the complainant during the evidence. Sending of these communications by D.W.1 by ordinary post, has raised eyebrows and apparently it is figment created by the accused to wriggle out the responsibilities and to create clouds to the conduct demonstrated by them. In the agreement dated 12.1.1998, there is no reference of completion of 13 slabs or liability of payment of Rs.4,20,000/-, on the other hand, the agreement provides that construction was yet to be commenced and earnest was received as Rs.50,000/-. The intention of the accused to cheat and deceive the complainant is, thus, generated from the inception as the agreement is dated 12.1.1998, but false and fabricated pre-dated documents were created to make a show of bona fides on the part of the accused. The building was to be completed by May, 1999 of 23 stories. It was not completed even by the end of 1999. If this was so, there could not be demand of installments upto 14 slabs. The accused had transaction with complainant and his relations from 1993 of receiving the earnest amount. The accused did not complete project, on the contrary, sold the property in the year 2000 which even at that stage was incomplete. The accused had intention to dupe since inception as he knew he will not be able to complete the project, still he obtained amount of Rs.50,000/- each and created false record of communication, to avoid responsibilities of cheating or fraudulent ways of behaviour. The accused had intention to dupe since inception as he knew he will not be able to complete the project, still he obtained amount of Rs.50,000/- each and created false record of communication, to avoid responsibilities of cheating or fraudulent ways of behaviour. There was misrepresentation from the very beginning on the part of the accused which is a sine qua non for constitution of offence of cheating. The complainant has been induced fraudulently to deliver Rs.50,000/- to the accused. The second conduct of the accused is deliberately omitting to do the construction and subsequently selling of the property. The inducement was fraudulent, associated with the dishonest intention. In the later conduct, the inducement was intentional and associated with dishonest colour. The common intention is shared by all the accused. 15. The survey of the above facts does not call for interference to the conviction recorded against the accused/revision applicants. Rule discharged. Revision dismissed. The accused to surrender. Revision dismissed.