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2001 DIGILAW 834 (PAT)

Suresh Narayan Singh v. Hari Babu Pathak

2001-09-05

P.K.SINHA

body2001
Judgment P.K.Sinha, J. 1. This is an application under Sec. 482 of the Criminal Procedure Code ("the Code", in short) preferred by Sureshwar Narayan Singh, accused in Complaint Case No. 644(c) 96, brought by the complainant, opposite party No. 1 Hari Babu Pathak, for quashing the order dated 17-8-1996 recorded by Shri N.N. Singh, Judicial Magistrate, 1st Class at Patna, whereby and whereunder the learned lower Court finding that there were materials on the record to proceed with the case under Sec. 420 of the Code, ordered for issuance of summons against the petitioner. 2. The facts in the case, in short, are that the aforesaid complaint was filed with allegation that the accused had given certain plots to a private builder-company situated at, Ashok Raj Path, Patna. After construction of the aforesaid market-cum-residential complex, the petitioner accused also got some shops in his share, who induced the complainant to purchase Shop No. 2 on ground floor and a deed of agreement in that regard was executed in favour of the wife of the complainant through the builder-company. 3. The accused, as allegation in the complaint petition goes, also executed a deed of absolute sale in respect of Shop No. 4 thraugh his builder in favour of the daughter-in-law of the complainant. 4. Thereafter the accused induced the complainant to purchase Shop Nos. 1 and 3 for a total consideration of Rs. 4,87,501 and also prevailed upon him to pay consideration money to the tune of Rs. 2,35,000 which complainant paid him, from time to time. But, thereafter, it. is alleged, despite reminders and requests of the complainant, the petitioner dishonestly evaded to execute sale-deed with the intention to cause wrongful gain to himself at the cost of the petitioner. 5. It is further alleged that in order to avoid criminal prosecution of the petitioner, the complainant sent a lawyers notice through registered post on 6-5-1996 and the complainant also sent his son to the accused. The accused, it is alleged, instead of showing his inclination to execute the sale-deed, threatened that he would neither execute the sale-deed nor would return the money. 6. This matter was enquired into under Sec. 202 of the Code and, thereafter, the learned Magistrate on consideration of materials on the record, passed the impugned order. 7. The accused, it is alleged, instead of showing his inclination to execute the sale-deed, threatened that he would neither execute the sale-deed nor would return the money. 6. This matter was enquired into under Sec. 202 of the Code and, thereafter, the learned Magistrate on consideration of materials on the record, passed the impugned order. 7. In the instant petition, a ground was taken that neither in the complaint petition nor in the legal notice, it was stated that the complainant was ready to make full payment excluding the advance payment, claiming that the opposite party himself went on taking time for getting the sale-deed executed and registered. It has been claimed that no offence under Sec. 420 of the Penal Code was made out and at best it was a case for which only civil remedy was available. 8. In course of arguments, learned Counsel for the petitioner mainly submitted that it was a commercial transaction which could never invite a criminal prosecution as for that civil remedy alone was available to the complainant which he did not take recourse to. Second point was that no criminal offence under Sec. 420 of the Penal Code was made out from the averments in the complaint petition. 9. Learned Counsel for opposite party No. 1, the complainant, submitted that from the allegations made in the complaint petition not only a case under Sec. 420 of the Penal Code was made out, but also a case under Sec. 418 of the Penal Code and that the dishonest intention of the Petitioner could be detected from his actions. It is submitted that admittedly the petitioner had been paid huge amount as part payment in advance but thereafter no sale-deed was executed and registered in favour of the purchaser. 10. In this connection learned Counsel has pointed out various orders of this Court based on submissions of the parties such as order 15-3-2000, as per which the learned Counsel for the petitioner had submitted that the case was likely to be compromised and the petitioner was willing to refund the money involved in the proceeding and on that ground adjournment was granted. Order dated 17-7-2000 would show that a joint compromise petition was filed under the signatures of the petitioner and opposite party No. 1 as well by their lawyers showing the mode of payment and, as per terms of the compromise, this Court was requested to keep the case pending till 30th November, 2000 by which time the petitioner had agreed to pay the entire amount. Thereafter also time on the same ground was taken, but from order dated 30-8-2001 it would appear that this Court was told that no action whatsoever was taken in terms of the compromise. On request of the Counsel, last adjournment was granted, but when it appeared that the compromise entered into had failed to bring about the desired result, this matter was heard on merit. 11. Learned Counsel for opposite party No. 1 submitted that in the aforesaid compromise petition, which is on the record, the petitioner had admitted his liability to pay the amount received from the complainant with interest, total of which came to Rs. 5,51,000 as also Rs. 10,000 for litigation cost, in instalments, the first instalment of which was agreed to be paid by Bank Draft on 30-11-2000 with one months grace period. Learned Counsel submitted that failure to proceed in accordance with the terms of this joint petition would show that even now the intention of the petitioner was not good. 12. Be that as it may, the point which has to seen as to whether or not this is a case for which only civil remedy is available and whether the allegations in the complaint petition make out any criminal offence. 13. It is settled principle that if in a case mainly the civil remedy was available, the complainant cannot be allowed to take recourse to a criminal case with ostensible purpose of realising the money, as a short cut method. At the same time it is equally well settled that for the same facts or allegations besides civil remedy, if a criminal offence was also made out, the aggrieved party could go for criminal prosecution also. Coming to the complaint petition, the facts of which have already been stated, it has been alleged in paragraph-6 of the complaint that inspite of several reminders and requests, after payment of the advance amount, the accused/petitioner dishonestly always evaded to execute the sale-deed. 14. Coming to the complaint petition, the facts of which have already been stated, it has been alleged in paragraph-6 of the complaint that inspite of several reminders and requests, after payment of the advance amount, the accused/petitioner dishonestly always evaded to execute the sale-deed. 14. It has further been mentioned in paragraph-8 of the complaint that even after getting lawyers notice, the petitioner had told the complainant that he would neither execute the sale-deed nor would return the money. The argument of learned Counsel for opposite party No. 1 is that from such action of the petitioner, the reasonable inference would be that during the time the parties had entered into an agreement, and the petitioner had taken huge amount as advance, till the last, the intention of the petitioner was dishonest so much, so that ultimately he refused to return the amount taken or to execute the sale-deed and in view of such allegations, prima-facie, it has to be accepted that the petitioner had dishonestly induced the complainant to deliver money to him. 15. In view of the averments in the complaint and support given in course of enquiry by the witnesses, as found by the learned lower Court in the impugned order, it is difficult to agree with the submission of the learned Counsel for the petitioner that the allegations did not make out any criminal offence such as of cheating. Whether or not the allegations are finally proved beyond reasonable doubts to warrant conviction is a matter to be decided by the trial Court. 16. This being so, this petition is found to be devoid of merit and is dismissed. However, it is made clear that none of the findings/observations made in this order will be taken into consideration by the learned lower Court in course of trial of then case and even while considering as to whether or not charges, at the appropriate stage, should be framed against the petitioner.