Judgment:
CRIMINAL MISC.
M NO.7432 OF 201.:{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 10 2013 Amninder Singh .....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1
Whether Reporters of local papers may be allowed to see the judgement?.”
2. To be referred to the Reporters or not?.”
3. Whether the judgment should be reported in the Digest?.
Present: Mr.G.S.
Toor, Advocate, for the petitioner.
Mr.Kirat Singh Sidhu, DAG, Punjab, for the State.
Mr.Pritam Saini, Advocate, for respondent No.2.
***** RANJIT SINGH, J.
Failure to execute an agreement to sell has led to filing of this criminal proceedings.
The petitioner accordingly has approached this court for quashing of the FIR and all subsequent proceedings on the ground that no offence of cheating as alleged against the petitioner would prima-facie be made out from the facts and the allegations as made in the complaint.
Respondent No.2 complainant had executed one agreement to sell dated 27.9.2011 with the petitioner in regard to CRIMINAL MISC.
M NO.7432 OF 201.:{ 2 }: land measuring 2 kanals 10½ marls situated in a village in Roopnagar District.
The petitioner paid an amount of `19,45,000/-.
December 27, 2011 was fixed as the date for executing the sale deed.
The total sale price agreed was `21,45,000/-.
The agreement was scribed by Deed Writer at Tehsil Complex Roopnagar and was witnessed by some witnesses.
Respondent No.2 endorsed his signatures in English.
Copy of the agreement is on record as Annexure P-2.
The petitioner would allege that respondent No.2 has turned greedy on account of increase in price of the property.
He started bargaining for sale of this property with some other people.
On learning about the same, the petitioner filed a suit for injunction on 14.10.2011.
On 15.10.2011 Civil Judge directed the parties to maintain status-quo.
Respondent No.2 has appeared in this suit on 12.11.2011.
Subsequently, he appeared on 18.11.2011 and 1.12.2011, but still did not file any written statement.
In the meantime, he has managed the police and has got registered an FIR No.107 dated 19.11.2011 against the petitioner under Sections 420 IPC.
The petitioner otherwise claims that on 27.12.2011, respondent No.2 did not come present to execute the sale deed.
The petitioner was present and marked his presence before Sub Registrar.
He was ready with the balance sale consideration.
Subsequently, he also filed a suit for specific performance.
Both the civil suits are pending.
The petitioner accordingly would contend that the police has jumped the queue by registering this case and, thus, has converted civil CRIMINAL MISC.
M NO.7432 OF 201.:{ 3 }: liability to a criminal one.
The petitioner also has a status quo order passed by the civil court in his favour.
He accordingly would plead that continuation of the criminal proceedings would be nothing but abuse of the process of the court and would lead to miscarriage of justice.
Reference is made to some of the judgments in support of the plea that criminal proceedings for allegation of cheating from the facts as alleged in the complaint are not made.
In the complaint made by respondent No.2, it is alleged that petitioner is cousin brother of the complainant and had earlier facilitated the purchase and exchange of one plot and one kothi bought by the petitioner.
They were statedly on good terMs.The petitioner allegedly had approached the complainant for selling one plot which he owned in Ropar.
As per the complainant, the petitioner offered a sale consideration of `72.00 lacs to which the petitioner responded that the going rate is more than `6,000/- per yard and the show room being a commercial property could be sold at `10,000/- per yard.
The petitioner accordingly did not pursue the matter.
It is then alleged that in third week of September, 2012, the petitioner told the complainant that he will get better buyer.
The petitioner again came with an offer of `87.00 lacs and insisted with the respondent to buy three acres of land near village.
On this pretext, the petitioner allegedly entered into an agreement with the complainant as the plot was not on his name and he had buyer for the same.
The agreement was to be entered into only after receiving the sale consideration.
The petitioner also pleaded with the complainant to execute a power of attorney and thereafter he shall CRIMINAL MISC.
M NO.7432 OF 201.:{ 4 }: receive the money and deposit the same directly on the name of the complainant in complainant's bank account online.
On 27.9.2011, the complainant also bought stamp paper at the behest of the petitioner for writing an agreement.
The same was scribed by the Deed Writer.
The total value of the showroom was entered at `21,45,000/- and it was mentioned that `19.00 lacs has been paid as earnest money and that the remaining amount of `2,45,000/- shall be paid at he time of sale deed.
