Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1027 (PNJ)

Manisha Goyal v. State Of Punjab

2005-09-26

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. The prayer in this petition, filed under Sec.482 of the Code of Criminal Procedure, is for quashing of FIR No.141, dated 25.7.2004, registered under Sections 406/420 of the indian Penal Code, at Police Station City rajpura, Distt. Patiala. 2. The petitioner executed an agreement with the complainant to sell land, measuring 2 bighas out of 5 bighas 3 biswas, comprised in Khewat/khata No.133/207, bearing Khasra Nos.706/37 (1-12), 707/37 (3-11), for a total sale consideration of Rs.3,10,000/-. The petitioner was paid a sum of Rs.1,10,000/- as earnest money and was required to execute a sale-deed. As per the averment in the fir, neither the petitioner nor her husband turned up at the Tehsil office on 3.11.2003, the date fixed for the execution of the sale-deed. 3. The complainant alleges that he repeatedly met the petitioner and her husband and requested for the execution of the sale-deed, but failed to get any satisfactory response. On 20.6.2004, the petitioner and her husband are alleged to have told the complainant that they had already executed oral agreements with a number of parties, regarding the said land. They also refused to return the amount of Rs.1,10,000/-. 4. Counsel for the petitioner contends that even if the allegations, contained in the FIR, are accepted to be true, no criminal offence, much less a prima facie offence, is made out, under any provisions of the Indian Penal Code. It is further contended that the complainant has filed a suit for possession, by way of specific performance of the agreement to sell dated 20.6.2003, which suit is pending adjudication. It is contended that the aforementioned FIR has been registered, as the complainant, namely, Tajinder pal, is a Constable, attached to the DSP, rajpura. It further contended that in such a situation where a complainant alleges the violation of an agreement to sell, no criminal offence is made out, as has been held by the Honble Supreme Court in hridaya Ranjan Prasad Verma and others v. State of Bihar and another and S. W. Palanitkarv. State of Bihar. On the basis of the aforementioned facts, counsel for the petitioner prays that the present FIR and all subsequent proceedings pursuant thereto be quashed. 5. Counsel for the respondent, on the other hand, contends that violation of an agreement to sell, would lead to both criminal and civil consequences. State of Bihar. On the basis of the aforementioned facts, counsel for the petitioner prays that the present FIR and all subsequent proceedings pursuant thereto be quashed. 5. Counsel for the respondent, on the other hand, contends that violation of an agreement to sell, would lead to both criminal and civil consequences. The possibility of committing of a criminal offence cannot be ruled out. The question, whether the petitioner is guilty of a criminal offence, would be adjudicated, during the trial, on the basis of evidence to be adduced. It is further contended that there can be no absolute proposition that the violation ol an agreement to sell does not involve any criminal culpability. It is further argued that the petitioner and her husband are guilty of duping the complainant and, therefore, the present petition be dismissed. 6. 1 have heard learned counsel for the parties and perused the record. 7. As noticed herein before, the petitioner executed an agreement dated 20.6.2003, to sell land measuring 2 bighas out of 5 bighas and 3 biswas for a consideration of Rs.3,10,000/-, out of which a sum of Rs.1,10,000/- was received as earnest money. The sale-deed was required to be executed on 3.11.2003. On the said date, the complainant remained present in the Tehsil office, but the petitioner failed to appear. Thereafter, the complainant approached the petitioner, on numerous occasions requesting her to execute the sale-deed or return the earnest money of Rs.1,10,000/-. The petitioner neither executed the sale-deed nor returned the earnest money. 8. The facts, enumerated herein before, are in sum and substance of the facts alleged in the FIR. A bare perusal thereof reveals that no offence, much less a prima facie offence, is made out under any provision of the IPC. The FIR has been registered under Sections 406 /420 of the Indian Penal Code. 9. It would be appropriate to notice the law as regards the controversy in hand. The offences, complained of, in the present case, are under Sections 406 and 420 of the IPC. The FIR has been registered under Sections 406 /420 of the Indian Penal Code. 9. It would be appropriate to notice the law as regards the controversy in hand. The offences, complained of, in the present case, are under Sections 406 and 420 of the IPC. The ingredients of an offence of criminal breach of trust are: (i)entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust. 10. Similarly, the ingredients of an offence of cheating are : (i) there should be fraudulent or dishonest inducement of as person and by deceiving him; (ii) (a)the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person to be deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 11. The Honble Supreme Court of india, while dealing with a distinction between a mere breach of contract and the offence of cheating, in Hridaya Ranjan prasad Verma and others case (supra), held as follows:- "16. 