Punjab-Haryana High Court
Karun Madan vs Vinod Kumar Thapar And Others on 17 November, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Misc. No. M-24694 of 2001 1
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. M-24694 of 2001
Date of Decision: 17.11.2011
Karun Madan
... Petitioner
Versus
Vinod Kumar Thapar and Others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
1. Whether Reporters of local papers may be allowed to see the
judgment? - Yes
2. Whether to be referred to the reporters or not? - Yes
3. Whether the judgment should be reported in the Digest? - Yes
Present: Mr. Gurcharan Dass, Advocate
for the petitioner.
None for respondents No.1 and 2.
Mr. S.S. Chandumajra, Deputy Advocate General,
Punjab, for respondent No.3.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C. seeking quashing of the orders dated 4.4.2000 (Annexure P4), passed by the Court of Judicial Magistrate Ist Class, Ludhiana, whereby the Court came to conclusion that no charge can be framed against respondent No.1-Vinod Kumar and had discharged him. The impugned order (Annexure P4) was made subject matter of the revision petition. The Revisional Court also concurred with the findings returned by the trial Court and held that no offence has been committed by respondent Criminal Misc. No. M-24694 of 2001 2 No.1.
In the present petition, the orders dated 4.4.2000 (Annexure P4), passed by the Court of Judicial Magistrate Ist Class, Ludhiana and the order of affirmation dated 5.5.2001 (Annexure P5), passed by the Court of Sessions Judge, Ludhiana, are being assailed.
The grievance of the petitioner can be summed up from the complaint dated 19.12.1998 (Annexure P1). It is stated therein that accused/respondent No.1-Vinod Kumar had executed two agreements to sell dated 10.10.1997 and 3.4.1998 (Annexures P6 and P7), respectively, with the petitioner and received earnest money. As per the deal, the sale deed was to be executed on or before 31.10.1998 on payment of the balance sale consideration. The case of the petitioner is that instead of performing his part of the agreement, respondent No.1- Vinod Kumar had executed the sale deed dated 18.11.1998 (Annexure P8) in favour of respondent No.2-Ashok Kumar. It is stated that the breach of agreements to sell (Annexures P6 and P7) amounts to cheating as respondent No.1 retained the earnest money, which was paid by the petitioner through cheque. Thus, according to learned counsel for the petitioner, respondent No.1 had committed offence falling under Section 420 read with Section 120-B IPC.
The trial Court, while discharging respondent No.1, held that the breach of agreement will fasten respondent No.1 with civil liability and no criminal case is made out. The following findings, returned by the trial Court, are required to be noticed:-
"12. The Honourable Supreme Court of India referring to illustration (g) in the Section 415 of IPC Criminal Misc. No. M-24694 of 2001 3 made it clear that liability if any, arising by the breach of agreement is civil in nature and not criminal and set aside the order of the Honourable High Court and the proceedings before the learned Magistrate were quashed with costs of ` 10,000 in favour of the applicant."
13 to 17. XXX XXX XXX XXX XXX
18. In the case at my hands, it has not been disputed that the accused Vinod Kumar Thapar was fully competent to sell the property in dispute and has allegedly executed above referred two agreements. Therefore, the facts of this case are different from the facts of the aforesaid case." 19 to 23. XXX XXX XXX XXX XXX
24. As discussed above, the case law referred to by the counsel for accused is fully applicable to the facts of he present case. The submission made by the APP that the accused Vinod Kumar has sold the property even before the stipulated date for execution of sale deed in favour of the complainant, to other person namely Ashok Kumar and rendering himself handicapped shows that the accused Vinod Kumar has intended to cause cheating to the complainant is not tenable as it has been made clear by the Honourable Supreme Court of India in the case of Nageshwar Parsad Singh (supra) Criminal Misc. No. M-24694 of 2001 4 wherein while referring to illustration (g) of Section 415, the Honourable Apex Court has observed in clear words that such transaction was purely within the purview of civil liability."
