Criminal Revision No.449 of 2001.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Revision No.449 of 2001.
Date of decision:7-1-2009
Vijay Kumar.
...Petitioner.
Versus
Sudershan Kumar Sarin.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr.Balwinder Sudan, Advocate for amicus curiae.
Mr.Lokesh Sinhal, Advocate for the respondent.
...
K. C. Puri, J.
Judgment.
This Criminal Revision is directed against the order
dated 22.9.2000 passed by Shri S.S.Lamba, then Additional
Sessions Judge (I), Faridabad whereby the accused was ordered to
be discharged and the Revision Petition was accepted.
Earlier, Smt. Shashi Bala Chauhan, the then Judicial
Magistrate Ist Class, Faridabad vide order dated 19.7.1999 ordered
Criminal Revision No.449 of 2001.
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the framing of charge under Section 420 IPC against the accused.
The brief facts culminating in the present lis are that the
accused entered into an agreement to sell his plot measuring 1000
Square Yards bearing Plot No.132, situated at Sector 21-A,
Faridabad in which a garage room with pucca boundary wall was
already constructed. He entered into contract on 7.10.1986 with the
complainant and received Rs.60,000/-. The accused executed a
receipt in token of having received the said amount. The said
amount was full and final consideration of the plot along with
construction thereon. The accused agreed to transfer the said plot
in favour of the complainant in terms of the agreement to sell dated
7.10.1986. However, he continued putting off the matter on one
pretext or the other. Then, ultimately, it was revealed that the
accused had sold the plot to one Anil Kumar Jain on 20.6.1987.
The complainant then lodged a report with the police but the police
did not take any action against the accused. The complainant
thereafter filed a private complaint.
After pre-charge evidence, the accused was ordered to
be charge-sheeted.
The accused preferred Revision Petition which was
accepted by Shri S.S.Lamba, the then Additional Sessions Judge
(I), Faridabad vide impugned order dated 22.9.2000.
Criminal Revision No.449 of 2001.
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Still feeling aggrieved with the said order, the
complainant has filed the instant Criminal Revision.
Learned counsel for the petitioner has submitted that the
impugned order dated 22.9.2000 passed by Shri S.S.Lamba,
Additional Sessions Judge, Faridabad is against the principles of
law. Once the accused/respondent has received the entire sale
consideration, in that case, the offence of cheating is clearly made
out after he sold the plot in question to another person. The act of
the accused shows that he had criminal intention from the very
beginning i.e. at the time of execution of agreement to sell. The
findings of the learned Additional Sessions Judge that even if the
entire allegations made by the complainant in the complaint are
taken as correct, no offence of cheating is made out, are against the
facts on the record and the law.
In reply to the above noted submissions, the learned
counsel for the accused/respondent has supported the impugned
order of the Additional Sessions Judge and has submitted that there
is no allegation in the complaint that the petitioner had dishonest
intention at the time of execution of agreement. So, the learned
Additional Sessions Judge has rightly held that no offence under
Section 420 IPC is made out. It may be a case of breach of contract
and does not attract the provisions of Section 420 IPC, in view of
Criminal Revision No.449 of 2001.
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authority in case Nageshwar Prasad Singh alias Sinha v.
Narayan Singh and another, AIR 1999 Supreme Court 1480. The
learned counsel for the petitioner has also relied upon authority in
case Ratan Kumar Modi and another Versus State of Punjab
and another, 1991(1) Recent Criminal Reports 586.
I have carefully considered the submissions made by
both sides and have gone through the record of the case.
According to the complainant, the accused/respondent
entered into an agreement to sell his residential plot measuring
1000 Square Yards and agreement dated 7.10.1986 was executed
in favour of the complainant after receiving Rs.60,000/- by the
accused/respondent. The accused has sold the said plot to Anil
Kumar Jain on 20.6.1987. It has been contended that after
receiving the entire sale consideration of Rs.60,000/- the
ingredients of offence under Section 420 IPC are made out against
the accused.
The learned Additional Sessions Judge in his impugned
order has held that even if the entire allegations of the complainant
are taken as gospel truth, in that case, the complainant has failed to
show that the accused had dishonest intention to cheat the
complainant, at the time of execution of agreement. It is a case of
mere breach of agreement. In authority in case Nageshwar
Criminal Revision No.449 of 2001.
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Prasad Singh alias Sinha (supra), the Hon’ble Supreme Court has
held that liability, if any, arising by breach of contract is civil in
nature and not criminal. In that case, the complainant was directed
to pay compensatory costs assessed at Rs.10,000/- for vexatious
proceedings. In the present case also, there is a breach of terms of
agreement and it cannot be said by any stretch of imagination that
at the time of execution of agreement, the accused had dishonest
intention to cheat the complainant. In authority in case Ratan
Kumar Modi (supra), it has been held that the offence of cheating
under Section 420 IPC is not made out where the accused agreed to
sell the factory and received earnest money but the agreement did
not mature. In that case, the accused returned the money by way of
bank drafts but the payment of those drafts was refused by the
Bank as the accused got duplicate drafts prepared and got money
himself.
Therefore, in view of above discussion, no interference
in the impugned order is made out. Consequently, this petition
stands dismissed.
January 7-1 -2009. (K. C. Puri ) Jaggi Judge