The Revisional Court below upheld the above findings and observed as under:

7…In Haridaya Ranjan Pd. Verma and Others Versus State of Bihar and another 2000(1) Apex Court Journal, 520 (S.C.) it was held by the Hon’ble Supreme Court that mere breach of contact cannot give rise to criminal prosecution for cheating unless the intention is shown right at the beginning of the transaction. It was further laid down in that case that 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. Further that intention from the beginning cannot be attributed on mere failure to keep up the promise subsequently. Another ruling of the Hon’ble Supreme Court in Nageshwar Prasad Singh alias Sinha Versus Narayan Singh and another 1998(4) Recent Criminal Cases 207 also relied upon to the same effect. The above quoted rulings are fully applicable to the facts of the present case. In the instant case as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be sold and there was no dispute about the same. There also did not appear to be any fraudulent intention on his part at the time of execution of the impugned agreements when he had title in the disputed property. As stated above, the complainant is stated to have since filed a suit for specific performance of the impugned agreements of sale made by accused Vinod Kumar in his favour. In case accused Vinod Kumar allegedly subsequently sold that property in favour of Ashok Kumar in breach of the conditions of those agreements of sale the remedy available to the complainant was purely of civil in nature especially when it was also mentioned in the agreement that upon failure of accused Vinod Kumar to execute the sale deed in terms of the agreements he was liable to pay interest on the earnest money as specified in the agreements. During the course of arguments the learned Public Prosecutor for the state relied upon a ruling of the Hon’ble Supreme Court in M/s Medchl Chemicals and Pharma Pvt. Ltd. Versus M/s Biological E Ltd. and others 2000(1) Recent Criminal Cases 650, wherein it was held that simply because there was a remedy provided for breach of contract that did not by itself close the Court to come to the conclusion that the civil remedy is the only remedy and that both criminal law and civil law remedy can be perused in diverse situations. There is no dispute regarding the leal proposition laid down by Apex Court but as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be sold and there was hardly any element of cheating at the time to execution of the impugned agreement. The rights and interests of the parties will be determined in the suit for specific performance already filed by the complainant in the case. However, keeping in view the facts and circumstances discussed above the accused or any of them hardly appeared to have committed any offence in the case when the dispute between the parties regarding alienation of the disputed property in breach of the impugned agreements was merely of civil nature and the accused hardly appeared to have committed any offence by the same. In these circumstances the impugned order of the learned trial Magistrate ordering discharge of the accused respondents in the case do not in any way suffer from any factual or legal infirmity for which to interfere in this revision and the revision petition is hereby dismissed.”

Learned counsel for the petitioner to buttress his argument that the offence of cheating has been committed and the judgment of both the Courts below cannot sustain in the eyes of law, has relied upon M/s Jnana Mandal Limited v. Amrit Paper Limited 2000 (1) Recent Criminal Reports 716, wherein it was held that civil liability and criminal liability may co-exist, therefore, the complaint can be maintained. Further reliance has been placed upon a Single Bench judgment of this Court rendered in Bipin Kumar Bhatnagar v. Pt. Raghbir Saran 1992 (1) Recent Criminal Reports 424 to say that for breach of agreement to sell, offence under Section 420 IPC is made out. However, learned counsel for the petitioner, while relying upon these judgments has made no efforts to distinguish the judgment rendered by Hon’ble the Apex Court in Nageshwar Prasad Singh alias Sinha v. Narayan Singh and Another 1998(4) Recent Criminal Cases 207 upon which reliance was placed by the trial Court. Learned counsel for the petitioner has further submitted that during the subsistence of agreements (Annexures P6 and P7), accused/respondent No.1-Vinod Kumar had executed the agreement to sell with respondent No.2-Ashok Kumar and received a sum of ` 2,00,000 through cheque, therefore, it should be construed that he had entertained the dishonest intention at the time when the agreements to sell (Annexures P6 and P7) were executed.