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Civil property dispute converted in criminal case – Abuse of court process

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The petitioners – husband and wife – are aged over 70 years and residents of Assam.   Respondent No.2 and her sister are the co-owners of ancestral property adm. 2850 sq.mts at Anjuna Village, North Goa.  Respondent No.3 – complainant is the property broker and real estate developer.

The complainant approached the owners with a proposal to purchase said property on as is where is basis with the claim of tenant and legal proceedings.

They have signed MoU dated 20.2.2020 for the said property and also executed Power of Attorney in favour of the complainant in respect of the said property and also litigations of the said property.  Clause 7 of the MOU provided that the purchaser shall make his all possible efforts to secure exclusive possession from Morajkar and his family members.

In May, 2023, the complainant filed the police complaint. The police declined to register FIR since it was a civil dispute.  However, the complainant approached the criminal court. The police issued section 41A Cr PC notice requiring the petitioners to report to Porvorim Police Station.  However, it was impossible for the petitioners to attend the inquiry because of their age, health complications and distance between Assam and Goa.  From their Advocate, it was learnt that the complainant filed proceedings under Section 156(3) Cr PC in JMFC Court Mapusa for registration of FIR.  After obtaining copy of the order dated 24.3.2023, the petitioners filed writ petition for quashing the proceedings.

HELD that even if the allegations are considered, the breach of the terms of the MoU they do not amount to cheating under Section 415 Cr PC.  There is no clear allegation that the petitioners had any intention to cheat the complainant.

A 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 i.e. the time when the offence is said to have been committed.   Therefore, the intention at the inception is the gist of the offence. To hold a person guilty of cheating show that he had fraudulent or dishonest intentions when making the promise, is necessary.  From his failure to keep up his promise subsequently, such a culpable intention right at the beginning, i.e. when he made the promise cannot be presumed.

Judgment dated 13.3.2025 of the High Court of Bombay at Goa in Criminal Writ Petition No.90 of 2023 of Shri Shaukat Mohammad Rahman and another   Vs.   State of Goa and others

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