Delhi High Court

Naresh Amar vs State And Another on 5 May, 2011

Author: A. K. Pathak

           IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. No. 3431/2010

%             Judgment decided on: 5th May, 2011


NARESH AMAR                                       ....PETITIONER

                          Through:   Mr. Rajat Aneja, Adv.
                          Versus

STATE AND ANOTHER                                 .RESPONDENT

                          Through:   Mr. M.P. Singh, APP for the
                                     State.
                                     Mr. V. Kanagaraj, Sr. Adv.
                                     with Mr. Vipin Jain, Adv. for
                                     R-2.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers              No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                 No

       3. Whether the judgment should be                     No
          reported in the Digest?

A.K. PATHAK, J. (Oral)

1. By this petition under Section 482 Cr.P.C., petitioner has

prayed that the summoning order dated 24 th July, 2009 passed

by Chief Metropolitan Magistrate, Delhi (CMM) as well as

complaint titled as "Ron Bijlani vs. Naresh Amar and another",

be quashed.

2. Briefly stated, facts of the case are that the respondent

No. 2 filed a complaint against the petitioner and his wife Smt.

Vineeta Amar before the CMM praying therein that they be

summoned, tried and punished for the offences under Sections

403/406/420/506/34 and 120-B IPC. After recording pre-

summoning evidence, CMM has held that a prima facie case

was made out against the petitioner for having committed the

offences punishable under Sections 406/506 IPC. As regards

Smt. Vineeta Amar is concerned, it was held that no case was

made out against her for her summoning.

3. It was alleged in the complaint that respondent No.2 was

a senior citizen living in United States of America. Petitioner

was his friend since 1996. In the month of February/March,

2002 respondent No. 2 contacted petitioner on phone and

expressed his desire to purchase a plot of land admeasuring

200 sq. yds. at Gurgaon (Haryana), as he wanted to settle in

India after his retirement. Respondent No. 2 visited India on

26th July, 2002 and met petitioner who assured that he will do

the needful for the purchase of 200 sq. yds. plot at Gurgaon by

the respondent No. 2. As per the petitioner cost of the plot

would be about `20 lacs. Respondent No. 2 paid a sum of `3

lacs in cash along with two cheques both dated 1st August,

2002 and drawn on CFS Bank, Ozone Park, New York for US

$16000 and US $ 597.51 respectively. These cheques were

encashed by the petitioner on 12th August, 2002. During the

respondent's visit to India between 26th January, 2004 to 24th

May, 2004, petitioner stated that a plot in Phase-III, Gurgaon

was identified and necessary documents would be executed in

favor of respondent No. 2 on payment of balance amount of `4

lacs. However, subsequently petitioner avoided to execute the

documents despite several requests. Finally, on 15th December,

2004 petitioner refused to get the documents executed and

hand over the possession of the plot to respondent No. 2.

Thus, it was alleged that petitioner had committed criminal

breach of trust and had misappropriated US $ 16000, US $

597.51 and `3 lacs in cash of the respondent No. 2 to the

petitioner. It was also alleged that petitioner had threatened the

respondent No. 2 with dire consequences in case he demanded

his money back.

4. Case of the petitioner is that he had extended a friendly

loan of `13 lacs to respondent No. 2. To secure the loan

respondent no. 2 had handed over possession of his Flat No.

236, Supreme Enclave, Mayur Vihar, Phase-I, Delhi-110091 to

the petitioner with the assurance that he would not demand its

possession till the loan amount was not paid. In order to avoid

re-payment of `13 lacs to the petitioner respondent has filed

present complaint on flimsy grounds. Allegations leveled in the

complaint clearly show that disputes between the parties are

purely of civil nature. Non-execution of documents pursuant to

an oral agreement, at best, is case of breach of contract

entailing civil liability and appropriate remedy of that is to file a

suit for Specific Performance and not the criminal complaint.

Learned counsel has contended that the complaint is nothing

but abuse of process of court and is liable to be quashed.

