Neutral Citation No. ( 2025:HHC:10017 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 620 of 2025 Reserved on: 26.03.2025 Date of Decision: 10th April 2025. Vijay Kumar Applicant/Petitioner Versus Usha Rani and Anr. Nonapplicant/Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Applicant/ Petitioner : Ms. Shalini Thakur, Advocate. For Respondent No.2/State. : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge Cr.MP(M) No. 620 of 2025 An application under Section 419(4) of Bhartiya Nyaya Suraksha Sanhita (BNSS) has been filed for seeking leave to appeal against the judgment passed by learned Additional Sessions Judge, Nahan, District Sirmaur (learned Appellate Court), vide which the appeal filed by the respondent (accused before the learned Trial Court) was allowed and she was acquitted of the charged offences. It was laid down by Hon’ble Supreme Court in Naval Kishore 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:10017 ) Mishra v. State of U.P., (2019) 13 SCC 182 : (2019) 4 SCC (Cri) 543: 2019 SCC OnLine SC 939  that there is no need for the victim to seek leave to appeal against the order of acquittal while preferring an appeal under proviso to Section 372 (corresponding to Section 419(4) of BNSS). It was observed at page 183: “8. It is, however, submitted by her that the question whether the victim would also have to seek leave as would be a situation envisaged under Section 478 CrPC as in the case of the State has been considered and is no more res in- tegra in view of the recent judgment of this Court in Mallikarjun Kodagaliv. State of Karnataka [Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752 : (2019) 1 SCC (Cri) 801] where this Court opined that there is no need for a victim to apply leave to appeal against the order of acquittal while preferring an appeal under Section 372 proviso to CrPC.” 2. In view of this binding precedent, the present application seeking leave to appeal is dismissed as infructuous. Appeal be registered. Cr. Appeal No. 145 of 2025 3. The informant has filed the present appeal against the judgment dated 21.12.2024 passed by learned Additional Sessions Judge, Nahan (learned Appellate Court) vide which the judgment passed by learned Judicial Magistrate, First Class, Nahan, District Sirmaur (learned Trial Court) was reversed and respondent 3 Neutral Citation No. ( 2025:HHC:10017 ) (accused before learned Trial Court) was acquitted of the commission of charged offences. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 4. Briefly stated, the facts giving rise to the present appeal are that the accused agreed to sell the property measuring 19 biswa situated at Village Bankalan in Tehsil Nahan to the informant for a sale consideration of ₹ 3,00,000/-. However, the accused sold the land to Smt. Yachna Sharma and her sister despite the receipt of the earnest money of ₹2,50,000/- from the complainant. The complainant filed a complaint before Superintendent of Police, Sirmaur. The police registered the FIR, conducted investigations, and filed a charge sheet before the learned Trial Court after the completion of the investigation. 5. Learned Trial Court held that the accused had agreed to sell her property to the informant and received ₹2,50,000/-. However, she sold the property to Yachna and Savita. The accused had taken contradictory defence, which was not established. She did not execute the sale deed, which shows that she had cheated the complainant by inducing him to pay ₹2,50,000/- for the sale 4 Neutral Citation No. ( 2025:HHC:10017 ) of property; hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 420 of IPC and sentenced her to undergo simple imprisonment for eight months, pay a fine of ₹ 3,000/- and in default of payment of fine to undergo simple imprisonment for 30 days. 6. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed an appeal. The State has also filed an appeal for enhancement of the sentence awarded by the learned Trial Court. Both these appeals were decided by learned Additional Sessions Judge, Nahan (learned Appellate Court). Learned Appellate Court held that the agreement with the informant was to be specifically performed on 25.08.2014, however, the accused had sold the property on 11.08.2014. A mere sale of the property to a third person after the execution of the agreement to sell did not constitute cheating but a breach of the agreement. A civil wrong cannot give rise to criminal liability. There was no evidence that the intention of the accused was to cheat the complainant from the beginning; hence, the accused was acquitted. 