Crl. Misc. No. M-3382 of 2011 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-3382 of 2011 Date of Decision: February 15, 2011 Kumari Santosh Vyas .......................................................... Petitioner Versus Kailash Vyas ...................................................................... Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Ashwani Gaur, Advocate for the petitioner. ... RITU BAHRI, J. This petition under Section 482 of the Code of Criminal Procedure is for quashing of the judgment dated 16.12.2010 (Annexure P-2) passed by the Sessions Judge, Sonepat, whereby order dated 7.4.2009 (Annexure P-1) passed by the Additional Chief Judicial Magistrate, Sonepat, summoning the respondent for commission of an offence under Section 406 IPC in complaint case No.527/1 of 12.12.2007, has been set aside. Brief facts of the case are that complainant Kumari Santosh Vyas, who is the Bua of the accused Kailash, moved a complaint under Sections 420 and 406 IPC. As per her assertion, some amount was paid by Crl. Misc. No. M-3382 of 2011 [ 2 ] her to Kailash Vyas for construction of his house at Budh Vihar, Phase-I, New Delhi, with a promise to refund the same as and when demanded by the complainant. The complainant in good faith had given `2,80,000/- in cash on different intervals. The complainant repeatedly requested Kailash Vyas to refund the amount but he had not paid back the amount. The complainant issued a legal notice dated 13.10.2007 through registered post. After this, the complainant has filed a complaint alleging that she has been defrauded and cheated for a sum of `2,80,000/-. The Additional Chief Judicial Magistrate, Sonepat, after getting report of investigation under Section 202 Cr.P.C. summoned the accused under Section 406 IPC to face trial. In revision, the learned Sessions Judge has come to the conclusion that even though the money had been borrowed by Kailash Vyas from the complainant, the necessary ingredients of entrustment and misappropriation are not made out. Mr. Ashwani Gaur, learned counsel for the petitioner, has vehemently argued that the revisional authority has gone wrong in relying on the judgments in Rashida Kamaluddin Syed and Another v. Shaikh Saheblal Mardan (dead) through Lrs and Another 2007 (2) R.C.R. 155 and Veer Prakash Sharma v. Anil Kumar Agarwal and another 2007 (3) R.C.R. 960 wherein the revisional authority has come to the conclusion that this case does not amount to the commission of an offence of cheating and breach of trust. The dispute is civil in nature. Learned counsel has relied upon the Supreme Court judgments in Rashida Kamaluddin Syed and Another v. Shaikh Saheblal Mardan (dead) through Lrs. And Another 2007 (2) R.C.R. (Criminal) 155 and has argued that where there is misappropriation and cheating the aggrieved party can proceed in criminal Crl. Misc. No. M-3382 of 2011 [ 3 ] complaint as well as civil suit separately. In this case, the complainant had deposited the sale consideration amount in the bank. The accused dishonestly represented to the complainant that he would get loan at cheaper rate if the complainant was interested in such investment. It would earn more profit to the complainant and he would also get exemption from the payment of capital gains. Relying on the representation of accused No.2 the complainant gave him five blank cheques and also withdrawal slips so as to enable the appellant to invest in purchase of property and to pay such amount to the vendors. In this case, there was an intention right from the beginning to cheat and defraud the complainant. After hearing the counsel for the petitioner and going through the record, I find that Section 406 Cr.P.C. does not cover the case of a loan or advance money. The facts mentioned in Rashida Kamaluddin Syed and Another v. Shaikh Saheblal Mardan (dead) through Lrs. And Another 2007 (2) R.C.R. (Criminal) 155 do not apply to this case as in the present case the accused had borrowed `2,80,000/- for construction of a house from the complainant and being a loan it was not a case of cheating. There was no mens rea to cheat the complainant. It was at best a breach of trust. The Supreme Court in Chunduru Siva Ram Krishna & Another v. Peddi Ravindra Babu & Another 2009 (3) R.C.R. (Criminal) 506 examined a case where the accused owned a rice mill and after collecting paddy from farmers worth Rs.1.20 crores he had promised to make payment. But instead, he diverted the paddy to other Rice Mills. A case of cheating was made out against the accused who had purchased the paddy from the farmers worth Rs.1.20 crores. Proceedings qua the other accused who had purchased the paddy from the first accused have been quashed as they did not have any Crl. Misc. No. M-3382 of 2011 [ 4 ] mens rea to be dishonest towards the farmers. In the present case, there is no evidence of monetary act of fraudulent misappropriation. Petition is dismissed. 15.2.2011 ( RITU BAHRI ) Rupi JUDGE