Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 1829 (PNJ)

Davinder Kaur v. State Of Punjab

2006-04-28

RAJIVE BHALLA

body2006
Judgment Rajive Bhalla, J. 1. Prayer in this petition is for quashing of FIR No. 106 dated 15.5.2004, registered under Sections 406/420 of the Indian Penal Code at Police Station City, Hoshiarpur and all subsequent proceedings arising therefrom. 2. Counsel for the petitioners contends that a perusal of the allegations in the FIR, reveal that the petitioners were required to return a sum of Rs. 9,84,708/-, which they failed to return. Thereafter, in order to discharge the aforementioned liability, the petitioners allegedly executed an agreement to sell Kothi No. 692/D, New Model Town, Hoshiarpur, bearing Khasra No. 8//24/3/2/(0-2), 25/1/2/2/(2-12), 15/4/5/9 (0-1) 5/1/1 (1-2). However, as the sale deed could not be executed, respondent No. 2, lodged the present FIR. It is contended that prior to the lodging of the FIR, respondent No. 2, filed a suit for specific performance of the agreement to sell (Annexure P-2). Vide order dated 30.7.2004, the civil suit, was withdrawn by the complainant, by making a statement that he had received the entire amount, due from the petitioners. It is, thus, contended that as the FIR does not disclose the commission of any offence, much less an offence under Section 420 of the IPC, the ingredients of an offence under Section 420 of the IPC, namely; dishonest intention at the inception of the transaction being absent, no offence under Section 420 of the IPC is made out. 3. Counsel for respondent No. 2 does not deny the facts and states that he has no objection, if the FIR is quashed. 4. Counsel for the State of Punjab, on the other hand contends that the allegations levelled in the FIR, make out an offence under Section 420 of the IPC. The petitioners did not return the amount of Rs. 9,84,780/- nor the amount payable thereon. The petitioners also failed to execute a sale deed, which they had agreed to execute in discharge of their financial liability. In this view of the matter, the present petition be dismissed. 5. I have heard learned counsel for the parties and perused the record. 6. A perusal of the FIR reveals admitted financial dealings between the petitioners and respondent No. 2. Respondent No. 2 allegedly deposited Rs. 9,84,708/- with the petitioners. Upon maturity, the petitioners were required to return an amount of Rs. 16,76,741/-. The petitioners failed to return the aforementioned amount. I have heard learned counsel for the parties and perused the record. 6. A perusal of the FIR reveals admitted financial dealings between the petitioners and respondent No. 2. Respondent No. 2 allegedly deposited Rs. 9,84,708/- with the petitioners. Upon maturity, the petitioners were required to return an amount of Rs. 16,76,741/-. The petitioners failed to return the aforementioned amount. Respondent No. 2, persisted in his demand, for return of the aforementioned amount, whereupon the petitioners executed an agreement to sell Kothi No. 692/D, New Model Town, Hoshiarpur, bearing Khasra No. 8//24/3/2/(0-2), 25/1/2/2/(2-12), 15/4/5/9 (0-1) 5/1/1 (1-2). They failed to execute the sale deed. The facts narrated hereinabove are in sum and substance, the facts recorded in the FIR. A significant fact, that would require notice and which has not been denied by respondent No. 2, is that during the pendency of the FIR, respondent No. 2 filed a civil suit, praying for specific performance of the agreement to sell. This suit concluded with the respondent withdrawing the suit, by making a statement before the Civil Court, acknowledging receipt of the amounts due to him. This fact has not been denied by the respondent. 7. An essential ingredient of an offence of cheating, as defined in Section 415 of the IPC, and punishable under Section 420 of the IPC, is the existence of a dishonest or fraudulent intention that induces any person to deliver any property. This dishonest or fraudulent intention must be in existence at the inception of the transaction. Failure to return money, as agreed, in the absence of any circumstances that would give rise to an inference of dishonest or fraudulent intention, at the inception of the transaction, cannot sustain a complaint alleging the commission of an offence of cheating. 8. In the present case, the petitioners received a sum of money, which they were required to return with interest. The allegations levelled in the FIR do not disclose any allegation of dishonest intention at the time of deposit of the money and, therefore, no offence under Section 420 of the IPC is made out. In so far as the failure of the petitioners to execute a sale deed, in compliance to their obligations under an agreement to sell, the said default, in view of the facts and circumstances of the present case, does not reveal any criminal culpability. In so far as the failure of the petitioners to execute a sale deed, in compliance to their obligations under an agreement to sell, the said default, in view of the facts and circumstances of the present case, does not reveal any criminal culpability. The violation of an agreement, in the absence of any circumstance to infer or suggest, dishonest intent at the time of its execution cannot be the basis of a successful indictment for an offence under Section 420 of the IPC. As noticed above, the complainant filed a suit for specific performance of the agreement. He withdrew the suit after he received the amounts, payable to him. Counsel for the complainant has made a positive statement that he has no objection, if the FIR is quashed. 9. Contention of counsel for the State of Punjab, that the prosecution is not bound by the complainants refusal to oppose the plea of quashing would have been relevant, if perusal of the FIR revealed the commission of an offence. The FIR, does not disclose any offence. 10. Taking into consideration the facts in their totality, as also the facts that the dispute in essence stands resolved, pursuant to a statement dated 30.7.2003 (Annexure P-3) made before a Civil Court, the present petition is allowed and the FIR No. 106 dated 15.5.2004, registered under Sections 406/420 of the Indian Penal Code at Police Station City, Hoshiarpur, as also all subsequent proceedings emanating therefrom are quashed.