Delhi District Court
Raj Kumar vs Niranjan & Ors. Vide Aforesaid Order on 7 July, 2018
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE2 (EAST), KARKARDOOMA COURTS, DELHI
Cri. Rev. No.65/17
In the matter of
Raj Kumar
S/o Sh. Hardayal
R/o D19, Shakarpur,
Delhi110092
Revisionist
1. The State
(Govt. of NCT of Delhi)
2. Bhushan Kumar
S/o Shri Sushil Kumar
R/o H.No.15A, Old Geeta Colony, Delhi
Respondent
Date of institution 18.03.2017
Arguments heard 07.06.2018
Date of order 07.07.2018
JUDGMENT
1. This revision petition has been filed against the order dated 07.9.2016 passed by Sh. Balwinder Singh, Learned Metropolitan Magistrate, East, Karkardooma Courts, Delhi, in the FIR case No.726/15 titled as State Vs Niranjan & Ors. Vide aforesaid order, Ld. MM has taken cognizance of the offence and summoned the petitioner alongwith two other accused persons u/s 420/120B IPC.
2. As per charge sheet, the complainant Sh. Bhushan Kumar had made a complaint to the PG Cell, East Dist and on the basis of inquiry conducted by the PG Cell and legal opinion taken in regard to the complaint, on 06.04.2015, SI C.L. Meena of PS Shakarpur, directed the duty officer to Cr. Rev. No. 65/17 Raj Kumar vs State etc 1 of 17 register a case u/s 420/120B IPC whereupon the aforementioned FIR was registered wherein allegations were made against five persons including the petitioner herein and after completion of investigation, three accused persons including the petitioner have been chargesheet for commission of offence u/s 420/120B IPC and other two accused persons have not been chargesheeted as no incriminating material was found against them. None of these accused persons have been arrested during investigation and charge sheet has been filed without arrest.
3. Prior to discussing the contents of charge sheet and complaint, it is necessary to discuss certain other facts of the case which are relevant for the appropriate disposal of the present case. It is not clear from the charge sheet as to when the complaint was made with the PG Cell, however, it is clear from the record that prior to making the complaint with the said authority, the complainant had filed the same complaint with the SHO, PS Shakarpur, on 10.10.2013, however, no case was registered. Thereafter, the complainant had filed a complaint u/s 200 Cr.P.C. alongwith an application u/s 156(3) Cr.P.C. before the court of Ld. MM. Ld. MM had called for the status report and after considering the same, Ld. MM dismissed the said application on 26.7.14 thereby observing that no police investigation was required in the matter and asked the complainant to lead pre summoning evidence. However, thereafter, FIR was registered by the same police station as the complainant had also approached the P.G. Cell. In the complaint, the complainant has mentioned the accused Hardayal as accused no.1, Niranjan as accused no.2, SI Prem Pal Singh as accused no.3, Vivek as accused no.4 and Raj Cr. Rev. No. 65/17 Raj Kumar vs State etc 2 of 17 Kumar ie son of Hardayal as accused no.5 and therefore, in reference to the allegations made in the complaint, the accused persons have been referred as A1 to A5.
4. The FIR has been registered on the basis of the complaint dt. 10.10.2013 wherein the complainant mainly alleged as under:
(a) that vide agreement to sell and purchase dt. 23.04.2012, the complainant entered into an agreement with accused no.1/Hardayal and accused no. 2/Niranjan to purchase a flat at 3 rd floor, of property bearing no. D19, Shakarpur, Delhi110092 for Rs. 55,00,000/. As per demand, the complainant paid Rs.50,00,000/ to the accused no.1 Hardayal & accused no.2 Niranjan and rest of the amount of Rs.5,00,000/ was to be paid at the time of registration of sale documents. The accused no.1 is the owner of the property and accused no.2 is the builder. The accused no.5/Raj Kumar is the son of accused no.1. The accused no.1 and 5 stood witnesses to the said agreement.
(b) that construction work of the flat was almost complete and only finishing work was remaining, thus, complainant informed the accused no. 1 & 2 that he has arranged the balance amount of Rs. Five Lacs and requested the accused no.2 to get the sale documents executed from accused no.1 but they extended the time on one pretext or the other but finally it was decided that documents will be executed on 23.09.2013. Accordingly, on 21.09.2013, the complainant informed the accused no.1 & 2 that he has arranged the balance amount and they should come to the office of subregistrar on the said date but they Cr. Rev. No. 65/17 Raj Kumar vs State etc 3 of 17 requested the complainant that they will executed the documents on 26.09.2013. The complainant went to the office of subregistrar on 26.9.2013 with the balance sale consideration and waited for them but accused persons did not come there till 4 pm. Thereafter, complainant went to the house of accused no.1 but he refused to meet him.
