Karnataka High Court
M. Cheluviah vs Smt. Amruthamma on 20 August, 2004
Equivalent citations: 2004CRILJ4564, 2004 CRI. L. J. 4564, 2004 AIR - KANT. H. C. R. 3142, (2005) 1 RECCRIR 661, (2005) 1 ALLCRILR 418
ORDER Mohan Santhanagoudar, J.
1. By the impugned order , the Sessions Court has set aside the order passed by the learned Magistrate of issuing process against the respondent herein.
2. The records disclose that the petitioner herein lodged the complaint inter alia contending that he agreed to purchase six items of the properties from the respondent for Rs. 12,50,000/-. The respondent has already sold five items of the properties, except Item No. 3 shown in the schedule annexed to the complaint. The complaint also discloses that an amount of Rs. 1,13,000/- is due by him to be paid to the respondent. The contention of the petitioner is that, as the respondent has refused to sell the aforesaid property to the petitioner as agreed to between the parties, she has committed the offence of criminal breach of trust and cheating etc.. Based on these allegations, the complaint was lodged by the petitioner before the Magistrate's Court, Malavalli in P.C.R. No. 42/ 2002 praying the said Court to prosecute the respondent for the offences punishable under Sections 109. 110, 406, 417, 418, 420 and 423 of IPC. The learned Magistrate by the order dated 1-7-2002 issued process against the respondent. The said order was assailed by the accused-respondent herein before the Sessions Court, Mandya, by filing Criminal Revision Petition No. 95/2002. The learned Sessions Judge, by holding that it is purely a case of breach of agreement, allowed the revision petition and consequently , dismissed the complaint.
3. The learned counsel for the petitioner contended that the facts on record clearly disclose the criminal intention on the part of the respondent to cheat and to misappropriate the amounts paid by the petitioner to the respondent and consequently, he submitted that the respondent is liable to be prosecuted for the aforesaid offences. On the other hand, learned counsel for the respondent argued in support of the order passed by the Court below.
4. It is well settled that every breach of trust may not result in criminal breach of trust unless there is evidence showing act of fraudulent misappropriation. The act of breach of trust involves a civil wrong, in which a person who is aggrieved, may seek redressal for damages in Civil Court, but a breach of trust with mens rea gives rise to criminal prosecution. So also 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. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making promise.
5. In this case, admittedly out of six properties, five properties are sold by the respondent in favour of the petitioner. This it self goes to show prima facie that there is no malice on the part of the respondent to cheat or misappropriate the amount. It is also not in dispute that the amount of Rs. 1,13,000/- is still due by the petitioner to the respondent. The aforesaid facts would go to show that the respondent does not have intention to cheat or misappropriate. The dispute between the parties is civil in nature. This is a clear case of non-performance of the contract on the part of the respondent with regard to sale agreement. Thus, in my view, the Sessions Court has rightly concluded that no ingredients are found in the complaint and sworn statements to initiate proceedings against the respondent herein. It is not in dispute that the petitioner has filed O.S. No. 120/2002 before the Civil Court (Sr. Dn.), Maddur, for specific performance of the contract. On going through the material on record, I do not find any reason to interfere in the order passed, by the Court below. Petition is therefore rejected.