Gauhati High Court
Crl.Pet./485/2013 on 5 March, 2025
GAHC010091742013
2025:GAU-AS:2337
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL PETITON NO.485 OF 2013
1. Mustt Tara Banu
W/ o- Yusuf Ali Miya
R/ o village- Salbari
P.O, P.S. & District- Bongaigaon,
Assam.
2. Md. Manuruddin
S/ o- Late Kitab Ali
R/ o village- Dolaigaon
District- Bongaigaon, Assam
.......Petitioners
-Versus-
1. The State of Assam.
2. Md. Siraful Hussain
S/ o- Late Yakub Ali,
R/ o- Guru Nanak Nagar, Ward
No. 13, P.O, P.S. & District-
Bongaigaon, Assam .
.......Respondents
Page 1 of 13
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. D. Choudhury, Advocate.
For the Respondent(s) : Ms. S. H. Borah, Additional Public
Prosecutor.
Mr. K. Sarma, Advocate for respondent
No.2.
Date of Hearing : 05.03.2025 .
Date of Judgment : 05.03.2025 .
JUDGMENT & ORDER (ORAL)
Heard Mr. D. Choudhury, learned Counsel for the
petitioner. Also heard Ms. S. H. Borah, learned Additional
Public Prosecutor for the State respondent and Mr. K.
Sarma, learned Counsel for respondent No.2.
2. By way of this application under Section 482, read
with Section 401 of the Code of Criminal Procedure, 1973,
(hereinafter referred to as “Cr.P.C.”) the petitioner is
seeking setting aside and quashing of the impugned order
dated 28.01.2013 passed by the learned Judicial
Magistrate, First Class, Bongaigaon in G.R. Case No.
597/ 2012, whereby charges under Section 406/ 420/ 34 of
I ndian Penal Code (hereinafter referred to as “I PC”) were
framed against the petitioners.
3. The facts of the case is that the petitioner No.1
being the owner and possessor of the land in question, had
entered into an agreement for sale for Rs. 8,00,000/ –
(rupees eight lakhs) only with the respondent No.2 and
Page 2 of 13
pursuant to the aforesaid agreement to sale, the
respondent No.2 paid an amount of Rs. 30,000/ – (rupees
thirty thousand) only and Rs. 1,50,000/ -, (rupees one lakh
fifty thousand) only totaling to Rs. 1,80,000/ – (one lakh
eighty thousand) only as earnest money. I t is the specific
case of the respondent No.2 that during subsistence of the
aforesaid agreement, the petitioner No.1 sold the subject
land to the petitioner No.2 by executing registered sale
deed. Accordingly, an FI R was lodged on 16.10.2012 which
was registered as Bongaigaon P.S. Case No. 365/ 2012,
under Section 406/ 420/ 34 of I PC.
4. After investigation, Charge-sheet was submitted
and thereafter the learned trial Court on 28.01.2013
framed charges under Section 406/ 420/ 34 of I PC against
the petitioners. Aggrieved by the aforesaid order of the
learned trial Court, the present criminal petition has been
filed for setting aside and quashing the aforesaid order
dated 28.01.2013.
5. Mr. D. Choudhury, learned Counsel for the
petitioners submits that the case is purely a case of breach
of agreement and thus, the petitioners are entitled to be
discharged. I n support of the aforesaid submission, he
relies upon the decision of the Apex Court in the case of
Kunti and Another Vs State of Uttar Pradesh and
Another, reported in 2023 6 SCC 109.
6. Per contra, Mr. K. Sarma, learned Counsel for the
respondent No.2 submits that the allegation in the FI R and
Page 3 of 13
Charge-sheet clearly makes out a criminal case against the
petitioners and as such, the order impugned in the petition
warrants no interference from this Court under Section 482
of Cr.P.C. He further submits the power of the High Court
under Section 482 of Cr.P.C. for quashing criminal
proceeding should be exercised sparingly in rarest of rare
cases. I n support of the aforesaid submission, he relies
upon the decision of the Apex Court in the case of State
of Haryana and Others Vs Bhajan Lal and Others,
reported in 1992 Supp(1) Supreme Court Cases 335.
7. I have heard the submissions made by both the
learned Counsels appearing for the contending parties and
perused the material available on record. I have also
considered the case laws cited at the bar.
