A.K. Sikri, J.
1. The issues sought to be raised in all these petitions are same and, thereforee, the same are heard and decided by this common order.
2. M/s. Ashoka Land and Finance Corporation, a partnership firm, (hereinafter referred to as 'the firm'), developed a colony with the name 'Ashoka Enclave' in Gurgaon (now vested in Faridabad). It carved out certain plots and offered it to general public for sale. One Shri Baldev Lal Khattar booked a plot with the said firm on 9.4.1963 and the total consideration was fixed at Rs. 5,000/-. He deposited Rs. 1,250/- at the time of booking and later on paid the remaining installments as well. Shri Baldev Lal Khattar died on 29.9.1996. After his death, his son Mr.R.K. Khattar (hereinafter referred to as 'the complainant') approached the firm and its partners for allotment of plot but no heed was paid. The complainant, thereforee, filed a complaint before the learned Magistrate under Section 200 of the Code of Criminal Procedure (for short, 'Cr.P.C.') alleging therein that he was duped by the accused persons. On examination of the complainant, the learned Magistrate took cognizance of the offence under Section 420 of the Indian Penal Code (IPC) vide order dated 12.9.2000 and issued process against the three accused persons, namely Mr. Kulbhushan Sharma, Mr. Gajinder Kumar Jain and Mr. Ramchander. The aforesaid three accused persons appeared before the learned Magistrate and made separate applications for their discharge. These applications were allowed vide order dated 22.9.2004 and the learned MM discharged all the three persons. The complainant filed Criminal Revision No. 102/2004 against the aforesaid three accused persons and vide judgment and order dated 13.7.2005, the learned ASJ has set aside the order of the Magistrate. While allowing the revision petition, the learned ASJ has referred to the judgment of the Supreme Court in the case of Adalat Prasad v. Roop Lal Jindal and Ors. : (2004)7SCC338 as per which the Magistrate has no power to review its order after taking cognizance of the offence and issuance of the process. There cannot be any quarrel about the order passed by the learned ASJ and, thereforee, the order of the learned MM discharging the three accused persons was rightly passed. However, since in Adalat Prasad (supra), the Supreme Court has held that the remedy lies in invoking Section 482 Cr.P.C., petitions are filed by Mr. Ram Chander, s/o. Raghu Nath (accused No. 3) and Mr. Gajinder Kumar Jain (accused No. 2) challenging the summoning orders dated 12.9.2000 passed by the learned MM.
3. As mentioned above, plot was booked by the father of the complainant in the year 1963 and he made payments towards the said plot. It was booked with the firm. According to the averments made in the plaint, total consideration was Rs. 5,000/- for 200 sq. yds. A sum of Rs. 1,250/-, i.e. 25% of the amount, was paid at the time of booking the plot on 9.4.1963; balance amount was sent to M/s. Greater Delhi Planners, in view of the fact that vide letter dated 29.6.1963, father of the complainant was intimated that the balance payment is to be made to M/s. Greater Delhi Planners. Till his death on 29.9.1996, father of the complainant had not taken any legal steps against the accused persons. In the complaint, the complainant has mentioned that before his death, his father had written letter dated 3.12.1991 to M/s.Greater Delhi Planners to know the exact position of the site, since he wanted to carry out construction over his plot as he had already paid the entire amount. It is explained that the complainant found the papers relating to the booking of the said plot after the death of his father and then he immediately tried to contact Mr. Kulbhushan Sharma (accused No. 1), who is described as the partner/proprietor/managing director of M/s.Greater Delhi Planners. It is alleged that Mr.Kulbhushan Sharma initially refused to talk further and later even threatened the complainant with dire consequences. According to the complainant, it shows that from the very beginning it was the intention of the respondents to extract money from the complainant's father by deceitful means. It is also mentioned that during the lifetime of complainant's father, since there was legal hindrance for transfer of the plot due to a Public Interest Litigation (PIL) pending in the Supreme Court as the Supreme Court had barred the building activities within the radius of 5 kms. from Suraj Kund and Badkhal Lake, which covered the area in question as well, the plot could not have been given at that time. After this restriction was relaxed, the accused persons were liable to make the allotment and their actions in not doing so clearly show that they had intention to cheat the father of the complainant.