(c) that complainant tried to contact the accused no.1, 2 & 5 but they were not ready to meet him, then on 09.10.2013, the complainant went to A1 whereupon A1 called the A2 there and A5 was already present there. They threatened the complainant not to discuss about the flat again else they would break his legs and A2 & A5 threatened to kill him. During said conversation A3 & A4 also come there. A3 who is a subinspector in Delhi Police threatened the complainant to implicate him a false criminal cases and directed him to accept Rs. 40,00,000/ against Rs.50,00,000/ or forget the entire amount and when complainant opposed their said illegal acts, A1 threatened him that he is a criminal and many cases are pending against him and he will kill him then complainant left the place to save his life.
(d) That complainant came to know that the accused no. 1, 2 & 5 with malafide intention and ulterior motive to cheat him and to grab his hard earned money played fraud upon him and taken Rs.50,00,000/ from him and executed agreement to sell in favour of A3 & A4 without the consent of complainant and without returning Rs.50,00,000/ which was received by them dishonestly and in preplanned manner to have gain and cause loss to the complainant.
(e) That complainant is having apprehension that either A1 & A2 have Cr. Rev. No. 65/17 Raj Kumar vs State etc 4 of 17 already sold the flat to A3 A4 or soon they will execute the sale documents in their favour.
5. As discussed earlier, no case was registered on the basis of the said complaint which was received by the SHO, Shakarpur on 10.10.13, however, the FIRwas registered around one and half year later i.e. 06.04.2015, when the complainant had filed his complaint in the PG Cell, East Distt. After registration of case, the matter was investigated and during investigation, detailed statement of Hardayal and accused Niranjan were also recorded. As per charge sheet, during investigation inquiries were made from accused SI Prem Pal Singh and his son Vivek who told the IO that they do not know the complainant Mr. Bhushan Kumar and they purchased the said flat from Niranjan in Oct, 2013. As per chargesheet no incriminating evidence was found against them thus, they were not charge sheeted in the case.
6. The accused Niranjan, the builder, Hardayal, the owner of the property and Raj Kumar, the son of the owner/petitioner have been charge sheeted as accused Niranjan had executed an agreement to sell the said flat with the complainant in the presence of Hardayal and Raj Kumar and without cancelling the said agreement, the accused persons sold the same flat to Smt. Bimla Devi Chauhan on 8.11.2013 through a sale deed.
7. Vide impugned order Ld. MM has summoned the petitioner, his father Hardayal and builder Niranjan. The petitioner has assailed the order of summoning mainly on the following grounds: Cr. Rev. No. 65/17 Raj Kumar vs State etc 5 of 17
(a) That Ld. Trial court failed to appreciate that on perusal of complaint it is evident that the dispute, if any, is of the breach of agreement to sell dt. 23.04.2012 and respondent no.2/complainant has tried to convert the civil dispute into a criminal case and complainant had already filed a civil case with respect to the same agreement prior to the registration of FIR;
(b) That the Ld. Trial court failed to appreciate that the charge sheet has only been filed for the reason that coaccused Niranjan has sold the third floor to Smt. Bimla Devi Chouhan on 08.11.2013 without cancelling the above agreement to sell dated 23.04.2012;
(c) That Ld. Trial court failed to appreciate that no document i.e. or proposed deed with the copy of stamp paper, was annexed with the charge sheet to show that complainant was available for the registration of the transfer documents to show that complainant was ready to perform his part on 26.09.13;
(d) That Ld. Trial court failed to appreciate that from the contents of charge sheet no ingredient of cheating or conspiracy are made out;
(e) That Ld. Trial court failed to appreciate that it was not bound to accept the report of IO and while summoning the accused was to apply judicious mind after perusing the contents of charge sheet as well as evidence collected during the investigation to rule out the harassment of any person.
8. I have heard Ld. Counsel for the petitioner and Ld Addl. P.P for the state as well as Ld. Counsel for the complainant and gone through the record Cr. Rev. No. 65/17 Raj Kumar vs State etc 6 of 17 of the case.
9. Ld. Counsel for revisionist/accused has relied upon the case laws reported as Harpreet Rupal and Ors. Vs. Sate of UP, Cri. Rev. No.5488 of 2005 and Haridaya Ranjan Pd. Verma and Ors vs State of Bihar And Anr, Appeal (crl.) 313314 of 2000.
