Delhi District Court
Jaharmal Gupta vs Davinder Kumar & Ors. 1 on 16 April, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN METROPOLITAN MAGISTRATE,
WEST, THC NEW DELHI
Jaharmal Gupta ........... Complainant
Vs.
Davinder Kumar & Ors. ........... Respondent/respondents
PS Paschim Vihar CC No.21/1/13 ORDER ON SUMMONING
1. Vide this order I shall decide the point of summoning of accused person u/s 200 Cr.P.C.
2. Briefly stated facts as per the complaint are that on 23.05.2012, the respondent no. 1 and 2 had approached the complainant and told him about the property i.e flat no. 40-C on second floor with roof rights, MIG, Block-A-2B, Ekta Apartment, Paschim Vihar, Delhi. They offered to sell the said property to the complainant for a consideration of Rs.1,21,00,000/-. It has been averred that respondent no.1 insisted the complainant to purchase the property in partnership and told him that that he would give 60 per cent out of the profit from the re-sale of the property as he planned to sell the said property soon after its purchase. It has been further averred that on 25.02.2012, respondent no.1, 2 and 3 approached him and told the complainant that respondent no.4 and 5 were the owners of the said property. Complainant agreed to purchase the property. On 26.05.2012 complainant withdrew a cash of Rs.7.5 Lacs from his account in the name of Gupta Trading & Company, HDFC Bank. Thereafter, they went to respondent no.4. Respondent no.5 Jaharmal Gupta vs Davinder Kumar & Ors. 1 gave him the original typed and signed copy of the Agreement to Sell and purchase / bayana agreement and cash receipt. The complainant saw that name of one Ravinder Sherawat was mentioned along with his name instead of the name of respondent no.1. He objected to the same but respondent no.1 told him that Ravinder Sherawat was his person and assured him not to worry about him. The complainant signed on the said document and handed over Rs.7.5 Lacs to respondent no.4 as earnest money. Complainant was given the copy of Agreement to Sell and Buyana receipt. The original were withheld by the respondents on pretext that these were required for re-sale of the property.
3. It has been alleged that thereafter all the respondents started avoiding him and never gave any satisfactory answer to his queries. It had been agreed that within 100 days, the sale documents will be executed on the payment of the balance amount. However, the respondent failed to do so even on expiry of 100 days. On 21.09.2012 the complainant sent a notice to respondent no.4 and 5. On 05.10.2012 the complainant came to know that respondent no.1 had purchased the above said property in capacity of one of the directors of "Everwell Buildcon Pvt Ltd" in partnership of Pramod Kumar Mittal and sons (HUF) for Rs.40 Lacs. It has been alleged that respondents have committed cheating, fraud and forgery and they be summoned for the offence under Section 406/420/120B IPC.
4. To prove his case, the complainant himself entered into the witness box as CW-1. He has corroborated the averments made in the complaint. He has relied upon and exhibited the following documents:-
Jaharmal Gupta vs Davinder Kumar & Ors. 2
1. Statement of account of withdrawal of cash of Rs.7.5 Lacs from account no. 03272020001942 of 26.05.2012 as Ex.CW1/1.
2. Copy of Agreement to Sell and Buyana Receipt are Mark A and B respectively.
3. The receipt of Inspection is Ex. CW1/2.
4. Certified copy of the sale deed dated 05.10.2012 is Ex. CW1/3.
5. Photocopy of the ownership of property in question is Mark C.
6. Complaint to DCP dated 13.03.2013 is Ex. CW1/4.
5. Witness has further deposed that he was misled by the accused persons and they have cheated him. Despite his complaint, no action was taken by the police officials. No other witness was examined and pre-summoning evidence was closed.
6. I have heard the arguments made by Ld. Counsel for complainant and perused the record carefully.
7. The complainant has prayed that the respondents be summoned for offence of cheating, criminal breach of trust and forgery.
8. Let us first discuss the provisions of law relevant for the purpose of this case.
9. Section 463 IPC defines Forgery as under:-
"Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery."
Jaharmal Gupta vs Davinder Kumar & Ors. 3
10.In the case at hand, the complainant has failed to prove that any false document or forged document were prepared by the accused persons. Hence, no offence for forgery is made out against the accused persons.
