2025:HHC:18000 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 1232 of 2024 Reserved on: 09.05.2025 Date of Decision: 06.06.2025. Riyaz Mohd ...Petitioner Versus Khem Raj & another ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Mr. Sarthak Mehta, Advocate. For the Respondents/State : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of order dated 01.09.2022, passed by the learned Judicial Magistrate First Class, Sirmour at Nahan, H.P. (learned Trial Court) and the proceedings pending against the petitioner (accused before the learned Trial Court). (The parties shall hereinafter be referred to in the same manner as they are arrayed before the learned Trial Court for convenience.) 2 2025:HHC:18000 2. Briefly stated, the brief facts giving rise to the present petition are that the complainant filed a complaint asserting that he intended to purchase the land. The accused showed him some land. The complainant paid an amount of ₹4,30,000/-against the total consideration of ₹6,00,000/-. The complainant requested the Patwari to prepare a Tatima of the land shown by the accused. Patwari visited the spot on 01.03.2018 and disclosed that the land did not belong to the accused. The land of the accused bearing Khasra No. 370/196/86 and 384/198/47, measuring 189-02 bighas, was located at a distance of ½ KM from the land shown by the accused. Patwari also mentioned that the land shown by the accused belonged to the Department of Industries. The accused made a false representation to the complainant and induced the complainant to pay the money. The complainant requested the accused to return the money; however, he failed to do so. Hence, a complaint was filed before the learned Trial Court to take action as per the law. 3. Learned Trial Court recorded the preliminary evidence and ordered the issuance of summons vide order dated 01.09.2022. 3 2025:HHC:18000 4. Being aggrieved by the order passed by the learned Trial Court and the filing of the complaint, the accused has filed the present petition asserting that the complainant filed a civil suit against the accused before the learned Senior Civil Judge, Sirmour at Nahan, H.P., which was decided in favour of the complainant on 20.01.2023. An appeal was filed against the judgment and decree passed by the learned Senior Civil Judge, Sirmour at Nahan, H.P., but decided in favour of the complainant on 04.12.2023. A regular second appeal is pending adjudication before this Court. The allegations in the complaint do not show the commission of any cognizable offence. The continuation of the proceedings amounts to an abuse of the process of the law. Therefore, it was prayed that the present petition be allowed and the complaint and the order passed by the learned Trial Court be quashed. 5. I have heard Mr. Sarthak Mehta, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for respondent No.2-State. 6. Mr. Sarthak Metha, learned counsel for the petitioner, submitted that allegations made in the complaint do 4 2025:HHC:18000 not disclose the commission of cognizable offence. The complainant had also filed a civil suit regarding the same matter, which was decreed by the learned Senior Civil Judge, Senior Division, Sirmour at Nahan, H.P. This order was upheld by the learned Appellate Court. A Regular Second Appeal (RSA) is pending before this Court. Since the subject matter of the litigation is the same, therefore, the continuation of the proceedings before the learned Trial Court amounts to an abuse of process of the law. He prayed that the present petition be allowed and the order passed by the learned Trial Court and the proceedings pending against the petitioner before the learned Trial Court be quashed. 7. Mr. Lokender Kutlehria, learned Additional Advocate General for respondent No.2 submitted that the allegations in the complaint show that a different land was shown to the complainant, and he was induced to pay money to the accused. This land was found to be owned by the Department of Industries, whereas the land of the accused was located at a distance. The necessary ingredients of the commission of an offence punishable under Section 420 of the Indian Penal Code (IPC) are duly satisfied. Mere pendency of the civil litigation 5 2025:HHC:18000 does not mean that criminal proceedings cannot be continued. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. The law relating to quashing of criminal cases was explained by the Hon’ble Supreme Court in B.N. John v. State of U.P., 2025 SCC OnLine SC 7 as under: - “7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein this Court has summarized some of the principles under which FIR/complaints/criminal cases could be quashed in the following words: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 6 2025:HHC:18000 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7 2025:HHC:18000 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a private and personal grudge.” (emphasis added) 8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case. In clause (1) it has been mentioned that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, then the FIR or the complaint can be quashed. As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed. Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceedings can be quashed.” 10. This position was reiterated in Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185, wherein it was observed: “8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for 8 2025:HHC:18000 invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice. 9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out; (iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335). 