8. Apt at this stage to refer to the FI R dated
16.10.2012, which is reproduced hereunder for ready
reference:
“To
The Respected Officer-in-charge
North Bongaigaon PP.
Sub. Ejahar
Sir,
With due respect, beg to state that on last
09/03/2012 with a view to purchase the land
measuring 15 lechas situated at Salbari
belongs to the below named accused No.1,
agreed to purchase the same for
Rs.8,00,000/- (Rupees Eight Lakh) and
entered into an agreement and also paid an
amount of Rs.30,000/- (Rupees Thirty
Thousand) only and Rs.1,50,000/- (RupeesPage 4 of 13
One Lakh Fifty Thousand) only totaling to
Rs.1,80,000/- (Rupees One Lakh Eighty
Thousand) only as earnest money. During
subsistence of the aforesaid contract, on
06/10/2012, the accused person sold the
aforesaid land to the accused No.2 by
executing registered sale deed. Such act of the
accused No.1, 2 & 3 caused substantial
damage to the informant.
Therefore, humbly request before your Honor
to investigate into the matter and to take
necessary action.
Name and Address of the Accused
1. Mustt Tara Banu
Wife of Yusuf Ali.
village-Dolaigaon
P.S.Bongaigaon.
2. Md Mahammad Jan
Son of unknown,
Village – Salbari
P.S. Bongaigaon.
3. Manaruddin
Son of unknown,
Village Dolaigaon
P.S. BongaigaonNB: Enclosed herewith the copy of the
agreement.
Yours faithfully
Sd/-Siraful Hussain
Son of Late Yakub Ali
Village- Gurunanak Nagar,
P.S. Bongaigaon
M/No.970627581″
9. Thereafter, it appears that the case was
investigated and Charge-sheet was filed after recording
statement of the witnesses. Relevant portion of the
Charge-sheet is extracted hereunder for ready reference:
Page 5 of 13
“The breif facts of the case is that on
16/10/2012, the informant, namely, Md
Siraful Hussain son of Late Yakub Ali of Guru
Nanak Nagar, P.S. & District Bongaigaon,
Assam lodged a written FIR stating that on
last 09/03/2012 the informant with a view to
purchase the land measuring 15 lechas
situated at Salbari belongs to the accused
No.1 agreed to purchase the same for
Rs.8,00,000/- (Rupees Eight Lakh) and
entered into an agreement and also paid an
amount of Rs.30,000/-(Rupees Thirty
Thousand) only and Rs.1,50,000/-(Rupees
One Lakh Fifty Thousand) only totaling to
Rs.1,80,000/- (Rupees One Lakh Eighty
Thousand) only as earnest money to the
accused No.1, Mustt Tara Banu. During
subsistence of the aforesaid contract, on
06/10/2012, the accused person sold the
aforesaid land to the accused No.2 by
executing registered sale deed. As it is alleged
in the FIR that due to such purchase and sale
by the Tara Banu, Manuruddin and
Mahammad Jan, substantial damage has
been caused to the informant, case u/s
406/420/34 IPC was registered and
investigated.
During the course of investigation visited the
place of occurrence and recorded the
statements of the witnesses. As per statement
of the witnesses, the offences u/s
406/420/34 is established against the
arrested accused person Mustt Tara Banu,
wife of late Yusuf Ali Miya of vivekananda
Nagar palli near Ma kali Hotel, PS & district –
Bongaigaon, and MD Manoruddin, son of Late
Kitab Ali of Dolaigaon, P.S. & District –
Bongaigaon, Assam, P/A Rawmari, Odalguri,
P.S. Dhaligaon, district Chirang, BTAD, Assam
and accordingly submitted the charge sheet
before the Hon’ble court. The witnesses
mentioned in the column No.6 will prove the
case. There is no sufficient evidence against
the FIR named accused Md. Mahammad Jan,
son of Md Manir of salbari, P.S & DistrictPage 6 of 13
Bongaigaon and hence prayed before the
Hon’ble Court to discharge him from the case.
Along with the charge sheet, a copy of the
seizure list, a copy of the GDE extract copy
and a photocopy of the sale is enclosed.”