At this stage, the complainant states to have apprised the petitioner that he has entered into an agreement for `87.00 lacs to which the petitioner responded by saying that the BDPO did not have that much white amount.
He promised that the total amount would be more and he would transfer in the accounts of the respondent a sum of `85.00 lacs.
The petitioner made out to the complainant that he should execute the sale deed after getting the satisfaction from his bank account.
In this manner, he procured the signatures of the respondent on the agreement.
Later the petitioner told the complainant to bring the original agreement when he apprised him that he would fiRs.check whether the amount has been deposited in his bank account or not.
Apprehending that petitioner might have prepared a duplicate copy of the agreement, he enquired from the petitioner if amount has been deposited in the bank account or not.
The petitioner apprised the complainant that all the money could not be transferred and the same will be done on 29.9.2011.
When the petitioner went to the bank on 30.9.2011, he learnt that no amount has been deposited in CRIMINAL MISC.
M NO.7432 OF 201.:{ 5 }: his account.
On this basis, respondent No.2 has lodged this complaint against the petitioner and he accordingly is being prosecuted in this case.
Reply on behalf of respondent No.2 is filed.
It is urged that prayer for quashing is made only on the ground that the civil proceedings are pending.
Respondent would submit that the civil proceedings have been initiated by the petitioner to save himself of the criminal proceedings as he is well aware of the fraud which he has committed with the complainant.
The petitioner being cousin brother of the complainant has taken advantage of this relationship and had made the complainant to execute and sign the agreement in good faith showing an amount of `19,45,000/- as mentioned in the agreement without making any payment.
It is accordingly urged that the petitioner always had intention to cheat the complainant and this is not a case of civil liability, but a clear cut case of an offence under Section 420 IPC which by no stretc.of imagination can be quashed as is prayed for by the petitioner.
I have considered the submissions as advanced by the counsel for the parties.
From the nature of allegations made, it is to be determined if the petitioner had any fraudulent or dishonest intention to induce respondent No.2 and deprive him of his property.
Apparently, this is not a case of failure of any agreement.
The petitioner at the very beginning seems to have acted in a manner to deceive the complainant.
The offence of cheating as defined in Section 415 IPC is CRIMINAL MISC.
M NO.7432 OF 201.:{ 6 }: made out if the following ingredients are made out from the allegations made:- “(i) there is fraudulent or dishonest inducement of a person by deceiving him; (ii) 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 the person so deceived should be intentionally induced to do or omit to do any thing which he would not do or omit if he was not so deceived; (iii) the act of omission (as noticed above) should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or fraud”.It has been observed in S.W.Palanitkar versus State of Bihar, 2001(4) RCR (Criminal) 572, Bisham Dev versus State of Haryana (Pb.& Hy.).1991(3) RCR (Crl.) 555 and Hakam Singh versus State and ors., 1984(2) R.C.R.(Criminal) 372 that to constitute an offence of cheating, intention to deceive should be in existence at the time when the inducement was made.
In all such cases, it is necessary to show that a person had fraudulent or dishonest intention at the time of making a promise and that mere failure to keep up a promise subsequently cannot be presumed as an act leading to cheating.
The present one is not one of those cases where the agreement was genuinely entered into between the parties.
The petitioner apparently has induced the complainant to enter into this CRIMINAL MISC.
M NO.7432 OF 201.:{ 7 }: agreement for further sell the property.
The petitioner is not a stranger to the complainant and they are cousin brotheRs.The complainant apparently fell into the trap set by the petitioner because of this relationship.
The petitioner made a promise with the complainant to deposit this amount shown in the agreement as executed in the bank account of the complainant.
However, he did not deposit any such amount which would clearly show that he carried a clear intention to cheat the complainant.
The plea for quashing this complaint on the grounds as pleaded that there is no offence of cheating made out from the allegations as made, thus, is clearly misplaced.
Prima-facie, offence of cheating is made out against the petitioner and this, thus, is not a fit case for quashing the criminal proceedings at the threshold as is the plea raised by the petitioner.
There is no merit in the petition and the present petition is accordingly dismissed.
January 10, 2013 (RANJIT SINGH ) ramesh JUDGE