11. It was held in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699: 1977 SCC (Cri) 404 that the High Court can quash the criminal proceedings if they amount to an abuse of the process of the Court. It was observed on page 703: “7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose, which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very 9 2025:HHC:18000 nature of the material on which the structure of the prosecution rests, and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law, though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 12. The term abuse of the process was explained in Chandran Ratnaswami v. K.C. Palanisamy, (2013) 6 SCC 740: (2014) 1 SCC (Cri) 447: 2013 SCC OnLine SC 450 at page 761: 33. The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is a well- established and recognised doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be an abuse of the process of the court. 34. Lord Morris in Connelly v. Director of Public Prosecutions [1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2 All ER 401 (HL)], observed: (AC pp. 1301-02) “There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. … A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. *** The power (which is inherent in a court's jurisdiction) to prevent abuses of its process and to control its 10 2025:HHC:18000 procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice.” In his separate pronouncement, Lord Delvin in the same case observed that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. 35. In Hui Chi-ming v. R. [(1992) 1 AC 34 : (1991) 3 WLR 495 : (1991) 3 All ER 897 (PC)], the Privy Council defined the word “abuse of process” as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case. 36. In the leading case of R. v. Horseferry Road Magistrates' Court, ex p Bennett [(1994) 1 AC 42 : (1993) 3 WLR 90 : (1993) 3 All ER 138 (HL)], on the application of the abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of the process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 37. In R. v. Derby Crown Court, ex p Brooks [(1984) 80 Cr App R 164 (DC)], Lord Chief Justice Ormrod stated: “It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable.” 11 2025:HHC:18000 38. Neill, L.J. in R. v. Beckford (Anthony) [(1996) 1 Cr App R 94: 1995 RTR 251 (CA)], observed that: “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless, two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried.” What is unfair and wrong will be for the court to determine on the individual facts of each case. 13. It was held in Mahmood Ali v. State of U.P., (2023) 15 SCC 488: 2023 SCC OnLine SC 950 that where the proceedings are frivolous or vexatious, the Court owes a duty to quash them. However, the Court cannot appreciate the material while exercising jurisdiction under Section 482 of the CrPC. It was observed at page 498: 13. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, try to read in between the lines. The Court, while exercising its jurisdiction under Section 482CrPC or Article 226 of the Constitution, need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take, for instance, the case at hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances that the registration of multiple FIRs assumes importance, thereby attracting the issue of 12 2025:HHC:18000 wreaking vengeance out of private or personal grudge, as alleged. 14. State of A.P. v. Golconda Linga Swamy [State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522: 2004 SCC (Cri) 1805], a two-judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held : (Golconda Linga Swamy case [State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522: 2004 SCC (Cri) 1805], SCC p. 527, paras 5-7) “5. … Authority of the court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent the promotion of justice. In the exercise of its powers court would be justified in quashing any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of the court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out, even if the allegations are accepted in toto. 6. In R.P. Kapur v. State of Punjab [R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21: AIR 1960 SC 866], this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (SCC OnLine SC para 6) 13 2025:HHC:18000 (i) where it manifestly appears that there is a legal bar against the institution or continuance, e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether, on a reasonable appreciation of it, the accusation would not be sustained. That is the function of the trial Judge. The judicial process, no doubt, should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing the process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.” (emphasis supplied) 14. It was held in Minu Kumari v. State of Bihar, (2006) 4 SCC 359: (2006) 2 SCC (Cri) 310: 2006 SCC OnLine SC 417 that the High Court should refrain from giving a prima facie opinion 14 2025:HHC:18000 when the facts are hazy and the evidence has not been collected. It was observed on page 366: “20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide, and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in the exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305: 1993 SCC (Cri) 36] and Raghubir Saran (Dr.) v. State of Bihar [(1964) 2 SCR 336: AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] 15. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 16. Learned Trial Court ordered the issuance of the summons against the accused for the commission of offences punishable under Section 420 of the IPC. The ingredients of cheating were explained by the Hon’ble Supreme Court in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168: 15 2025:HHC:18000 2000 SCC (Cri) 786: 2000 SCC OnLine SC 636, and it was observed at page 176: 13. Cheating is defined in Section 415 of the Code as: “415. 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 person 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’. