Crl. Appeal No.39-MA of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.39-MA of 2010 Date of Decision: July 27, 2010 Satwant Singh ........Appellant Versus Kashmir Singh .......Respondent CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Surinder Garg, Advocate, for the appellant. SABINA, J. Complainant- Satwant Singh has filed a complaint under Section 406 of Indian Penal Code (in short 'IPC') against the accused-respondent. Vide order dated 11.9.2009, passed by the Chief Judicial Magistrate, Faridkot, the complaint qua respondent was dismissed. Hence, the present application has been filed by the complainant/appellant under Section 378 (4) Code of Criminal Procedure with a prayer for grant of leave to file an appeal against the order mentioned above. The case of the complainant in brief as noticed by the trial Court in para 2 of the impugned order reads as under :- “Complainant alleged that on 2.4.2001 accused was entrusted with an amount of Rs.70,000/- with the promise that he will return the amount within a period of one week and till then he will keep the amount. Complainant further alleged that in this regard a writing has also effected on that very day in the presence of witnesses namely Azad Bidu and Deep Lal in favour of Crl. Appeal No.39-MA of 2010 2 the complainant. From the last six months complainant is demanding the entrusted amount from the accused i.e. Rs.70,000/- but he is not returning the amount. On 22.11.2003, one notice was also issued to the accused, b ut accused has committed breach of trust by not paying the amount and committed offence u/s 406 of the IPC. Complainant prayed for taking action and punishment against the accused.” After hearing the learned counsel for the appellant, I am of the opinion that the instant application deserves dismissal. The trial Court in paras 15 and 16 of the impugned judgment has observed as under :- "15. Complainant Satwant Singh himself appearing as CW2 deposed in regard to his entire stand alleged in the complaint. Complainant also tried to prove writing Ex.P1, notice Ex.P2 coupled with postal receipts Ex.P3 and Ex.P4, but this very complainant also deposed in his examination-in-chief that Rs.70,000/- were paid to accused, which means it was merely payment of money from one person to the other. If these facts have to be admitted and taken “as it is”, only for the sake of arguments, though complainant has failed to got prove the same. The cross-examination of complainant reveal truthful facts, because complainant in his cross- examination clearly admitted the fact that he has already instituted suit for specific performance against the Crl. Appeal No.39-MA of 2010 3 accused on the basis of agreement dated 4.9.1999. Complainant admitted the copy of agreement as Ex.R1 and copy of complaint as Ex.R2.Though both these documents were objected to, but the objection was only for the sake of objection, when these documents have been clearly admitted by the complainant himself, who his signatory to the originals. Complainant in his further cross-examination admitted the fact that his transaction with the accused started from Ex.R1 and previously there was dealing between the complainant and accused due to selling of milk. Admissions on the part of complainant proves the fact that accused has not complied with the agreement to sell dated 4.9.1999, for which date of execution of the sale-deed was 5.9.2000. As such, when sale-deed was not executed by the accused till 5.9.2000 at the asking of complainant, then why this very complainant will further entrust Rs.70,000/- to the accused on 2.4.2001. The documentary evidence brought by the accused falsify the stand of complainant and prove the fact that the allegations brought by complainant are pleathora of falsehood, because no ordinary man will give money to the other person, who was refusing to execute the sale deed after due date. As per allegations of complaint, the money was given after passing of more than seven months of the date fixed for allegedly execution of sale- Crl. Appeal No.39-MA of 2010 4 deed. Complainant in his cross-examination also admitted the fact that amounts of accused were lying in banks and he is doing the business. On the other hand complainant admitted the fact that a case was got registered against him for offence u/s 420 of the IPC. Complainant in his cross-examination deposed that he is not paying any income tax return, and denied the factum of pendency of income tax complaint. Complainant also deposed in his cross-examination that he cannot depose that whether amount of Rs.70,000/- is from black or white, because his wife is also filing income tax returns. Accordingly, cross-examination of this complainant impeached his own credit and falsify the version of complainant alleged in the complaint. 16. Keeping in view of above evidence brought by the complainant, it has been amply proved by the accused that there was already dispute between the complainant and the accused on the basis of agreement to sell, then why the complainant has given money to the accused. Non-explanation on this score creates doubt in the entire allegations of the complaint. Secondly, as per allegations merely amount was paid by the complainant to the accused and one alleged writing was created, then it does not fulfill the ingredients of offence u/s 405 and 406 of the IPC, because accused was not having dominion over the alleged amount. As such, law relied Crl. Appeal No.39-MA of 2010 5 upon by ld. Defence counsel in 'M/s Indian Oil Corporation's case 9Supra); Sardar Singh's case (Supra); and Smt. Jairani's case (Supra) are directly applicable to the facts of the case in hand. Accordingly, complainant has failed to fulfill the ingredients of offence u/s 406 of the IPC against the accused beyond the shadow of reasonable doubt. Consequently, both these points shall stands decided in favour of the accused and against the complainant.” The reasons given by the trial Court while dismissing the complaint and discharging the respondent are sound reasons. The case of the complainant was that he had given Rs.70,000/- to the accused by way of Amanat (trust). However, the respondent-accused had failed to return the said amount of Rs.70,000/-. Admittedly, an agreement to sell has been executed by the respondent in favour of the appellant. Respondent had, however, failed to execute sale deed in favour of the appellant. Appellant filed a suit for specific performance on the basis of the agreement of sale. Since the said litigation was already pending the appellant had no reason to give another sum of Rs.70,000/- to the respondent by way of trust. In these circumstances, the learned trial Court had rightly held that the appellant had failed to prove his case. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. (SABINA) July 27, 2010 JUDGE Anand