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2001 DIGILAW 490 (ALL)

SHASHI PRATAP SINGH v. STATE OF UTTAR PRADESH

2001-05-16

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS petition under Section 482, Cr. P. C. has been filed for quashing the proceedings of complaint case No. 2331 of 1992 and the order dated 18-1-1993 and 18-3-1993 passed by Addl. Munsif Magistrate, Mirzapur. ( 2 ) THE applicant had executed a registered agreement to sell in favour of opposite party No. 2 regarding certain plots situated in village Matawaria Tappa Upraudh, Pargana Kantith, Tehsil Lalganj, District Mirzapur. The applicant and his brothers were owners and bhumidhars of said plots. There was a family settlement amongst the brothers of the applicant in which the applicant got 1/4 share in the plots in ques-tion and had a right to make transaction including the sale in respect of the plots in question. The applicant was ready to perform the part of his agreement by executing sale deed. Opposite party No. 2 himself resiled from contract and did not pay balance amount of Rs. 55000. 00 due to which the sale deed could not be executed and he wrongly filed a complaint against the applicant with mala fide intention which is liable to be quashed. ( 3 ) A perusal of the complaint Annexure 2 shows that according to opposite party No. 2 the applicant executed an agreement to sell on 15-11-91 for sale of the plots in question for a consideration of Rs. 1,10,000. 00 and agreement deed was executed after receiving Rs. 45,000. 00 as earnest money. Thesale deed was to be executed on 30-6-1992. The applicant did not execute sale deed, therefore, the opposite party No. 2 sent a telegram to him on 29-6-92 asking him to refund his earnest money in case he was not willing to execute sale deed. He again sent another telegram dated 15-7-92 informing the applicant to be present at the office of Sub-Registrar, Mirzapur on 30-7-92, but the applicant did not appear, hence the complaint. ( 4 ) CONSIDERING the evidence of the complainant under Section 200 and his witnesses under Section 202, Cr. P. C. the learned Magistrate summoned the applicant under Section 420, I. P. C. vide his order dated 18-1-93. ( 5 ) PARTIES have exchanged affidavits. Heard learned counsel for the applicant as none appeared from the side of the opposite parties. P. C. the learned Magistrate summoned the applicant under Section 420, I. P. C. vide his order dated 18-1-93. ( 5 ) PARTIES have exchanged affidavits. Heard learned counsel for the applicant as none appeared from the side of the opposite parties. ( 6 ) IT was contended by the learned counsel for the applicant that the alleged dispute between the parties was purely of civil nature and no criminal complaint is maintainable. In support of above contention he placed reliance on Apex Court decision in Nageshwar Prasad Singh alias Sinha v. Narayan Singh, 1998 UP Cr R 625 : ( AIR 1999 SC 1480 ). In the said case, the allegation of the prosecution was that an agreement was signed between the comlainant respondent and the appellant whereby some land was agreed to be sold by the appellant to the complainants on a consideration and allegedly a part thereof was paid as earnest money, the balance being payable in the manner indicated in the Deed. The most important term in the Deed was that possession of the plot would stand transferred to the complainants and possession in fact was delivered to the complainants over which they have made certain constructions. The complaint was laid on the basis that the appellant had cheated the complainants of the sum of money they had paid as earnest money as his subsequent conduct reflected that he was not willing to complete the bargain for which the complainants had to file a suit for specific performance which was pending in the Civil Court. Held that latter part of illustration (g) to Section 415, I. P. C. illustrates that at the time when agreement for sell was executed, it could have in no event been termed dishonestly so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part consideration and possession of the total amount involved in the bargain was passed over to the complainant/respondent and which remains in their possession. Now it is left to imagine who would be interested for dealing the matter for completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter is, therefore, before the Civil Court in this respect. The liability, if any, arising out by breaching thereof is civil in nature and not criminal. Now it is left to imagine who would be interested for dealing the matter for completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter is, therefore, before the Civil Court in this respect. The liability, if any, arising out by breaching thereof is civil in nature and not criminal. Accordingly the appeal was allowed and complaint proceedings were quashed. ( 7 ) IT was further held by Apex Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 3 JT (SC) 604 : ( AIR 2000 SC 2341 at Pp. 2345-46 of Para 16) as below :"15. In determining the question it has to be kept in mind that the distinction between, mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. 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, that is the time when the offence is said to have been committed. Therefore, it is the intention, which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. " ( 8 ) IN the instant case no doubt there is no allegation that the possession was also delivered to the complainant but by simply not executing the sale deed in the stipulated period it cannot be said that the applicant committed cheating as there is nothing in the complaint to show that the intention of applicant from the very beginning wasfraudulent or dishonest. The complaints allegations make out a case of breach of contract. In case the applicant failed to perform the part of his contract the remedy to the complainant was to file a civil suit for specific performance. Thus, the dispute between the parties was of purely civil nature and criminal complaint was not maintainable. The petition, therefore, succeeds. The complaints allegations make out a case of breach of contract. In case the applicant failed to perform the part of his contract the remedy to the complainant was to file a civil suit for specific performance. Thus, the dispute between the parties was of purely civil nature and criminal complaint was not maintainable. The petition, therefore, succeeds. ( 9 ) THE petition is accordingly allowed and the complaint filed by opposite party No. 2 against the applicant, as well as criminal proceedings in case No. 2331 of 1992, Kanhaiya Singh v. Shashi Pratap Singh under Section 420, I. P. C. pending in the Court of Munsif Magistrate, Mirzapur arising out of above Criminal Complaint are hereby quashed. Petition allowed. .