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” The section requires— (1) deception of any person; (2)(a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person 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. 14. 14. On a reading of the section, it is manifest that in the definition, there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, 16 2025:HHC:18000 the inducement must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but for this, subsequent conduct is not the sole test. 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, that is, the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up his promise, subsequently, such a culpable intention right at the beginning, that is, when he made the promise, cannot be presumed. 17. This position was reiterated in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241, wherein it was observed as under: “10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person 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; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 17 2025:HHC:18000 SCC 168: 2000 SCC (Cri) 786] on facts of that case, has expressed thus: (SCC p. 177, para 15) “15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but this subsequent conduct is not the sole test. 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, that is, the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up a promise, subsequently such a culpable intention right at the beginning, that is, when he made the promise, cannot be presumed.” (emphasis supplied) 12. Finding that the ingredients of the offence of cheating and its allied offences had not been made out, this Court interfered with the order of the High Court and quashed the criminal proceedings. 13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC (Cri) 733], this Court in para 7 has stated thus: (SCC pp. 696-97) “7. As mentioned above, Section 415 has two parts. While in the first part, the person must ‘dishonestly’ or ‘fraudulently’ induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement 18 2025:HHC:18000 should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116], a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure the conviction of a person for the offence of cheating, ‘mens rea’ on the part of that person must be established. It was also observed in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri LJ 1806] that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.” (emphasis supplied) 14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC 686: 2000 SCC (Cri) 47] dealing with the effect of existence of arbitration clause in the agreement on criminal prosecution on the ground that civil proceedings are also maintainable, this Court has held that quashing of FIR or a complaint exercising power under Section 482 CrPC should be limited to a very extreme exception; merely because an act has a civil profile is not enough to stop action on the criminal side. It is further held that a provision made in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act constitutes a criminal offence. 18. A similar view was taken in G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 as under: “4. Cheating” is defined in Section 415 of the Penal Code, 1860, which provides as under: “415. 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 person shall retain 19 2025:HHC:18000 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’. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 5. The High Court quashed the proceedings principally on the ground that Chapter XVII of the Penal Code, 1860 deals with the offences against properties and, therefore, Section 415 must also necessarily relate to the property which, in the instant case, is not involved and, consequently, the FIR was liable to be quashed. The broad proposition on which the High Court proceeded is not correct. While the first part of the definition relates to property, the second part does not necessarily relate to property. The second part is reproduced below: “415. … 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’.” 6. This part speaks of intentional deception, which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such an act or omission should have caused damage or harm to the body, mind, reputation or property. 20 2025:HHC:18000 7. As mentioned above, Section 415 has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483], a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure the conviction of a person for the offence of cheating, “mens rea” on the part of that person must be established. It was also observed in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri LJ 1806] that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. 8. Thus, so far as the second part of Section 415 is concerned, “property”, at no stage, is involved. Here, it is the doing of an act or omission to do an act by the complainant as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property. In an old decision of the Allahabad High Court in Empress v. Sheoram [(1882) 2 AWN 237], it was held by Mahmood, J.: “That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415.” 21 2025:HHC:18000 19. A similar view was taken in Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690, wherein it was observed: Similarly, in respect of an offence under Section 420 IPC, the essential ingredients are: (1) Deception of any person, either by making a false or misleading representation or by other action or by omission; (2) Fraudulently or dishonestly inducing any person to deliver any property, or (3) The 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 (see: Harmanpreet Singh Ahluwalia v. State of Punjab [Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712: (2009) 3 SCC (Cri) 620]). 37. Further, in both the aforesaid sections, mens rea, i.e. intention to defraud or dishonest intention, must be present, and in the case of cheating, it must be there from the very beginning or inception. 