Punjab-Haryana High Court
Subhash vs Ajmer Singh And Anr on 4 July, 2023
Neutral Citation No:=2023:PHHC:083325
Neutral Citation Number 2023:PHHC:083325
Page No. -:1:-
Case Number CRR-394-2008 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-394-2008 (O&M)
Date of Decision:-4.7.2023
Subhash
... Petitioner
Versus
Ajmer Singh and Another
... Respondents
*****
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
*****
Argued by :-
Mr. Vipul Aggarwal, Advocate
for the petitioner.
Ms. Harpreet Kaur, AAG, Haryana.
*****
KARAMJIT SINGH, J.
1. The present criminal revision petition has been filed by the
petitioner/accused against the judgment dated 1.2.2008 passed by the
Court of Additional Sessions Judge, Jind in criminal appeal No.18 of
9.5.2005 titled as Subhash vs. Ajmer Singh and Another whereby the
appeal filed by the petitioner/accused against the judgment and order
dated 12/22.4.2005 passed by the Court of Sub-Divisional Judicial
Magistrate, Safidon (Jind), whereby the petitioner/accused was
sentenced to rigorous imprisonment for 1 year and pay fine of
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Rs.1,000/- and in default of payment of fine to further undergo
rigorous imprisonment for 2 months under Section 420 IPC and
rigorous imprisonment for 1 year and pay fine of Rs.5,00/- and in
default of payment of fine to further undergo rigorous imprisonment
for 2 months under Section 406 IPC, was dismissed.
2. Being aggrieved the petitioner has filed the present criminal revision
petition challenging both the abovesaid judgments/orders.
3. The revision petition was admitted and the petitioner was granted bail
by this Court vide order dated 27.2.2008.
4. The brief facts of the prosecution case are that the petitioner/accused
entered into an agreement to sell his three-wheeler with complainant-
Ajmer Singh on 4.7.1996 for total consideration of Rs.26,000/- and
the petitioner/accused received Rs.4,000/- as an earnest money and
also handed over the possession of three wheeler to the complainant
and the complainant agreed to make the payment of balance sale
consideration in monthly installments of Rs.3,000/- each along with
interest at the rate of Rs.2% per month. The said agreement to sell
was reduced into writing on the same very day, in the presence of
attesting witnesses Ram Niwas, Inder and Gopi Ram. Thereafter the
accused failed to transfer the aforesaid vehicle in the name of
complainant and in this regard legal notice was also served to him but
the accused did not pay any heed to the said notice. Resultantly
complainant Ajmer Singh filed private criminal complaint under
Sections 420 and 406 IPC against the accused in the Court of
concerned Illaqa Magistrate.
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5. In preliminary evidence complainant himself stepped into the witness
box as PW-1 and also examined Ram Niwas as PW-2 and also placed
on record copy of judgment Ex.C1 and decree-sheet Ex.C2. After
going through the aforesaid preliminary evidence the learned trial
Court summoned the accused vide order dated 4.12.2001. In response
to the said summoning order, the accused appeared before the learned
trial Court and was granted bail.
6. In pre-charge evidence the complainant examined himself as PW-1
and closed the evidence. After hearing both the parties, the learned
trial Court dismissed the complaint and the accused was discharged
vide order dated 16.10.2002. However, the said order was upturned
by the Revisional Court vide order dated 25.8.2004. On the basis of
the said order, the learned trial Court framed charges under Sections
420 and 406 IPC against the accused and thereafter the complainant
examined PW-1 Ram Niwas, PW-2 Joginder Singh (Ahlmad) and PW-
3 Ajmer Singh and closed his evidence.
7. The accused was examined under Section 313 Cr.P.C. wherein he
pleaded innocence and false implication. However the accused had
not led any evidence in his defence.
8. After hearing both the sides, the learned trial Court convicted the
accused under Sections 420 and 406 IPC and sentenced him to
imprisonment as detailed in the opening paragraph of this judgment.
9. The accused preferred an appeal against the judgment and order
passed by the learned trial Court. The said appeal was dismissed by
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the Court of Additional Sessions Judge, Jind vide judgment dated
1.2.2008 and the judgment of conviction and order of sentence passed
by the learned trial Court were upheld.