10. I t appears that pursuant to submission of Charge-
sheet the trial Court by order dated 28.01.2013 framed
charges under Section 406/ 420/ 34 of I PC against the
petitioners. The order dated 28.01.2013 is also extracted
hereunder for ready reference:
“ORDER SHEET FOR MAGISTRATE’S RECORDS
G.R. NO.597/2012
State-Vs-Tara Banu & AnrDate Order Signature
28/01/2013:
Accused persons are present. Copy is
furnished to the accused, which are
received. Upon perusal of C.R. and
C.S. it transpires that there is a prima
facie case u/s 406/420/34 IPC
against the accused persons.
Accordingly, charges u/s 406/420/34
IPC are framed against the accused
persons, which is read over to the
accused persons. They pleaded not
guilty and claimed to be tried. Issue
summons to PWs.
Fixed on 28/02/2013 for evidence.
Sd/-illegible
Judicial Magistrate 1st class
District-Bongaigaon.”
11. A reading of the aforesaid order indicates that the
learned trial Court after perusing the case record and
Charge-sheet was satisfied that a prima-facie case under
Section 406/ 420/ 34 of I PC is made out against the
Page 7 of 13
petitioners and accordingly, framed charges against them.
Undoubtedly, the learned trial Court is not required to go
to the sufficiency of the materials at the stage of framing
charge, however, if the material brought on record by the
prosecution, which prosecution proposes to adduce to
prove the guilt of accused, even if fully accepted before it
is challenged in cross-examination or rebutted by defence
evidence, cannot show that the accused committed the
offence, the accused is entitled to discharge.
12. Reference is made to the decision of the Apex
Court in the case of M.E. Shivalingamurthy Vs.
Central Bureau of Investigation, Bengaluru,
reported in ( 2020) 2 SCC 768. Paragraph 17 and 18 of
the aforesaid judgment is reproduced hereunder for ready
reference:
“17. This is an area covered by a large body of
case law. We refer to a recent judgment which has
referred to the earlier decisions viz. P. Vijayan v.
State of Kerala and discern the following
principles:
17.1. If two views are possible and one of them
gives rise to suspicion only as distinguished from
grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to
frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in
order to find out whether or not there is sufficient
ground for proceeding. Evidence would consist of
the statements recorded by the police or the
documents produced before the Court.
17.4. If the evidence, which the Prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged in cross-examination or rebutted by the
defence evidence, if any, ‘cannot show that thePage 8 of 13
accused committed offence, then, there will be no
sufficient ground for proceeding with the trial’.
17.5. It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6. The court has to consider the broad
probabilities, the total effect of the evidence and the
documents produced before the court, any basic
infirmities appearing in the case and so on. This,
however, would not entitle the court to make a
roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the
probative value of the material on record cannot be
gone into, and the material brought on record by
the prosecution, has to be accepted as true.
17.8. There must exist some materials for
entertaining the strong suspicion which can form
the basis for drawing up a charge and refusing to
discharge the accused.
18. The defence of the accused is not to be looked
into at the stage when the accused seeks to be
discharged under Section 227 CrPC (see State of
J&K v. Sudershan Chakkar¹). The expression, ‘the
record of the case’, used in Section 227 CrPC, is to
be understood as the documents and the articles, if
any, produced by the prosecution. The Code does
not give any right to the accused to produce any
document at the stage of framing of the charge. At
the stage of framing of the charge, the submission
of the accused is to be confined to the material
produced by the police (see State of Orissa v.
Debendra Nath Padhi).”
13. I n the case in hand it is clear from the material
available on record that the petitioner No.1 entered into an
agreement to sell the subject land to the respondent No.2
for a sum of Rs. 8,00,000/ – and pursuant to the terms and
conditions of the aforesaid agreement, the respondent
No.2 paid Rs. 1,80,000/ – in total as earnest money to the
petitioner No.1. However, the petitioner No.1 during
subsistence of the said agreement sold the subject land to
the petitioner No.2 by executing registered sale deed. The
Page 9 of 13
learned trial Court accordingly, framed charges under
Section 406/ 420/ 34 of I PC against the petitioners.
14. I t 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 an
aggrieved person is entitled to seek recourse in suit for
damages or specific performance of contract.
15. I n order to constitute an offence of cheating
under Section 415 of the I PC, there has to be a dishonest
intention from the very beginning which is sine-qua-non to
hold the accused guilty for commission of the said offence.
The offence of cheating is established when the accused
thereby induces that person to deliver any property or to
do or to omit to do something which he would otherwise
not have done or omitted. Thus, 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.