10. Ld Counsel for respondent no.2 also relied upon the case laws reported as Arun Bhandari vs State of UP, Cr. Appeal No.78 of 2013 and Ashfaq Ahmed Quereshi & Anr. Vs Namrata Chopra & Ors, Cr. Appeal No.2100 of 2013.
11. The complainant has mainly alleged in his complaint that Hardayal, the owner of the property bearing No.D19, Shakarpur, Delhi110092, in conspiracy with accused Niranjan, the builder and his son Raj Kumar/petitioner herein, has cheated him. It is contended that Hardayal had entered into a collaboration agreement with coaccused Niranjan for reconstruction of his property and by virtue of the same agreement, the accused Niranjan was given ownership right over the proposed third floor of the property. It is further contented that on 23.04.2012, the accused entered into an agreement to sell and agreed to sell the third floor for 55,00,000/ (Fifty Five Lacs only) and by and by till dated 26.08.2013 he paid Rs.50,00,000/ and rest was to be paid on 26.09.13 at the time of registration of transfer documents, however, accused Niranjan did execute the necessary documents on that date and later on, flatly refused and then sold the same flat to Smt. Bimla Devi Chouhan on 08.11.2013 without cancelling the agreement executed with him. The allegations Cr. Rev. No. 65/17 Raj Kumar vs State etc 7 of 17 against Hardayal and his son/petitioner are that the entire payment was made to accused Niranjan in their presence and they were well aware of the execution of the agreement between him and accused Niranjan and despite that accused Niranjan, instead of executing the necessary documents, in his favour, sold the same flat to a third person, in conspiracy with Hardayal and his son/petitioner who stood a witness to the documents of sale executed in favour of Smt. Bimla Devi Chouhan.
12. Prior to analyzing the facts of the present case to see whether in the instant case the ingredients of cheating are made out or not, it is necessary to firstly discuss here the legal position in this regard.
13. The offence of cheating is spelled out in section 415 IPC which reads as under: Sec:415. Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. A dishonest concealment of facts is a deception within the meaning of this section.
14. In the case reported as G.V. Rao v. L.H.V. Prasad and others, 2000(2) RCR(Crl.) 290, the Hon'ble Supreme Court has made the following observations regarding the factors which are necessary to constitute the offence of cheating: "As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to Cr. Rev. No. 65/17 Raj Kumar vs State etc 8 of 17 do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 Supreme Court 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 Supreme Court 724, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered."
15. In the case reported as Hari Prasad Chamaria v. Bishun Kumar Surekha & Ors., AIR 1974 Supreme Court 301, Hon'ble Supreme Court held that The complainant has to show that the accused had dishonest or fraudulent intention when he parted with the money, otherwise, it would not amount to an offence under Section 420 Indian Penal Code and it may only amount to breach of contract. Thus, for having a case of cheating complainant has to show that accused had a dishonest intention since beginning of the transaction and that accused never intended to deliver the property agreed and wanted to dishonestly receive the money.
16. In the case reported as Hridaya Ranjan Prasad Verma and others vs State of Bihar and another, 2000 Cr. LJ 2983, Hon'ble Supreme Court of India, has laid down the distinction between breach of contract and the offence of cheating and has observed as follows : "16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may by judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have Cr. Rev. No. 65/17 Raj Kumar vs State etc 9 of 17 been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
17. In the case of Hira Lal Hari Lal Bhagwati Vs CBI reported as 2003(5) SCC 257 Hon'ble Supreme Court has observed as under:
31. Section 415 of the Indian Penal Code deals with cheating. To hold a person guilty of cheating as defined under Section 415 of the Indian Penal Code, it is necessary to show that he has fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to : (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
18. In the said case Hon'ble Supreme Court has further observed as follows:
37. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not Cr. Rev. No. 65/17 Raj Kumar vs State etc 10 of 17 comply with it and, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as officebearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise. We have read the charge sheet as a whole. There is no allegation in the First Information Report or the charge sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of customs duty or cheating the Government of India as the cancer society is a nonprofit organization and, therefore, the allegations against the appellants levelled by the prosecution are unsustainable. Kar Vivad Samadhan Scheme Certificate along with the Duncan's and Sushila Rani's judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process.