20. Therefore, it is to be determined whether these ingredients are satisfied by the allegations contained in the complaint or not. 21. It was specifically asserted in the complaint that the accused showed the land belonging to the Department of Industries and thereby induced the complainant to pay the money to him. The patwari reported that the land owned by the accused was located at a distance. These allegations, prima facie, 22 2025:HHC:18000 show that a false representation was made by the accused to the complainant, and the complainant was induced to pay money to the accused based upon this representation. 22. A heavy reliance was placed upon the report submitted by the police, in which it was mentioned that the land of the accused was located at some distance and the accused was ready to sell that land to the complainant. There was no evidence to show that the land mentioned by the complainant was shown to him, and it was a civil dispute. This report mentions that police had associated the parties and relied upon the statement of the accused. Since the defence of the accused is not to be seen at this stage of summoning him1, therefore, this report will not assist the accused. Further, the complaint specifically mentions that Parveen Kumar and Yashpal were present on the spot when the land was shown to the complainant, however, no reference was made to their statements in the report submitted by the police. Moreover, the accused has also not filed the complete report containing the statements of Parveen Kumar and Yashpal, therefore, there is nothing to show that they had not supported the version of the 1 Anil Saran v. State of Bihar, (1995) 6 SCC 142 23 2025:HHC:18000 complainant and not much advantage can be derived from the report submitted by the police. 23. It was submitted that mere breach of contract does not amount to fraud. There can be no dispute with this proposition of law, however, the complainant is not alleging any breach of contract, but he is asserting that a different land was shown to him and he was induced to pay money to the accused based upon such representation. Hence, it is not a case of breach of contract but a case of misrepresentation made by the accused. 24. It was submitted that the civil suit was filed regarding the same transaction, which was dismissed. This dismissal was upheld by the learned Appellate Court, and the matter is pending adjudication before this Court. The petitioner has not filed the certified copies of the plaint, written statement, and the judgments to show that the civil suit was filed regarding the misrepresentation and this plea was negated by the Civil Court. Therefore, no advantage can be derived from this plea. 24 2025:HHC:18000 25. Professor Glanville Williams explained in his celebrated book Learning the Law (Tenth Edition, Stevens and Sons) that the facts by themselves cannot determine civil or criminal liability. The same set of facts may give rise to criminal or civil liability. The distinction between the two is not the nature of the act but the nature of the proceedings that are taken to seek redressal. It was observed: “The distinction between a crime and a civil wrong, though capable of giving rise to some difficult legal problems, is in essence quite simple. The first thing to understand is that the distinction does not reside in the nature of the wrongful act itself. This can quite simply be proved by pointing out that the same act may be both a crime and a civil wrong. Occasionally, at a bus station, there is someone who makes a living by looking after people’s impedimenta while they are shopping. If I entrust my bag to such a person, and he runs off with it, he commits the crime of theft and also two civil wrongs—the tort of conversion and a breach of his contract with me to keep the bag safe. The result is that two sorts of legal proceedings can be taken against him: a prosecution for the crime, and a civil action for the tort and the breach of contract. (Of course, the plaintiff in the latter action will not get damages twice over merely because he has two causes of action; he will get only one set of damages.) To take another illustration, if a railway signalman, to dumb forgetfulness a prey, fails to pull the lever at the right moment, and a fatal accident occurs on the line, his carelessness may be regarded as sufficiently gross to amount to the crime of manslaughter, and it is also the tort of negligence towards the victims of the accident and 25 2025:HHC:18000 their dependents and a breach of his contract with the Railway Executive to take due care in his work. It will be noticed that this time, the right of action in tort and the right of action in a contract are vested in different persons. These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done may be the same in each case. The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow. If the wrongful act is capable of being followed by what are called criminal proceedings, that means that it is regarded as a crime (otherwise called an offence). If it is capable of being followed by civil proceedings, that means that it is regarded as a civil wrong. If it is capable of being followed by both, it is both a crime and a civil wrong. Criminal and civil proceedings are (in the normal case) easily distinguishable: the procedure is different, the outcome is different, and the terminology is different.” 