16. Reading of the material available on record does
not indicate the allegation of initial inducement and
deception. I n fact, it is stated in the FI R that because of
the alleged act of the petitioner No.1, substantial damage
has been caused to the respondent No.2. Further, the
materials produced by the prosecution does not indicate
that the petitioners had fraudulent or dishonest intention
right from the beginning of the transaction nor there is
Page 10 of 13
anything to show that the petitioners had committed an act
of fraudulent misappropriation. That being so, no case of
cheating under Section 420 of I PC can be said to be made
out in the face of the material available on record.
17. Pertinent that under the terms and conditions of
the agreement to sale in question, it appears that the
petitioner No.1 due to her urgent need of money entered
into the agreement to sale with the respondent No.2. I t
further appears that under clause 12 and 13 of the terms
and conditions of the said agreement both the parties were
required to perform their obligation in order to effectuate
the sale within a time frame.
18. I t appears that the dispute involved in the instant
case is essentially civil in nature. Therefore, it is a clear
case of non-performance of contract on the part of
petitioner No.1 with regard to sale agreement, which does
not give rise to criminal proceeding. Merely on the
allegation of failure to keep a promise will not be enough
to initiate criminal proceeding. Reference is made to the
decision of the Apex Court in the case of Kunti and
another (Supra). Paragraphs 10, 11 and 12 of the
aforesaid judgment are reproduced hereunder for ready
reference:
“10. A two judge bench of this Court in ARCL
v. Nimra Cerglass Technics (P) Ltd., (2016) 1.
scc 348, while deliberating upon the difference
between mere breach of contract and the
offence of cheating, observed that the
distinction depends upon the intention of the
accused at the time of the alleged incident. If
dishonest intention on part of the accused canPage 11 of 13
be established at the of time of entering into
the transaction with the complainant, then
criminal liability would be attached.
11. In Vijay Kumar Ghai v. State of W.B (2022)
7 scc 124, one of us, (Krishna Murari J.,)
observed in reference to earlier decisions as
under:
’24. This Court in G. Sagar Suri v. State of U.P. [G.
Sagar Suri v. State of U.P., (2000) 2 scc 636: 2000 scc
(Cri) 513] observed that it is the duty and obligation of
the criminal court to exercise a great deal of caution in
issuing the process, particularly when matters are
essentially of civil nature.
25. This Court has time and again cautioned about
converting purely civil disputes into criminal cases.
This Court in Indian Oil Corpn. [Indian Oil Corpn. v.
NEPC India Lid., (2006) 6 scc 736: (2006) 3 scc (Cri)
188] noticed the prevalent impression that civil law
remedies are time consuming and do not adequately
protect the interests of lenders/creditors. The Court
further observed that: (Indian Oil Corpn. Case [Indian
Oil Corpn. v. NEPC India Ltd., (2006) 6 scc 736:
(2006) 3 scc (Cri) 188], scc p. 749, para 13)’
’13. ….. Any effort to settle civil disputes and claims,
which do not involve any criminal offence, by applying
pressure through criminal prosecution should be
deprecated and discouraged.’
12. Having regard to the above well-
established principles and also noting that the
present dispute is entirely with respect to
property and more particularly buying and
selling thereof, it cannot be doubted that a
criminal hue has been unjustifiably lent to a
civil natured issue.”
19. The contention of the learned Counsel for
respondent No.2 as regards exercise of this Court’s power
under Section 482 of Cr.P.C. to the exercise sparingly in
the rarest of rare cases has to be applied in the facts and
circumstances of each case. I n the facts and circumstances
of the present case, no criminal offence being made out on
the face of the material available on record, the order of
the learned Judicial Magistrate, First Class, Bongaigaon, in
Page 12 of 13
G.R. Case No. 597/ 2012 framing charges under Section
406/ 420/ 34 of I PC against the petitioners is not justified.
Therefore, continuance of further proceeding is
unsustainable.
20. Accordingly, the impugned order dated
28.01.2013 passed by the learned Judicial Magistrate, First
Class, Bongaigaon, in G.R. Case No. 597/ 2012 is set aside
and quashed.
21. Resultantly, subsequent orders passed by the
learned trial Court and further proceedings are also
quashed.
22. The criminal petition accordingly, stands allowed.
JUDGE
Comparing Assistant
Page 13 of 13
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