11.The allegation of the complainant is that the respondents have compelled him to purchase the property in question even when the respondent no.4 and 5 were not the real owners of the property. It is further allegations of the complainant that the accused no.4 and 5 had sold the property to respondent no.1 even though Agreement to Sell was executed in his favour. They have not even returned the consideration amount of Rs.7.5 Lacs to the complainant.
12.Section 406 IPC prescribes punishment for criminal breach of trust and the same is defined under Section 405 IPC which is reproduced verbatim here:-
"Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
13.The most important ingredient of Section 405 IPC is "entrustment of property". The expression 'entrustment' means that the person entrusting, by some real and conscious volition has imposed on the person to whom he delivers the goods, some species of fiduciary duty (Lake vs Simmons 1972 AC 487). In order that money be 'entrusted' to the Respondent person, it should be transferred to him in Jaharmal Gupta vs Davinder Kumar & Ors. 4 circumstances which shows that notwithstanding its delivery, the property continues to vest in the prosecutor and the money remains in possession of the Respondent in capacity of a bailer only. In the case at hand, no entrustment of property was created as contemplated under Section 405 IPC. The ingredients of Section 405 IPC are not fulfilled. Hence, no offence u/s 406 IPC is made out against the accused persons.
14.Section 420 of IPC defines cheating as under :-
"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".
9. The main ingredients to be proved to establish cheating are:-
1. Deception of any persons;
2. Fraudulently or dishonestly inducing any person to deliver any property; or
3. To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
10.It has been held in "Dalip Kaur & Ors. V. Jagnar Singh & Anr." 2009(4) RCR (Criminal) 540 by the Hon'ble Supreme Court that "An offence of cheating would Jaharmal Gupta vs Davinder Kumar & Ors. 5 be constituted when the Respondent had a fraudulent or dishonest intention at the time of making the promise. A pure and simple breach of contract does not constitute an offence of cheating. The Hon'ble High Court of Delhi has held in "Kusum V. Ved Prakash Narayan" 2009(3)AD Delhi 78, "Falling short of deceitful intention from the very beginning cannot give rise to criminal prosecution for cheating". Mere failure to make payment is not sufficient to prosecute a person for the offence of the cheating (Anil Mahajan V. Bhor Industries Ltd 2006 (4) RCR (Criminal) 834).
11.The Hon'ble Supreme Court in "S.W.Palanitkar V. State of Bihar" Crm Appeal no. 1072/2001", has referred to the judgment delivered in "Hriday Ranjan Prasad Verma & Ors. Vs State of Bihar & Anr" (2000) 4SCC 168 where it was held, "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 be 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 in the beginning of the transaction, that is at the time when the offence is stated to have 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. Hon'ble Supreme Court also referred to the Judgment "Punjab Jaharmal Gupta vs Davinder Kumar & Ors. 6 National Bank & Ors. Vs Surender Pratap Sinha" (1993) Supp (1) SCC 499 wherein it was held "It is salutary to note that judicial process should not be an instrument of oppression or needless harassment." It was held that Magistrate has a responsibility and the duty to find whether the accused is legally responsible for the offence charged for. It is to be circumspect and judicious exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. The Hon'ble Court observed that, "Many a time complaints are filed under section 200 CrPC by parties with an oblique motive or for collateral purpose to harass or to wreck vengeance or to pressurize the Respondent to bring them to their own terms or to enforce the obligations arising out of the breach of contract touching commercial transactions, instead of approaching the civil court with a view to realize money at the earliest. Hence, before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Section 200-203 Cr.P.C keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner."
12.In the case at hand, the complainant has failed to show that the respondents had any intention to cheat the complainant from the very beginning i.e at the time of executing the Agreement to Sell. Complainant has alleged that the respondents have cheated him by not executing a sale deed with respect to the property in question. However, no dishonest intention can be imputed on the respondents only on that account. It appears that dispute between the parties is essentially that of Jaharmal Gupta vs Davinder Kumar & Ors. 7 breach of contract. Hence, the ingredients under Section 420 IPC are not met and no offence is made out under the said section.
13.In view of the above discussion, the court is of the considered view that the complainant has failed to show any ground on which the respondents can be summoned for commission of alleged offences. Hence, the present complaint is dismissed being devoid of any merits. File be consigned to the record room after due compliance.
Announced in the open court (SAUMYA CHAUHAN)
on 16.04.2015 METROPOLITAN MAGISTRATE-07
WEST, TIS HAZARI COURT/NEW DELHI
Jaharmal Gupta vs Davinder Kumar & Ors. 8