JUDGMENT
S.K. Agarwal, J.
1. The present case was registered on 16.8.2003, on the basis of a complaint lodged by one Smt. Maya Devi, alleging that the petitioner (Gulfam Gazi) pretending himself to be the owner of the flat bearing No, C-80, DDA Flats, New Seema Puri, Delhi (hereinafter ‘the flat’), proposed to sell the same to her for a total sale consideration of Rs. 19.80 lacs; complainant paid a sum of Rs. 3.80 lacs to the petitioner, as earnest money; complainant later on came to know that the petitioner is not the owner of the flat and had no right to sell the same. After inquiry the FIR was registered; during investigation, police recorded the statement of the real owner (Saroj Bala), who has stated that she is the owner of the above noted flat and that petitioner has no right, title or interest therein. Learned Counsel for the State submits that the custodial interrogation of the petitioner is required to recover the cheated amount and to interrogate other persons, if any, involved in the case, to reach the truth.
2. Learned Counsel for the petitioner argued to the contrary submitting that petitioner is a property broker; the original owner had executed an agreement to sell the flat in favor of the petitioner. On the basis of this agreement, petitioner agreed to further sell the flat to the complainant, who has paid a sum of Rs. 3.80 lacs, as the earnest money to him, and on her failure to pay the balance amount the earnest money was forfeited. Learned Counsel argued that it was the condition of the agreement between the petitioner and the complainant that if the property is not handed over to the complainant, double amount is to be paid to the complainant. Thus it is a purely civil transaction. In support of his submission reliance is placed on Ranjit Kumar v. Madan Lal, 1993 (1) Recent Criminal Report, 121, of Punjab and Haryana High Court. Operative portion of the judgment reads as under:
“Unless that question is decided it will not be proper to prosecute the petitioner on the allegations that he induced him to part with a sum of Rs. 10,000/- on the representation that he had power to transfer the plot. An unreported judgment of the Supreme Court dated 10.2.1987 in Criminal Appeal No. 81 of 1987. Sardool Singh and Anr. v. Smt. Nasib Kaur, is to be the same effect.”
3. Learned Counsel also relied upon the Supreme Court decision in Nageshwar Prasad Singh @ Sinha v. Narayan Singh and Anr., , wherein it was held that failure of the complainant to perform his part of the contractual obligation by paying full payment, particularly when the suit for specific performance was pending before Civil Court, the prosecution is liable to be quashed.
4. Learned Counsel next argued that petitioner is resident of C-81, DDA Flats, New Seema Puri, Delhi and the flat in question was adjacent to petitioner’s flat; the complainant would have known about its true owner. Therefore, there was no question of any inducement by the petitioner, which is an essential ingredient to make out offence under Section 415, punishable under Section 420, IPC. Reliance is placed on S. Joginder Singh Sehgal and Ors. v. S. Kundan Singh, 1983 C.C. Cases 2 (HC). In my considered view, now the ratio of these decisions is not applicable to the facts at hand. The answer to the question whether the petitioner could sell the flat and pass on a valid title to the complainant is clearly no, on being asked whether the petitioner would like to deposit in the Court double the amount in terms of the agreement with the complainant, without prejudice to his rights and contentions, learned Counsel submits that petitioner is a poor person, and is not in a position to do so.
5. Admittedly, petitioner is not in possession of any agreement to sell by the owner of the flat in his favor. The petitioner has not given any particulars of the same no payment was made to the owner through cheque.
6. To repeat, petitioner is not the owner of the flat in question. The real owner Smt. Saroj Bala has stated that she is the owner of the flat and petitioner has no right, title or interest in the said flat. No document has been filed to show that petitioner had the right to sell the flat. Therefore, prima facie the representations on the basis of which complainant was made to part with Rs. 3.80 lacs were false, and it is not possible to say that only a civil case is made out or that case for custodial interrogation is not made out.
7. Looking into the facts and circumstances of this case, no case for grant of anticipatory bail is made out. Petition is accordingly dismissed. Any observations made herein would not affect the merit of the case during the trial.