Punjab-Haryana High Court
Vishal Kumar Narang vs Inderjit And Ors on 22 March, 2024
Neutral Citation No:=2024:PHHC:043726
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
237 CRM-A-10876-MA of 2018
Date of Decision: 22.03.2024
Vishal Kumar Narang ...Applicant
Versus
Inderjit and others ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. L.M. Gulati, Advocate, for the applicant.
N.S.SHEKHAWAT, J. (Oral)
1. The applicant has filed the present application under
Section 378(4) Cr.P.C. with a prayer to grant leave to appeal against
the judgment dated 08.10.2018 passed by the Judicial Magistrate 1st
Class, Amritsar, whereby, the respondents were ordered to be
acquitted of the charge under Sections 420/34 IPC in a complaint
bearing No. 108 dated 02.01.2013 titled as "Vishal Kumar Narang
Vs. Inderjit and others".
2. The complaint in the present case was filed under
Sections 420 and 34 IPC by the applicant against respondents No. 1 to
3. The respondents No. 2 and 3 are sons of respondent No. 1 and it
was alleged that the respondents/accused owned a property bearing
building khanashumari No. 3376/9, measuring 100 sq. yards, situated
at Gali Pipian Wali, Katra Karam Singh, Amritsar. Respondent No. 1
represented to the applicant that since he was running short of money
on account of the big loan liabilities to the bank as well as to the
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private individuals and, as such, he wanted to sell the property stated
above and agreed that he would get the property redeemed from the
bank and would take no objection certificate and would execute the
sale deed in favour of applicant on or before 04.09.2011. He also
agreed that he would hand-over the possession to the applicant if the
applicant paid a good amount to the respondents. Believing upon the
above said assurance made by the respondents no. 1 to 3, who all had
come to the applicant for the sale of the property and in fact had been
intentions from the day one in their mind and with a conspiracy and
cheating in their mind right from the beginning day one, all the
respondents allured the applicant and enticed him to handover the
amount of Rs. 10,00,000/- to the respondent No. 1 and promised that
they would execute the sale deed after getting the property redeemed
from Bank of India. It was further stated in the complaint that
applicant believed the words of the respondents and could not see
their bad intentions and, as a result thereof, the applicant handed over
a sum of Rs. 10,00,000/- to the respondents. The applicant insisted
upon making the payment of cheque but the respondents insisted that
they would receive the amount in cash and they have paid the same in
the bank for redeeming the property and a sum of Rs. 10,00,000/- was
paid to the respondents, which was duly reflected in the balance sheet
of the firm of the applicant. Even, the respondents entered into an
agreement to sell on 05.07.2011, which was signed and thumb marked
by respondent No. 1 and was signed by the applicant also. In the
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presence of Vijay Kumar and Ram Lal, a sum of Rs. 10,00,000/- was
paid in cash and the applicant was handed over the possession of the
property, which was duly mentioned in the agreement to sell dated
05.07.2011. Even the last date for execution of the registered sale
deed was fixed as 04.09.2011 and it was agreed that a sum of
Rs. 5,00,000/- shall be paid to respondent No.1 at the time of the
execution of the sale deed. Since 04.09.2011 was holiday, the
applicant appeared before the Sub-Registrar on 05.09.2011 alongwith
the handed over cash amount and the registration charges. However,
the respondent No. 1 did not appear for the execution of the sale deed
nor get the property redeemed, nor obtained 'NOC' from the bank.
Thus, even after receipt of Rs. 10,00,000/- from the applicant and
making false assurances, the property was not transferred to the
applicant. Thereafter, the applicant got a legal notice dated 06.12.2011
served upon the respondents, but to the utter surprise of the applicant,
the respondent No. 1 had denied the existence of the agreement to sell
itself and, thus, it was apparent that the respondents had the bad
intention to cheat from day one and induced the applicant to part with
the valuable security in the shape of the money and a false
compromise was made that the respondents would execute a sale deed
in favour of the complainant/applicant, after getting the property
redeemed from the bank. However, the respondents had hatched a
criminal conspiracy and had no intention to transfer the property in
favour of the applicant and with a view to cheat the applicant, they
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had induced him to deliver a sum of Rs. 10,00,000/- to the
respondents.
3. Learned counsel for the applicant submits that in the
present case, the ingredients of offence under Section 420 IPC were
fulfilled and the trial Court overlooked the evidence led by the
applicant in the shape of exhibits Ex.P-1 to Ex.P-26. Even, apart from
the sufficient documentary evidence, the witnesses had appeared to
support the case of the prosecution and the intention of the
respondents was to cheat the present applicant. Further, the trial Court
had wrongly observed that it was a case of civil dispute between the
parties and had been wrongly projected as a criminal offence and the
said findings has resulted into manifest failure of justice.
4. I have heard the learned counsel for the applicant and
perused the entire record.
5. While dismissing the complaint, the trial Court observed
as under:-
"In the instant allegations of case, as per
complainant the Vishal Kumar Narang and his
deposition as CW-1, accused no.1 Inderjit had entered
into agreement to sell his property vide agreement Ex.