4. All the three accused persons have filed three petitions challenging the summoning orders, though on different grounds. Insofar as Mr.Kulbhushan Sharma is concerned, his plea is that no case under Section 420 IPC is made out on the basis of the averments made in the complaint and the evidence on record. He also submitted that complainant had admitted that there was no privity of contract between him and the accused persons nor had he made payment to the accused persons. It was further submitted that the dispute, if any, is of civil nature and if the father of the complainant was not given the plot, remedy was to file a suit for specific performance. During his lifetime, he never filed any such suit for specific performance and such a remedy had become time barred long ago while the complainant's father was still alive. It was also submitted that even the criminal complaint, alleging the offence of cheating, filed more than 30 years after the alleged booking of the plot, was time barred.
5. The other two accused persons, namely Gajinder Kumar Jain and Ram Chander, in addition made the following submissions:
a) Gajinder Kumar Jain and Ram Chander had retired as partners from the firm way back in November 1981 and the complainant as well as his father were well aware of this fact;
b) all the assets and liabilities of the firm were taken over by M/s.Greater Delhi Planners, a firm fully owned and controlled by Mr.Kulbhushan Sharma (accused No. 1). It is for this reason that the remaining installments were paid by the father of the complainant to M/s.Greater Delhi Planners and this fact was within the knowledge of the father of the complainant. Further, even letter dated 3.12.1991, allegedly written by the father of the complainant, was addressed to Mr.Kulbhushan Sharma of M/s.Greater Delhi Planners, as he knew that the petitioners had nothing to do with the firm.
c) Since 1963, the petitioners were not in picture and the father of the complainant also never contacted the petitioners during his lifetime and never lodged any complaint against the petitioners. It is also mentioned that the petitioners were only sleeping partners and never participated in the business of the firm, of which the active partner was Mr.Kulbhushan Sharma only and they were, thereforee, not in charge of the affairs of the said firm and, thus, could not be imp leaded as accused persons.
6. The first and the foremost question which arises for consideration is as to whether prima facie case of cheating is made out by the complainant. As would be clear from the averments made in the complaint itself and the admitted position appearing on record, the plot in question was booked in the year 1963. Thereafter, payments were made in installments from time to time. Though it is not stated as to when the last installment was paid, fact remains that this must have been given much before 1991 as on 3.12.1991 the father of the complainant had written letter to M/s.Greater Delhi Planners mentioning that the payment had been made and wanted to know the exact position of the site as he wanted to construct over his plot. It is not stated as to what happened after he wrote this letter. Fact remains that he was not given the plot. Thus, even if we take his demand made in letter dated 3.12.1991 as the starting point of cause of action, admittedly father of the complainant did not take any steps till 29.9.1996 when he died. If the accused persons were not giving him the plot, he did not allege that he was cheated and file criminal complaint. He did not even file a suit for specific performance.
7. It is the case of the complainant that he found papers relating to this plot after the death of his father, though he has not stated as to when he found these papers. However, what is stated is that when he tried to contact Mr.Kulbhushan Sharma, he refused to talk further. How on the basis of the aforesaid averments the complainant could say that from very beginning it was the intention of the accused persons to extract money from his father by deceitful means. This notion of the complainant would further be falsified as he has himself stated that there was legal hindrance for the transfer of plot due to the orders passed by the Hon'ble Supreme Court in some Public Interest Litigation. Thus, on the one hand, the complainant admits that the accused persons did not give the plot to his father during his lifetime because of the orders of the Supreme Court, and on the other hand, he alleges that there was intention to cheat his father from inception.
8. It is necessary that to constitute the offence of cheating, it is shown that there was fraudulent or dishonest inducement to the person so deceived, to deliver any property to the persons deceiving him. Thus, this fraudulent or dishonest inducement has to be at the time of entering into the deal. thereforee, the necessary ingredient which had to be established by the complainant in the instant case was that from the very beginning, i.e. when the plot in question was booked by the father of the complainant, there was deceitful intention on the part of the accused persons not to give him plot and extract money. However, the complainant has himself stated that the plot could not be given earlier not because of bad intentions but because of the Supreme Court's orders.
