CRL.M.C. No. 2797/2007 Page 1 14. * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2797/2007 Date of decision: 26th April, 2010 R.K.TANGRI ..... Petitioner Through Mr. Pramod Ahuja, Advocate along with petitioner in person. versus PANKAJ KHETAN & ANR. ..... Respondents Through Mr. Ashish Kumar, Advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? O R D E R 1. The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short) for quashing of summoning order dated 10th June, 2005 by which the learned trial court has pleased to take cognizance of offence under Section 406/420 of the Indian Penal Code (hereinafter referred to as the Code, for short). The impugned order itself records that the complainant had not made any allegation against Mr. Rohit Tangri and no cognizance and summon has been issued against him. 2. I have heard learned counsel for the parties and also examined the complaint filed by the respondent No. 1. In the complaint, it is stated that the respondent No. 1 has entered into an agreement to sell dated 21st October, 2003 with the petitioner for purchase of property No. C-205, Ground Floor, Anand Vihar, Delhi-92 for Rs.30,50,000/- and an amount of CRL.M.C. No. 2797/2007 Page 2 Rs.3,00,000/- was paid in cash as advance. It is alleged in the complaint that the petitioner did not inform the respondent- complainant that there was a tenant in the property. Subsequently, the respondent had to pay Rs.47,000/- to a lawyer to secure eviction of the tenant. It is further stated that the respondent-complainant made repeated telephone calls to the petitioner and expressed readiness and willingness to pay remaining Rs.27,50,000/- and the petitioner has failed to execute the sale deed and register the same. 3. The facts stated in the complaint do not disclose commission of any offence under Section 420/406 of the Code. For an offence under Section 420 of the Code, the fraudulent or dishonest intention of the accused to deceive and cheat the complainant at the beginning of the transaction i.e. the initial stage when the contract/agreement to sell was entered into, has to be seen and established. The complaint even if presumed to be factually correct, there is no material to show dishonest intention from inception i.e. when the agreement to sell was entered into and earnest money/advance was paid. It may be noticed here that the complaint was filed on 17th May, 2005 and as per the agreement to sell relied upon by the respondent- complainant, the last date for payment of the sale consideration and execution of the documents was 21st December, 2003. Learned counsel for the respondent-complainant, during the course of hearing, submitted that time was not the essence of contract and it was mutually agreed that the sale deed would be executed only after the tenant was evicted. This contention of the counsel for the respondent-complainant does not in any way help the case of the respondent-complainant. On the other hand, it shows that the disputes between the parties were purely civil disputes. Ex facie it is difficult to accept that the respondent-complainant was not aware of the tenancy. It is not the case of the respondent-complainant that he did not CRL.M.C. No. 2797/2007 Page 3 visit or inspect the property before the agreement to sell. 4. With regard to offence under Section 406 of the Code, again the averments made in the complaint do not disclose satisfaction of the prescribed conditions. If money is paid as advance or as part price for the purchase of certain property then it becomes property of the person to whom it is paid and he cannot be convicted for criminal breach of trust. The respondent-complainant, as per the complaint, had made payment of Rs.3 lacs to the petitioner as a part of sale consideration or advance. Whether or not the petitioner is entitled to forfeit the said amount, etc. is something, which will have to be examined by the civil court. The civil court will examine, who had committed breach of the said agreement. 5. Learned counsel for the petitioner has drawn my attention to the agreement to sell which records that a cheque of Rs.1 lac was returned uncashed to the petitioner. It is the contention of the learned counsel for the respondent-complainant that Rs.1 lac was thereafter paid in cash. Civil proceedings have already been initiated by the respondent-complainant and a suit for specific performance is pending. 6. In view of the aforesaid discussion, the present petition is allowed and summoning order dated 10th June, 2005 is set aside and quashed. The petition is disposed of. The observations made in this order are for the purpose of disposal of the present petition and will not be binding in the civil proceedings. SANJIV KHANNA, J. APRIL 26, 2010 VKR/J