19. In the case reported as Vesa Holdings P. Ltd. v. State of Kerala 2015 AIR (SCW) 2245 the Hon'ble Supreme Court has held that intention to deceive has to be from the very inception and if developed subsequently then no offence of cheating will be made out. The observation of Hon'ble Supreme Court are as follows:
8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating , the complainant is required to show that Cr. Rev. No. 65/17 Raj Kumar vs State etc 11 of 17 the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
20. In regard to the present scenario the illustration (g) of section 415 IPC is also relevant which reads as follows:
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if a, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
21. Thus, in view of the settled law, the dishonest intention on the part of the promisor is to be there from the time when the promise is made and if the promisor breaks his promise subsequently, then it may amount to breach of contract but not cheating.
22. Now in the view of the light of the settled law the facts of the present case are to be viewed. Now let us see whether the facts and circumstances of the present case show that the accused Niranjan had made a false promise of the delivering the possession of the flat and whether he had no intention to actually deliver the possession of the flat to the complainant. The intention of the accused Niranjan can be gathered from the allegations made in the complaint and from the other material available on record.
23. The present case was registered on the basis of the complaint dt.
Cr. Rev. No. 65/17 Raj Kumar vs State etc 12 of 17 10.10.2013. There are no allegations in the complaint that at the time of entering into an agreement/MOU, the accused Niranjan had made a false promise to him to deliver the possession of the flat with the malafide intention to receive his money and since inception of the agreement accused Niranjan never intended to sell the flat to him and always wanted to sell the flat to a third person and not to him as promised in the memorandum of understanding dt. The complainant has mainly alleged that the accused has played fraud upon him as he entered into an agreement to sell the flat with him and received Rs.Fifty Lacs and now without his consent or permission either he has already sold the flat to accused no.3 and 4 or soon will execute the documents in their favor. The relevant para where complainant has made the allegations of fraud reads as follows: "That the complainant came to know that the accused No.1, 2 & 5 with malafide intention and ulterior motives to cheat the complainant and to grab the hard earned money play fraud with the complainant and taken Rs.50,00,000/ from the complainant by executing agreement to sell and purchase and constructed the building and now sale the same to the accused No.3 & 4 without the consent and permission of the complainant with whom the accused No.1 & 2 already agreement to sale and purchase 23/04/2012 without returned the huge amount of Rs.50,00,000/ which was received by them dishonestly and in preplanned manner to gain themselves and loss to the complainant."
24. Thus, it is clear from the perusal of the complaint that the necessary ingredients of dishonest intention from the inception of the promise are missing and it clear that the grievance of the complainant is that the firstly accused promised him to sell the flat to him and took Rs. Fifty lacs Cr. Rev. No. 65/17 Raj Kumar vs State etc 13 of 17 Rupees from him and despite that he now intend to sell the same to a third person that too without his permission. Thus, it is clear from the contents of the complaint itself that neither malafide intention since inception pleaded nor supported by any material.
25. Since, there is no material available on record to ascertain the intention of the accused Niranjan, therefore, the fact that whether accused had malafide intention to cheat the complainant or not from the time of the execution of the agreement can also be assessed from the previous and subsequent conduct of the accused. It is admitted position of fact that the agreement to sell was executed on 23.04.2012 and as per agreement the accused Niranjan was to sell the third floor situated in the property bearing No.D19, Shakarpur, Delhi. Initially the last date of 23.01.2013 which was admittedly extended till 26.09.2013. It is admitted position of fact that accused Niranjan was having ownership rights over the said flat and after said agreement he constructed the said flat also. It is also clear that both the parties went ahead with the agreement and complainant continued to make the payments to accused Niranjan till 26.08.2013 and by that time complainant had paid Rs.Fifty Lacs and as per complainant last date of payment of the balance amount and execution of the documents was fixed for 23.09.2013 which was also extended till 26.09.2013. Thus, it is clear that at least till 26.08.2013 there was no dispute between the parties and both the parties had stood by the agreement. As per charge sheet, on 25.05.2013, the accused had permitted the complainant to perform Muhurat puja in the semi constructed flat as thereafter, this puja could be performed only after 3 to Cr. Rev. No. 65/17 Raj Kumar vs State etc 14 of 17 4 months period. This fact itself shows that at least till 25.05.2013, the accused wanted to perform his part of contract else he would not have allowed the complainant to perform puja in semi constructed flat.