26. The Hon’ble Supreme Court also held in Randheer Singh v. State of U.P., (2021) 14 SCC 626: 2021 SCC OnLine SC 942, that a given set of facts may make out a civil wrong, as well as, the criminal offence and mere availability of civil remedies is no ground to quash the criminal proceedings. It was observed: “34. The given set of facts may make out a civil wrong as well as a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the chargesheet so far as this appellant is concerned. The other accused, Rajan Kumar, has died.” 26 2025:HHC:18000 27. A similar view was taken in V.R. Dalal v. Yougendra Naranji Thakkar, (2008) 15 SCC 625, wherein it was observed: - “13. It may be true that in the event the court finds that the dispute between the parties is civil in nature, it may not allow the criminal proceedings to go on. But, no law, in our opinion, as such can be laid down as in a given case both civil suit and criminal complaint would be maintainable although the cause of action for both the proceedings is the same.” 28. It was laid down by the Hon’ble Supreme Court in Puneet Beriwala Vs. State 2025 SCC OnLine SC 983 that simply because a remedy is provided under the civil law cannot lead to an inference that resort cannot be had to the criminal law or that the civil law remedy is the only remedy available to the parties. It was observed: 28. It is trite law that the mere institution of civil proceedings is not a ground for quashing the FIR or to hold that the dispute is merely a civil dispute. This Court in various judgments, has held that simply because there is a remedy provided for breach of contract, that does not by itself clothe the Court to conclude that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court. This Court is of the view that because the offence was committed during a commercial transaction, it would not be sufficient to hold that the complaint did not warrant a further investigation and, if necessary, a trial. [See: Syed Aksari Hadi Ali Augustine Imam v. State (Delhi Admin.), (2009) 5 SCC 528, Lee Kun Hee v. State of UP, (2012) 3 SCC 132 and Trisuns Chemicals v. Rajesh Aggarwal, (1999) 8 SCC 686] 27 2025:HHC:18000 29. Hence, the mere fact that the matter is pending before the Civil Court will not mean that the proceedings under the Code of Criminal Procedure cannot be initiated against the accused. 30. It was submitted that the allegations made in the complaint are false. This submission will not help the petitioner. This Court, while exercising jurisdiction under Section 482 of Cr.P.C., has to take the allegations in the FIR as correct. This position was laid down by the Hon’ble Supreme Court in Punit Beriwala v. State (NCT of Delhi), 2025 SCC OnLine SC 983, wherein it was observed: - “29. It is settled law that the power of quashing of a complaint/FIR should be exercised sparingly with circumspection, and while exercising this power, the Court must believe the averments and allegations in the complaint to be true and correct. It has been repeatedly held that, save in exceptional cases where non- interference would result in a miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences. Extraordinary and inherent powers of the Court should not be used in a routine manner according to its whims or caprice.” 31. It was laid down in Maneesha Yadav v. State of U.P., 2024 SCC OnLine SC 643, that the Court exercising inherent 28 2025:HHC:18000 jurisdiction to quash the FIR cannot go into the truthfulness or otherwise of the allegations. It was observed: - “13. As has already been observed hereinabove, the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint at the stage of quashing of the proceedings under Section 482 Cr. P.C. However, the allegations made in the FIR/complaint, if taken at their face value, must disclose the commission of an offence and make out a case against the accused. At the cost of repetition, in the present case, the allegations made in the FIR/complaint, even if taken at their face value, do not disclose the commission of an offence or make out a case against the accused. We are of the considered view that the present case would fall under Category-3 of the categories enumerated by this Court in the case of Bhajan Lal (supra). 14. We may gainfully refer to the observations of this Court in the case of Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home (2019) 11 SCC 706: 2018 INSC 1060: “14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge sheet is filed, the petition for quashing of the FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23], this Court while deciding the question of whether the High Court could entertain the Section 482 petition for quashing of FIR when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed: (SCC p. 63, para 16) 29 2025:HHC:18000 “16. Thus, the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same is not made out even prima facie from the complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.” 32. Hence, this Court cannot adjudicate the truthfulness or falsity of the complaint. 33. The complaint is pending before the learned Trial Court and the learned Trial Court is seized of the matter. It was laid down by the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734: 2023 SCC OnLine SC 949 that when the charge sheet has been filed, the learned Trial Court should be left to appreciate the same. It was observed: “At the same time, we also take notice of the fact that the investigation has been completed and the charge sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence, particularly in the absence of any specific date, time, etc. of the alleged offences, we are of the view that the appellants should prefer a discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and the charge sheet is ready to be filed before the competent court. In such 30 2025:HHC:18000 circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any discharge case is made out or not.” 34. Therefore, this Court should not exercise jurisdiction when the matter is pending before the learned Trial Court. 35. No other point was urged. 36. Consequently, the present petition fails, and the same is dismissed. 37. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. ( Rakesh Kainthla ) 06th June 2025 Judge (ravinder)