5 Neutral Citation No. ( 2025:HHC:10017 ) 7. Being aggrieved from the judgment passed by the learned Appellate Court, the informant has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The civil and criminal liability can co-exist and one does not exclude the other. It was duly proved that the accused had sold the land to some other person despite executing the agreement to sell the property to the informant. This act by itself showed dishonest intention. The learned Appellate Court had erred in setting aside the well-reasoned judgment of the learned Trial Court, therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 8. I have heard Ms Shalini Thakur, learned counsel for the appellant/informant and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 9. Ms Shalini Thakur, learned counsel for the appellant/informant submitted that the learned Appellate Court erred in acquitting the accused. Civil and criminal liability can co- exist. The accused had agreed to sell the land to the informant and accepted ₹2,50,000/- towards the part performance of the 6 Neutral Citation No. ( 2025:HHC:10017 ) agreement. She failed to honour the agreement and sold the property to Yachna and Savita. This showed that the intention of the accused was fraudulent from the beginning. Learned Appellate Court failed to notice this aspect; hence, she prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 10. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State submitted that the State has not filed any appeal in the present matter and the matter may be decided as per the law. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176 that the Court should interfere with a judgment of acquittal if it is patently perverse or is based on misreading/omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: 7 Neutral Citation No. ( 2025:HHC:10017 ) “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 8 Neutral Citation No. ( 2025:HHC:10017 ) (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence; 9 Neutral Citation No. ( 2025:HHC:10017 ) 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and 10 Neutral Citation No. ( 2025:HHC:10017 ) only the view consistent with the guilt of the accused is possible from the evidence available on record.” 13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The police had filed a charge sheet for the commission of offences punishable under Section 420 of IPC. The ingredients of cheating were explained by the Hon’ble Supreme Court in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 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 HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4 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 for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless 11 Neutral Citation No. ( 2025:HHC:10017 ) 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 fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up 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 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 12 Neutral Citation No. ( 2025:HHC:10017 ) 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. 15. 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 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 13 Neutral Citation No. ( 2025:HHC:10017 ) 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 body, mind, reputation or property. 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 14 Neutral Citation No. ( 2025:HHC:10017 ) 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.” 16. It was laid down by the Hon’ble Supreme Court in Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293: (2015) 3 SCC (Cri) 498: 2015 SCC OnLine SC 238 that a breach of contract does not give rise to an offence of cheating unless it is proved that the intention of the accused was fraudulent right from the beginning. It was observed at page 297: “12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases 15 Neutral Citation No. ( 2025:HHC:10017 ) breach of contract would amount to cheating where there was any deception played at the very inception. If the inten- tion to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of con- stituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest inten- tion at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out.” 17. This position was reiterated in Sarabjit Kaur v. State of Punjab, (2023) 5 SCC 360: 2023 SCC OnLine SC 210 wherein it was observed at page 363: “13. A breach of contract does not give rise to criminal pros- ecution for cheating unless fraudulent or dishonest inten- tion is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings…” 18. A similar view was taken in Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690: 2024 SCC OnLine SC 2248 wherein it was observed at page 710: “41. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subse- quent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating un- less fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the of- 16 Neutral Citation No. ( 2025:HHC:10017 ) fence is said to have been committed. Therefore, it is this intention, which is the gist of the offence.” 19. In the present case, the FIR does not mention that the accused had a fraudulent intention at the time of entering into a contract. A mere breach of contract does not lead to an inference that the intention of the accused was fraudulent right from the beginning. Learned Appellate Court had rightly held that it was a case of mere breach of agreement, which gives rise to civil proceedings and not criminal proceedings. This was a reasonable view taken by the learned Appellate Court and no interference is required with it while exercising the jurisdiction to decide an appeal against acquittal. 20. In view of the above, the present appeal fails and the same is dismissed. (Rakesh Kainthla) 10th April,2025 Judge (Saurav Pathania)