The Revisional Court below upheld the above findings and observed as under:-
"7...In Haridaya Ranjan Pd. Verma and Others Versus State of Bihar and another 2000(1) Apex Court Journal, 520 (S.C.) it was held by the Hon'ble Supreme Court that mere breach of contact cannot give rise to criminal prosecution for cheating unless the intention is shown right at the beginning of the transaction. It was further laid down in that case that to hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. Further that intention from the beginning cannot be attributed on mere failure to keep up the promise subsequently. Another ruling of the Hon'ble Supreme Court in Nageshwar Prasad Singh alias Sinha Versus Narayan Singh and another 1998(4) Recent Criminal Cases 207 also relied upon to the same effect. The above quoted rulings are fully applicable to the facts of the present case. In the instant case as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be Criminal Misc. No. M-24694 of 2001 5 sold and there was no dispute about the same. There also did not appear to be any fraudulent intention on his part at the time of execution of the impugned agreements when he had title in the disputed property. As stated above, the complainant is stated to have since filed a suit for specific performance of the impugned agreements of sale made by accused Vinod Kumar in his favour. In case accused Vinod Kumar allegedly subsequently sold that property in favour of Ashok Kumar in breach of the conditions of those agreements of sale the remedy available to the complainant was purely of civil in nature especially when it was also mentioned in the agreement that upon failure of accused Vinod Kumar to execute the sale deed in terms of the agreements he was liable to pay interest on the earnest money as specified in the agreements. During the course of arguments the learned Public Prosecutor for the state relied upon a ruling of the Hon'ble Supreme Court in M/s Medchl Chemicals and Pharma Pvt. Ltd. Versus M/s Biological E Ltd. and others 2000(1) Recent Criminal Cases 650, wherein it was held that simply because there was a remedy provided for breach of contract that did not by itself close the Court to come to the conclusion that the civil remedy is the Criminal Misc. No. M-24694 of 2001 6 only remedy and that both criminal law and civil law remedy can be perused in diverse situations. There is no dispute regarding the leal proposition laid down by Apex Court but as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be sold and there was hardly any element of cheating at the time to execution of the impugned agreement. The rights and interests of the parties will be determined in the suit for specific performance already filed by the complainant in the case. However, keeping in view the facts and circumstances discussed above the accused or any of them hardly appeared to have committed any offence in the case when the dispute between the parties regarding alienation of the disputed property in breach of the impugned agreements was merely of civil nature and the accused hardly appeared to have committed any offence by the same. In these circumstances the impugned order of the learned trial Magistrate ordering discharge of the accused respondents in the case do not in any way suffer from any factual or legal infirmity for which to interfere in this revision and the revision petition is hereby dismissed."
The present petition was listed for arguments and it was adjourned sine die to await the outcome of the civil suit. Learned Criminal Misc. No. M-24694 of 2001 7 counsel for the petitioner submits that civil suit has not yet been decided.
This Court, in Lakhbir Singh v. State of Punjab and Others 2011(3) Recent Criminal Reports 155, had dealt with the argument that whether criminal proceedings should be stayed during the pendency of civil suit or not and relying upon five Judges' Bench of Hon'ble the Apex Court in M.S. Sherif and Another v. State of Madras and Others AIR 1954 SC 397, another five Judges' Bench in Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another (2005)4 Supreme Court Cases 370, has observed as under:-
"24. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff vs. State of Criminal Misc. No. M-24694 of 2001 8 Madras AIR 1954 SC 397 give a complete answer to the problem posed :
"(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
(16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; Criminal Misc. No. M-24694 of 2001 9
that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
A Full Bench of Lahore High Court to which this Court is a successor, in B.N. Kashyap v. Emperor AIR 1945 Lahore 23 has already held that except in the cases which are specified in Section 41 of the Indian Evidence Act, the findings of Civil Court are not binding on the criminal Court as both Civil and Criminal Courts act in their own domain. Hence, this Court has proceeded to decide the present case on merits without awaiting final outcome of the civil suit. Criminal Misc. No. M-24694 of 2001 10
Learned counsel for the petitioner to buttress his argument that the offence of cheating has been committed and the judgment of both the Courts below cannot sustain in the eyes of law, has relied upon M/s Jnana Mandal Limited v. Amrit Paper Limited 2000 (1) Recent Criminal Reports 716, wherein it was held that civil liability and criminal liability may co-exist, therefore, the complaint can be maintained. Further reliance has been placed upon a Single Bench judgment of this Court rendered in Bipin Kumar Bhatnagar v. Pt. Raghbir Saran 1992 (1) Recent Criminal Reports 424 to say that for breach of agreement to sell, offence under Section 420 IPC is made out. However, learned counsel for the petitioner, while relying upon these judgments has made no efforts to distinguish the judgment rendered by Hon'ble the Apex Court in Nageshwar Prasad Singh alias Sinha v. Narayan Singh and Another 1998(4) Recent Criminal Cases 207 upon which reliance was placed by the trial Court. Learned counsel for the petitioner has further submitted that during the subsistence of agreements (Annexures P6 and P7), accused/respondent No.1-Vinod Kumar had executed the agreement to sell with respondent No.2-Ashok Kumar and received a sum of ` 2,00,000 through cheque, therefore, it should be construed that he had entertained the dishonest intention at the time when the agreements to sell (Annexures P6 and P7) were executed.
In Suresh v. Mahadevappa Shiappa Danannava and Another 2005(2) Recent Criminal Cases 29, it was held that where sale deed, in pursuance of an agreement to sell, has not been executed, it will amount to a dispute which is civil in nature and it cannot be said that at the time of execution of agreement to sell, the Criminal Misc. No. M-24694 of 2001 11 accused had an intention to cheat. Similar view has been reiterated by the Single Bench of this Court in Raghbir Singh v. State of Punjab and Another 2011(3) Recent Criminal Reports 157 after taking into consideration the case law on the subject.
Thus, taking totality of circumstances into consideration, this Court is of the view that there is no infirmity in the impugned order dated 4.4.2000 (Annexure P4), passed by the Court of Judicial Magistrate Ist Class, Ludhiana and the order of affirmation dated 5.5.2001 (Annexure P5), passed by the Revisional Court.
Hence, no interference is warranted in the present petition and the same is hereby dismissed.
(Kanwaljit Singh Ahluwalia) Judge November 17, 2011 "DK"