S. Surbir Singh vs Mahender Kumar Rajput And Ors.
1999 Latest Caselaw 635 Del

JUDGMENT

M.S.A. Siddiqui, J.

1. This revision is directed against the order dated 19.4.1996 of Mr. Sanjay Sharma, Metropolitan Magistrate, New Delhi in Crl. Case No. 371/92 dropping the proceedings against the respondent.

2. The circumstances leading upto the impugned order of the learned Magistrate may be indicated. In 1991, the respondents agreed to sell to the petitioner a plot of land measuring 1150 sq. yards @ Rs. 1125/- per sq. yard. It is alleged that at the time of the said agreement, the respondent falsely represented to the petitioner that the said plot had been approved by the Ghaziabad Development Authority for commercial use and thus fraudulently induced the petitioner to pay a sum of Rs. 2,01,000/- to them. However, the petitioner refused to pay the balance amount of sale consideration as it was discovered that the said plot was not approved by the Ghaziabad Development Authority for commercial use. On 2.8.1992, the petitioner sent a notice to the respondents demanding refund of money paid under the agreement. On respondents' refusal to pay the amount in question, the petitioner filed a complaint under Sections 406/420/120-B, I.P.C. against the respondents. By the order dated 9.1.1995, the learned Magistrate took cognizance of the offences under Sections 420/120-B, I.P.C. and summoned the respondents. After-entering the appearance, respondents filed an application before the learned Magistrate for dropping the proceedings on the ground that the allegations made in the complaint do not constitute any offence. By the impugned order dated 19.4.1996, the

learned Magistrate, relying upon the decision of the Supreme Court in KM. Mathew v. State of Kerala, , dropped the proceedings holding that the dispute between the parties is of civil nature. Feeling aggrieved, the petitioner has come up before this Court under Section 401, Cr.P.C.

3. Learned Counsel for the petitioner has strenuously urged that the impugned order suffers from a jurisdictional error as the learned Magistrate had no jurisdiction to drop he proceedings before completion of the trial. In my opinion, the said submission of the learned Counsel for the petitioner deserves to be repelled. Reference may, in this connection, be made to the following observations of the Apex Court in KM. Mathew v. State of Kerala, (supra) :

"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."

4. In the instant case, the dispute between the parties is with regard to the agreement to sell the plot in question. The petitioner has produced the receipts (Annexure P-1 & P-2) evidencing payment of certain amount to the respondent towards sale consideration of the plot. Both the receipts contain the following terms and conditions :

"1. E. & O. E.

2. Receipt is valid after encashment of cheques.

3. Advance/installment money will not be refunded.

4. The name of the defaulter shall be struck off, if he/she does not pay two monthly instalments continuously.

5. Without prejudice to our earlier action for non-payment of any earlier demand.

6. Every member has to deposit the instalment by 10th of each month.

7. Sale deed shall be executed after receiving the full and final payment as per terms and conditions of the company.

8. Possession of plot will be given only after the execution of sale deed.

9. All disputes are subject to the jurisdiction of Ghaziabad District.

DECLARATION

I am agreed with the terms and conditions mentioned above and will be abide by the charges, rules and regulations of company in future.

Member's Signature"

5. There is nothing in the said receipts to show that the respondents had represented to them that the plot in question had been approved by the Ghaziabad Development

Authority for commercial use. In other words, there is nothing in the receipts to show or suggest that the respondent had dishonest intention at the time the petitioner paid the amount towards sale consideration. The fact that the respondents subsequently did not abide by their commitment of executing a sale deed might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the alleged offence of cheating. Thus the elements necessary for an offence of cheating under Section 415, I.P.C. were absent inasmuch as it was not made out that the intention of the respondents was guilty at the time of making the promise to sell the plot which is an essential ingredient to prove the offence of cheating. Such an intention cannot be inferred from the fact that the respondents could not subsequently fulfill the promise.

6. Undisputedly the petitioner has filed a suit against the respondents for recovery of the amount paid to them in respect of the transaction in question. In this view of the matter, the learned Magistrate has rightly concluded that the material on record does not constitute any offence against the respondents. In my opinion, the impugned order does not suffer from any legal infirmity warranting interference of this Court.

7. For the foregoing reasons the revision petition is dismissed.