10. I have heard the counsel for the petitioner and the State counsel.
11. The counsel for the petitioner has inter alia contended that the
impugned judgments/order passed by the Courts below are not
sustainable in the eyes of law. The counsel for the petitioner has
further contended that there was no dishonest intention on the part of
the petitioner to deceive the complainant. That in case the petitioner
committed any breach of contract, the complainant could have
claimed damages. It has been further contended that on the basis of
the agreement to sell dated 4.7.1996, the complainant filed civil suit
for recovery of Rs.23,980/- and the same was decreed against the
petitioner vide judgment dated 22.1.2001 (Annexure C-1) by the
Court of Additional Civil Judge (Senior Division), Safidon and the
appeal preferred against the said judgment and decree by the accused
was also dismissed by the 1st Appellate Court. The counsel for the
petitioner has further contended that in this manner, the complainant
has been properly compensated by the petitioner.
12. The counsel for the petitioner has further contended that the
agreement to sell in question was vague and the registration number
of the three wheeler which was proposed to be sold, was not
mentioned in the said agreement and in the present case the
complainant failed to examine the official of the concerned
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registration authority to prove as to who was the registered owner of
vehicle at the time of execution of the agreement to sell.
13. The counsel for the petitioner in the end has submitted that no offence
under Sections 406 and 420 IPC is made out against the petitioner as
he was having no mala fide intention to cheat the complainant, when
the agreement to sell dated 4.7.1996 was executed by him in favour of
the complainant. So prayer is made that the present criminal revision
petition be allowed.
14. The present revision petition is resisted by the State counsel, who
while supporting the impugned judgments/order, has submitted that
the petitioner misappropriated amount of Rs.4,000/- which was
received by him as an earnest money at the time of execution of
agreement to sell dated 4.7.1996. It has been further contended that
the petitioner entered into said agreement to sell dated 4.7.1996 with
intention to deceive the complainant as later on the petitioner failed to
get the three-wheeler in question, transferred in the name of the
complainant.
15. I have considered the submissions made by the counsel for the parties.
16. The Hon'ble Apex Court has time-and-again reiterated that mere
breach of contract cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is shown right at the
beginning of transaction. In this context reference is made to Hridaya
Ranjan Pradesh Verma and Ors. Vs. State of Bihar and Anr.
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(2000)4 SCC 168 and Mitesh Kumar J. Sha vs. State of Karnataka
and Ors, 2021(4) RCR (Criminal) 573.
17. In the instant case there is nothing on the record to prove that the
petitioner was having mala fide intention to cheat the complainant,
since the very beginning when the agreement to sell dated 4.7.1996
was executed by the petitioner in favour of the complainant with
regard to a three-wheeler.
18. As per the prosecution case, there was breach of contract on the part
of the petitioner as he failed to get transferred the three-wheeler in the
name of the complainant on the basis of agreement to sell dated
4.7.1996. Admittedly for any such breach of contract, the
complainant was entitled to claim compensation. It appears on the
record that the suit for recovery of Rs.23,980/- as damages filed by the
complainant was decreed by the Court of Civil Judge, Safidon and the
appeal filed by the petitioner against the said judgment/decree was
also dismissed by the 1st Appellate Court.
19. In the instant case the complainant has also failed to prove that there
was any dishonest intention on the part of the petitioner to
misappropriate amount of Rs.4,000/- which was received by him as an
earnest money or to dishonestly use or dispose of the same.
20. Further, in the recent past, the Hon'ble Apex Court has expressed its
disapproval for imparting criminal flavor to a civil dispute, made
merely to take advantage of a relatively quick relief granted in a
criminal case in contrast to a civil dispute. In this regard reference is
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made to G. Sagar Suri vs. State of U.P. 2000(1) RCR (Criminal) 707.
The same view has been reiterated by the Hon'ble Supreme Court in
Mitesh Kumar J. Shah Kumar's case (supra) wherein criminal
proceedings were initiated under Section 406, 420 read with Section
34 IPC against the accused persons on the basis of breach of
agreement. The Hon'ble Supreme Court while quashing the said FIR
specifically observed that such an exercise is nothing but an abuse of
the process of law which must be discouraged in its entirety.
21. In the given circumstances of the present case, it could be easily
inferred that the complainant gave criminal colour to a civil dispute
arising out of breach of contract.
22. In the light of the above discussion, this Court is of the view that the
prosecution/complainant has failed to prove its case against the
petitioner under Sections 420 and 406 IPC. Accordingly the
impugned judgments/orders passed by the Court of Additional
Sessions Judge, Jind and Court of Sub-Divisional Judicial Magistrate,
Safidon are set aside and the petitioner is acquitted of the offences
punishable under Sections 420 and 406 IPC.
( KARAMJIT SINGH)
4.7.2023 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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