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 by 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. 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. " 12. In another judgment reported as g. V. Rao V/s. L. H. V. Prasad and others? the hon ble Supreme Court of India held as follows:- "as mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in jaswantrai Manilal Akhaney V/s. State of Bombay, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mensrea" on the part of that person, must be established. It was also observed in Mahadeo prasad V/s. State of W. B. , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. " 13. An agreement to sell requires the proposed vendor to deliver property to the proposed vendee on payment of an agreed consideration, by executing a sale-deed on the date mutually fixed. Violation of an agreement to sell, in the facts and circumstances of the present case, in my considered opinion, discloses a civil dispute. By merely stating that the petitioner refused to execute a sale-deed and/or return the money, would not convert this purely civil dispute into a criminal offence, A perusal of the FIR, as also the reply filed, does not disclose criminal culpability. Sec.406 of the IPC provides for punishment for misappropriation. By merely stating that the petitioner refused to execute a sale-deed and/or return the money, would not convert this purely civil dispute into a criminal offence, A perusal of the FIR, as also the reply filed, does not disclose criminal culpability. Sec.406 of the IPC provides for punishment for misappropriation. The failure to return earnest money, in the facts and circumstances of the present case, cannot be. termed as "misappropriation" as defined under Sec.405 of the IPC. In so far as Section 420 of the IPC is concerned, the ingredients of Sec.415 of the IPC that constitute an offence, under Sec.420 of the IPC, are missing. For a person to cheat, dishonest intention must arise at the inception of the transaction. The ingredients of offences of cheating and/or misappropriation, set down by the Honble supreme Court, in the judgments, referred to herein before, are singularly missing in the present case. In the case in hand, the FIR does not disclose any facts that would lead to a prima facie conclusion that the petitioner harboured a dishonest intention at the inception of the transaction, or in any manner committed an offence of criminal breach of trust. 14. Another significant fact that persuades me to quash the FIR is that the complainant has filed a civil suit, a copy of plaint is annexed as Annexure P-1 with the present petition. A perusal of the plaint reveals that the averments therein differ from those in the complaint. In the complaint, the complainant alleges that the petitioner stated that she has already entered into an oral agreement to sell with other persons, none of whom were able to get the sale-deed registered. The plaint of the civil suit does not disclose any such fact. Apparently these facts were twisted with the object of clothing them with a semblance of criminality. The attempt of the complainant to convert a civil dispute into one of a criminal nature discloses his mala fides. The tendency to convert disputes into criminal disputes is on the increase and investigating agencies must guard against these tendencies. 15. The Honble Supreme Court of india, while considering the question of a civil dispute, being converted into a criminal dispute, in S. W. Palanitkars case (supra), held as follows:- "23. Many a time, complaints are filed under Sec.200 cr. The tendency to convert disputes into criminal disputes is on the increase and investigating agencies must guard against these tendencies. 15. The Honble Supreme Court of india, while considering the question of a civil dispute, being converted into a criminal dispute, in S. W. Palanitkars case (supra), held as follows:- "23. Many a time, complaints are filed under Sec.200 cr. P. C. by the parties with an oblique motive or for collateral purposes to harass, to wreak vengeance, to pressurise the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. " 16. Though the aforementioned observations were made in the context of a private complaint, filed under Sec.200 of the Cr. P. C. , the said observations are relevant for the present controversy. 17. In view of what has been held above, it is apparent that the FIR does not disclose the commission of any offence, much less a prima facie offence, under the provisions of the IPC. The dispute disclosed is purely civil in nature and, therefore, I have no option but to quash the present FIR. Consequently, the present petition is allowed and FIR No.141, dated 25.7.2004, registered under sections 406/420 of the Indian Penal code, at Police Station City Rajpura, Distt. Patiala, as also all proceedings ensuing therefrom are quashed. Petition allowed.