9. In Suresh v. Mahadevappa Shivappa Danannava : AIR2005SC1047 , the complainant had alleged that agreement to sell dated 25.12.1988 in respect of a house was executed in favor of his wife by the accused person. The accused person (A-1) sold the said house to the wife of another accused (A-4). Legal notice dated 11.7.1996 was issued by the complainant calling upon the accused No. 1 to execute the sale deed. Accused No. 1 replied to the said notice on 18.7.1996 denying the very existence of the said agreement and the receipt of the amount. Complainant filed the complaint on 17.5.1999, i.e. nearly three years from the date of reply by the accused No. 1, and 10' years from the date of the alleged agreement. The Apex Court, in these circumstances, held that complaint was not at all maintainable at this distance of time and was liable to be dismissed on the ground of inordinate laches on the part of the complainant itself. It was also held that the allegations in the complaint were of civil nature and did not prima facie disclose commission of alleged offence under Section 420 IPC. The instant case of the complainant is even one worse. The alleged agreement is of the year 1963. For almost 33 years, till the father of the complainant was alive, he did not take any legal steps. Even if there was some embargo because of the Supreme Court orders, as per the complainant's own showing, letter dated 3.12.1991 was written by the complainant's father, but even thereafter no steps were taken. Present complaint was filed in the year 1997, i.e. after a lapse of 34 years from the date of alleged booking of the plot. The allegations contained in the complaint do not make out a case under Section 420 IPC and there is inordinate delay and laches.
10. Likewise, Nageshwar Prasad Singh @ Sinha v. Narayan Singh and Anr. : 1999CriLJ598 , was also a case arising out of agreement to sell and earnest money was paid as part consideration. The Supreme Court held that liability, if any, was of civil nature and not criminal. Similarly, in Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. (2000) 4 SCC 168, the Court found that when the allegations in the complaint, read as a whole, did not indicate, expressly or impliedly, any intentional deception on the part of the appellants right from the beginning of the transaction, ingredients of cheating, as mentioned in Section 415 IPC, were not made out. In that case, the Court distinguished cheating from mere breach of contract. After quoting the provisions of Section 415 IPC, which defines cheating, the Apex Court observed as under :
14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. 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. thereforee 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.
16. Judged on the touchstone of the principles noted above, the present case in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120B are concerned even the basic allegations making out a case there under are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana v. Bhajan Lal and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that Respondent 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make Respondent 2 part with the property is not alleged expressly or even impliedly in the complaint. thereforee the core postulate of dishonest intention in order to deceive the complainant-Respondent 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of the process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.
11. Learned Counsel for the complainant submitted that since father of the complainant had paid full consideration but still the plot was not given, it would be clear that the accused had misappropriated the plot and case of cheating and fraud was made out. It has to be noted in the first instance that though the complainant had filed the complaint under Sections 403/406/408/415/420 IPC read with Sections 34/120B IPC, summoning order was passed only under Section 420 IPC read with Section 34 IPC and, thereforee, we are concerned only with the allegations of cheating. As pointed out above, this case had the trappings of civil claim and ingredients of cheating are not made out. Counsel for the complainant relied upon the judgment of the Supreme Court in Lalmuni Devi v. State of Bihar 2001 (1) RCR 228 to buttress his submission that merely when a civil claim is also maintainable does not mean that criminal complaint cannot be maintained. He also referred to the judgment of the Apex Court in Kamaladevi Agarwal v. State of West Bengal 2001 (4) RCR (Crl.) 522 wherein the Supreme Court held that civil proceedings, as distinguished from criminal action, have to be adjudicated and concluded by adopting separate yardsticks. There is no quarrel about this proposition. There may be instances where both civil and criminal remedies are open to an aggrieved person and he is at liberty to take any or both these remedies. However, in the instant case, as mentioned above, not only ingredients of cheating are lacking, but the complaint filed suffers from delay and laches as well.
12. In view of the aforesaid, I need not go into the other submissions advanced by the petitioners - Ram Chander and Gajender Kumar Jain, stating that they had retired from the partnership firm and further that since the said firm was taken over by M/s.Greater Delhi Planners, they have no liability. Accordingly, summoning order dated 12.9.2000 is quashed and the complaint is dismissed.
13. Petitions and the applications stand disposed of.