Reliance has been placed on Murari Lal Gupta vs. Gopi Singh,

(2005) 13 SCC 699. It is further contended that the averments

made in the complaint were false to the knowledge of the

respondent No. 2. Respondent No. 2 had filed a suit for

recovery in the court of Additional District Judge, Delhi with

the same allegations. Ex-parte decree has been passed in the

said suit to the tune of `7,69,835/-. Petitioner has already

taken steps to get the ex-parte decree set aside. Even

otherwise, in the said suit, story of payment of cost of `3 lacs

and cheque of US $ 597.51 has been disbelieved, thus, falsifies

the averment in the complaint. He further contends that in a

civil suit pending between respondent No. 2 and his wife,

respondent No. 2 has filed affidavit by way of evidence, wherein

he has taken altogether a different stand. It was stated by him

in the affidavit that US $ 16,000/- was given by him to a friend

which has not been returned to him. This shows that

allegations leveled by the respondent No. 2 in the complaint

were false and on the basis thereof no prosecution can

continue. In nutshell, case of the petitioner is that the

complaint has been filed with an ulterior motive to harass the

petitioner and its continuance would amount to abuse of

process of court.

5. Per contra, learned Senior Counsel for the respondent

has vehemently contended that the complaint case cannot be

quashed by the High Court in exercise of its inherent power

under Section 482 Cr.P.C. at this nascent stage. High Court

cannot sift and weigh the material placed on record to form an

opinion whether or not a, prima facie, case against the accused

is made out. Inherent powers cannot be exercised to stifle a

legitimate prosecution. The remedies under the criminal law

and civil law are not mutually inclusive but co-intensive; they

differ in their content, scope and consequence and, therefore,

even when a civil remedy is available, a criminal prosecution is

not barred. As per the Senior Counsel, complaint discloses

commission of offences under Sections 406/506 IPC against

the petitioner and the same were sufficient to summon the

petitioner.

6. The principle providing for exercise of the power by a

High Court under Section 482 Cr.P.C. to quash a criminal

proceeding is well settled. The court shall ordinarily exercise

the said jurisdiction, inter alia, in the event the allegations

contained in the FIR/complaint, even if on face value are taken

to be correct in their entirety, does not disclose commission of

an offence. This jurisdiction has to be exercised to prevent

abuse of process of law or otherwise to secure the ends of

justice. If the court is satisfied that prosecution has been

launched to harass and victimize the accused then High Court

will be justified in quashing the proceedings.

7. First of all, I am of the view that complainant has taken

inconsistent stand in different litigations. In the complaint, he

has alleged that he intended to buy a plot in Gurgaon and for

this purpose he had approached the petitioner. Petitioner

assured that he will assist respondent in purchasing of a plot

of land admeasuring 200 sq. yds. at Gurgaon in State of

Haryana. On his this assurance, he had paid `3 lacs in cash,

two cheques of US $ 16000 and US $ 597.51 each; whereas in

the civil litigation pending between him and his wife he has

deposed that he had extended loan of US $ 16000 to the

petitioner in the year 2002 but the said amount had not been

returned by him. He had obtained ex-parte decree against him

but the same was merely a paper decree having remained

unexecuted. It would be relevant to refer to the relevant paras

of the affidavit, which read as under:

"36. That the deponent further says that he had give a loan of US $ 16,000 to one Sh. Naresh Amar who had not returned the loan to the deponent, although deponent had filed a suit against him and had been granted a decree against Mr. Naresh Amar but that is only a paper decree and the same has not been executed till date and the execution of the same is pending. A copy of the decree sheet is Ex. DW-1/18 "37. The said loan was advanced to Sh. Naresh Amar in the year 2002 from the personal savings of the deponent working in US during 1998 to 2002."

8. Inconsistent stand taken by him clearly falsifies

allegations in the complaint. Even in the ex-parte judgment

passed by the Additional District Judge, Delhi plea of

respondent No. 2 that he had paid `16 lacs to the petitioner

has been disbelieved and decree has been passed for much

lower amount. Facts mentioned above clearly show that no

prima facie case is made out against the petitioner for having

committed the offence under Sections 406 IPC. As regards

allegations of threats are concerned the same are too vague and

are not sufficient enough to attract the ingredients of Sections

506 IPC. The exact words spoken by the petitioner have not

been reproduced in the complaint. Thus, in my view, Trial