26. It is also clear from the record that the complainant made payments from time to time and accused Niranjan also constructed the flat. It is also clear from the record that accused Niranjan did not transfer the flat to the third person till the last date fixed for making the payment of balance amount and execution of transfer documents. As per charge sheet the accused Niranjan had sold the flat to Smt. Bimla Devi Chouhan on dt. 10.10.2013 which is much after the last date fixed by both the parties. Thus, there is nothing on record to show that accused Niranjan did enter into the said agreement with the complainant only with a view to usurp the money of the complainant and had no intention to transfer the flat to the complainant rather the facts discussed above clearly shows that both the parties were going along nicely with the agreement till 26.08.2013 and whatever happened had only happened much later to the execution of the agreement to sell dated 23.04.2012. During the course of investigation the statement of accused Niranjan was recorded wherein he stated that he sold the flat in November,13 when complainant did not come forward with the balance payment despite requests and three legal notices. Thus, under these circumstances it is clear that till 26.08.2013, there was no dispute between the parties and some dispute arose later on for which both parties are blaming each other and in this regard a civil case is also pending between the parties.
Cr. Rev. No. 65/17 Raj Kumar vs State etc 15 of 17
27. During the course of arguments, Ld. Counsel for petitioner has placed on record a copy of the complaint dt. 10.10.2013 made by complainant with the office of Subregistrar, Shastri Nagar, Delhi110031. Ld. Counsel of complainant has not denied this fact. The contents of said complaint reads as follows: ससवव मम, शशमवन सब रजजससटट वर सवहब, शवसञश नगर, ददलश110031 दवषय: मकवन स० डश19, लजलतव मवगर , शकरपपर, ऐकस०, मणडववलश फवजलपपर, ददलश 10092, जजसकव ऐमसशडश न० डश19 हह कक रजजससटट श न करनस हसत त ।
महहदय, मम सदवनय दनवसदन यह हह दक मम भतषण कपमवर पपञ शश सपशशल कपमवर नस एक थडर फ़लहर पहरशन मकवन सस० डश19, शकरपपर ददलश110092 शश दनरसजन सपपपञ शश हर पसवद सस 23.04.2012 एगशममट ससल परचसज दवरव खरशदनव तय दकयव थव जजसकक पतरश रकम एगशममट दवरव दस चपकव हह ।हस जजसकक कवपश सवथ ससलग हह। यह दक बसचनस ववलव कहतव हह दक मम रजजससटट श सकरल रसट पर हश करसगव बवकक रकम सरकवरश खवतस मम नहश ददख़वउस गव। ऐसव लगतव हह दक बसचनस ववलव इसकम टसकस कक भश चहरश करनव चवहतव हह जबदक मम सरकवरश खवतस मम पपरश मवदकरट ववलयत पर सटवसप डपटश दसनव चवहतव हह ।हस तथव मपझस पतव चलव हह दक वह दकसश और कस नवम पर सकरल रसट पर हश रजजससटट श करनस सब रजजससटट वर कवयवरलय मम आनस ववलव हह। मसरश आप सस दबनतश हह दक उसकक रजजससटट श नव कक जवयस। आपकक अदत ककपव हहगश।
भवदशय भतषण कपमवर पपञ शश सपशशल कपमवर 15ए पपरवनश गशतव कवहलहनश, 10.10.2013 ददलश110031 मह० 9810662708
28. The perusal of the contents of the complaint shows that even as per complainant, the accused Niranjan was ready to execute the transfer documents in favour of complainant and only dispute between parties was regarding the quantum of consideration amount which was to be Cr. Rev. No. 65/17 Raj Kumar vs State etc 16 of 17 mentioned in the transfer documents. Thus, this fact further fortifies the fact that accused Niranjan had not entered into the agreement with the complainant with any malafide intention and some dispute had subsequently arisen.
29. Thus, under these circumstances, there are no ingredients of cheating or conspiracy for the same, are available on record and to the best it may or may not be a case of breach of contract and which party is responsible for breach of contract is to be adjudicated by the Ld. Civil Court where this dispute is already pending. It is most respectfully observed that the case laws cited by Ld. Counsel for complainant are not applicable to the peculiar facts and circumstances of the present case.
30. Thus, in view of the above discussed facts and circumstances, it is held that no offence u/s 420/120 B IPC is made out in the instant case, thus, order of summoning the petitioner is liable to be set aside, accordingly same is hereby set aside. Petitioner is directed to furnish bond u/s 437A Cr.P.C. before the Ld. Trial Court. A copy of this order be sent to the Ld. Trial Court. Revision file be consigned to Record Room.
Digitally signed by AJAY AJAY GUPTA
Location: Delhi
GUPTA Date: 2018.07.07
16:04:07 +0530
(Ajay Gupta)
ASJ02/ Special Judge(NDPS)
KKD/East/Delhi
Announced in open
court on 07.07.2018
Cr. Rev. No. 65/17 Raj Kumar vs State etc 17 of 17