P1 and received Rs.10 lac being earnest money from the
complainant. It was also agreed inter se them that
remaining amount of Rs.5 lac will be paid by the
complainant to the accused No.1 at the time of
registration of sale deed i.e. on 4.9.2011. But the
accused has never turned up for the registration of sale
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deed in favour of the complainant despite service of
legal notice Ex.C4. However, in order substantiate the
fact that the accused No.1 has entered into an agreement
to sell dated 5.7.2011 Ex. P1 with him and he has parted
with money to the tune of Rs.10 lac, the complainant has
placed on record certified copy of judgment and decree
dated 21.2.2017 Ex. C27 and Ex.C28 passed by
Sh. Satish Kumar, learned Civil Judge (Jr. Division),
Amritsar, whereby the suit of the complainant/ plaintiff
for Possession and Specific Performance of agreement
to sell dated 5.7.2011 was decreed. Accordingly, the
crucial aspect to be noted in the law relating to cheating
is the intention of the person accused of cheating. Most
often, especially in issues relating commercial
transactions, the disputes are difficult to separate in
terms of their civil and criminal liabilities. As stated
earlier, the crucial difference between a criminal cause
of action as against a purely civil transaction is the
intention of the person at the time when the cause of
action arose or the alleged offence commenced. The
important aspect is to examine whether at that stage, the
accused deliberately or intentionally induce the other
person to part with property or to do an act or desist
from doing an act, or whether it was only subsequently
that the dispute arose. No clear cut rule can be evolved
in this regard, and the fact and circumstances of each
case will determine the way in which a particular issue
can be address by the Courts.
In the present case notice dated 6.12.2011 Ex.C4,
which was served upon the accused by the complainant,
reveals that the accused have no such criminal intention
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to cheat the complainant from very inception of the
transaction, as alleged by the complainant, which is key
ingredient to attract the provision of section 420 of IPC.
If the accused was (were) having any such kind of
intention at the relevant point of time i.e. from the very
inception, the contents of notice dated 6.12.2011 Ex.C4,
would have certainly spoken about the same. But no iota
of fact regarding the offence of cheating allegedly
committed by the accused with requisite intention has
been pleaded by the complainant in the said notice
Ex.C4 and the complainant has also failed to prove the
said fact during his entire evidence".
6. In the present case, the trial Court had correctly held that
from the allegations levelled by the applicant, it was established that
the dispute between the parties was of civil nature; however, by
twisting the facts of the present case, the applicant had wrongly filed
the criminal complaint by projecting the case to be of criminal nature.
Even, there was no evidence on record to hold that the respondents
had deliberate intention to cause wrongful gain or wrongful loss to
either side and such intention existed from the very inception. It is
apparent from the nature of transaction between the parties that it was
a case of simple breach of terms of the contract by the respondents
and the applicant had the liberty to move to the Civil Court for an
appropriate relief. However, instead of filing a civil suit, the applicant
chose to file a criminal complaint by concocting a spurious story and
the complaint itself was not maintainable. Apart from that, the
ingredients of the offence under Section 420 IPC were not fulfilled.
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7. While discussing the scope of interference by the
Appellate Court, while dealing with the judgment of acquittal, the
Hon'ble Supreme Court held in the matter of Bhaskar Rao and
others Vs. State of Maharashtra AIR 2018 SC 2222:2018 (5) RCR
(Criminal 288) as follows:-
"14. As the trial Court and High Court, having
appreciated the evidence on record has come to
diametrically opposite conclusions, mandating herein to
observe certain witness statements which may have an
important bearing in this case. In the processes of
appreciating the evidence at the appellate stage, we
need to keep in mind the views of this Court as expressed
in Tota Singh and Anr. Vs. State of Punjab, 1987 (2)
RCR (Criminal) 35:1987 CriLJ 974.
The High Court has not found in its judgment that the
reasons given by the learned Sessions Judge for
discarding the testimony of PW-2 and PW-6 were either
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal merely
on the ground that as a result of such re-appreciation,
the High Court was inclined to reach a conclusion
different from the one recorded by the learned Sessions
Judge. This Court has repeatedly pointed out that the
mere fact that the Appellate Court is inclined on a re-
appreciation of the evidence to reach a conclusion which
is at variance with the one recorded in the order of
acquittal passed by the Court below will not constitute a
valid and sufficient ground for setting aside the
acquittal. The jurisdiction of the Appellate Court in
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dealing with an appeal against an order of acquittal is
circumscribed by the limitation that no interference is to
be made with the order of acquittal unless the approach
made by the lower Court to the consideration of the
evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the Court below
is such, which could not have been possibly arrived at
by any court acting reasonably and judiciously and is,
therefore, liable to be characterised as perverse: Where
two views are possible on an appraisal of the evidence
adduced in the case and the court below has taken a
view which is plausible one, the Appellate Court cannot
legally interfere with an order of acquittal even if it is of
the opinion that the view taken by the Court below on its
consideration of the evidence is erroneous."
15. In Ramesh Babulal Doshi v. State of Gujarat,
1997(3) RCR (Criminal) 62: 1996 CrilJ 2867, this
Court observed as under:
"This Court has repeatedly laid down that the mere fact
that a view other than the one taken by the trial Court
can be legitimately arrived at by the appellate Court on
reappraisal of the evidence cannot constitute a valid and
sufficient ground to interfere with an order of acquittal
unless it comes to the conclusion that the entire
approach of the trial Court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable. While sitting in judgment over
an acquittal the appellate Court is first required to seek
an answer to the question whether the findings of the
trial Court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
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answers the above question is the negative the order of
acquittal is not to be disturbed."
8. Keeping in view the above discussion, this Court is of
considered opinion that the applicant had miserably failed to prove
the case beyond reasonable doubt and the learned trial Court had
correctly acquitted the respondents. As a consequence, the impugned
judgment dated 08.10.2018 passed by the Judicial Magistrate 1st
Class, Amritsar is upheld and affirmed.
9. Consequently, the application seeking leave to appeal
sans merit and is accordingly ordered to be dismissed.
10. All pending applications, if any, are disposed off,
accordingly.
22.03.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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