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2010 DIGILAW 545 (PNJ)

Surinder Singh Gill v. Ravi Lamba

2010-01-21

GURDEV SINGH

body2010
Judgment GURDEV SINGH, J. 1. Petitioner, Surinder Singh Gill, has come up with this petition under Sec.482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the complaint filed against him by the respondent, the summoning order dated 10.10.2008 passed by Judicial Magistrate Ist Class, hisar (Annexure P-4), and order dated 6.4.2009 passed by Smt. Bimlesh Tanwar, additional Sessions Judge, Hisar (Annexure P-6), vide which she dismissed the revision petition filed against the summoning order. 2. According to the petitioner, the complainant-respondent filed a complaint against him under Sections 420 and 506 of the Indian Penal Code (hereinafter referred to as "ipc")on account of political rivalry, in which he was summoned under Sec.420 IPC. He does not own any land in village Daulatpur and the allegations regarding the alleged sale, and transfer of possession are based on oral evidence. The complainant has not referred to any specific land which he agreed to sell. For the commission of offence under Sec.420 IPC, it is necessary that a person with dishonest intention should induce any person to part with his property. No such dishonest intention can be inferred from the contents of the complaint or the evidence produced by the complainant. Even if the contents of the complaint are taken at their face value, even then no cognizable offence is made out against him. 3. According to learned counsel for the petitioner, no offence under section 420 IPC is made out against the petitioner and he was never summoned for the offence under Sec.506 IPC. Even if, the contents of the complaint are believed to be true, even then it cannot be said that he was having dishonest intention at the time, he is alleged to have agreed to sell the land in favour of the respondent. The respondent himself has contended in the complaint that at one stage, the possession of the land was given by the petitioner. That is also a factor for concluding that there was no such dishonest intention. When such is the case, it cannot be said that any such offence under Sec.420 IPC is made out from the complaint. He has placed reliance on Arun Kumar and another V/s. State of Punjab and another 2006 (3) RCR (Criminal) 793. 4. That is also a factor for concluding that there was no such dishonest intention. When such is the case, it cannot be said that any such offence under Sec.420 IPC is made out from the complaint. He has placed reliance on Arun Kumar and another V/s. State of Punjab and another 2006 (3) RCR (Criminal) 793. 4. On the other hand, it was contended by learned counsel for the respondent that from the very beginning, the petitioner had the dishonest intention as he never wanted to sell the land and in spite of that he received Rs.1,00,000/- as part of the sale consideration. From the oral evidence produced by the complainant before the trial court and documents proved on record, there are sufficient grounds for proceedings against the petitioner under Sec.420 IPC. 5. It is necessary to reproduce the relevant paras of the complaint before recording a finding as to whether any offence under Sec.420 IPC is made out from the contents thereof, which are as under:- "2. That the complainant and his brother Shalender Singh entered into an agreement of four acres of land owned by accused Surender Singh Gill in village Daulatpur, district Hisar @ Rs.1,79,000/- per acre. This agreement was entered into I the month of May, 2004 in the presence of my brother Shalender Singh Surender lamba, Ex-Sarpanch. 3. That the complainant and his brother asked the accused to sign an agreement for the deal in question. On that the accused assured that you need not worry, I am an advocate and will get completed all the legal formalities. 4. That on 11.8.2004, the complainant got paid Rs. One lac in cash as advance to the accused from Bhiku Ram, proprietor of M/s Amilal-Sushil Kuma, uklana, commission agents of his brother. The accused has signed the receipt of the same and handed it over to the commission agent (photocopy of the same is attached). 5. Thatafter payment of Rs. One lac the complainant and his brother asked the accused to prepare the agreement. However, he avoided the same by saying that I will get the registry done in the month of December, 2004. You may take possession of the land. 6. That on that the complainant took possession of the land in question and his brother Shalender Singh started doing his agricultural pursuits. Copy of entries in this regard are attached. 7. However, he avoided the same by saying that I will get the registry done in the month of December, 2004. You may take possession of the land. 6. That on that the complainant took possession of the land in question and his brother Shalender Singh started doing his agricultural pursuits. Copy of entries in this regard are attached. 7. That in the month of December the complainant and his brother went to the accused and asked him to get the registered agreement executed. However, the accused avoided the same on account of his family circumstances and compulsions." It was held by the Apex Court in H. R. Verma V/s. State of Bihar, air 2000 SC 2341 as under:- "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." While relying upon that judgment it was held in Arun Kumars case (supra) that for constituting the offence under Sec.420 IPC, there should be culpable intention right at the beginning, that is, when the promise was made by the accused and such an intention cannot be presumed. 6 The question to be determined is, "whether the petitioner had dishonest intention from the very beginning." 7. It has no where been pleaded in the complaint that the petitioner had such dishonest intention from the very beginning nor it can be said that such intention can be inferred from those contents. 6 The question to be determined is, "whether the petitioner had dishonest intention from the very beginning." 7. It has no where been pleaded in the complaint that the petitioner had such dishonest intention from the very beginning nor it can be said that such intention can be inferred from those contents. From the facts pleaded in the complaint, it can easily be inferred that there was no such dishonest intention in the very beginning itself. It has been pleaded in para No.6 that the complainant/respondent took the possession of the land in dispute, and thereafter, his brother started cultivating the same. The position was worst in shashi Partap Singh V/s. State of U. P.2001 (4) RCR (Criminal) 148. In that case, there was no allegation that the possession was also delivered to the complainant. It was held therein that by 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 was fraudulent or dishonest. The complainants allegation make out a case of breach of contract. In case the applicant failed to perform the part of his contract, the remedy to the complaint 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. 8. In view of the above discussion, the above posed question is answered in the negative. The dispute between the parties is purely of civil nature and the criminal complaint itself is not maintainable. Therefore, the complaint, the summoning order dated 10.10.2008 (Annexure P-4) and the order dated 6.4.2009 (Annexure P-6) passed in the revision petition are ordered to be quashed. Petition is disposed of accordingly.