Accused has file a case in the high court for quashing of FIR because civil suit is already filed for recovery of money which I had paid to the accused for the purchase of land. The accused is doing a real estate business and also a registered broker under the RERA. He has executed an agreement to sale for a piece of land and took nine lakh rupees as an earnest money. The earnest money was refundable if the accused failed to provide that land. He failed to provide that land because someone has taken possession over it. As per the agreement he has given me three cheques with gross amount of nine lakh. All three cheques were bounced.
I filed a criminal case against him under section 138 of the negotiable instrument act. In the meantime I have also filed a civil suit for the recovery of money which I have paid in the compliance of the agreement to sale. Later on I came to know that he had sold that land to someone (who has taken possession over the land) in 2014. Despite that he has signed an agreement to sale. I filed a case for cheating against him. He has approached the high court for quashing of FIR. Please suggest what to do in this case?
The high court shall not quash the FIR because, at the time of entering into the agreement to sell, the accused had already sold that land to someone else. The accused had the intention to deceive you right from the beginning, i.e., on the date of signing the agreement. Filing a civil suit is an alternative proceeding for the recovery of the money from the party to the agreement because he failed to perform his obligations under the agreement.
The proceeding of the civil suit cannot absolve the defendant (accused) from the criminal liability that arises in the same transaction. The offense of cheating is very well made out against the accused because, right from the beginning, he had the intention to deceive you.
For a person to be charged with the offense of cheating under Section 420 of the IPC, there must be a fraudulent or dishonest intention at the time of inducing the victim to part with his property. The court also held that there must be an intention to deceive the victim, and the deception must result in a wrongful gain to the accused person or a wrongful loss to the victim.
Mere breach of a promise, without any fraudulent or dishonest intention, cannot be considered an offense of cheating under Section 420 of the IPC. If the accused person has made a false representation or a false promise, knowing it to be false, with the intention to deceive the victim, he has committed the offense of cheating. Hence, it is most likely that the Hon'ble high court may dismiss his petition filed for the quashing of the FIR.
