CRM M 6367 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- CRM M 6367 of 2011 Date of decision : 01.03.2011 Raghbir Singh .......Petitioner Versus State of Punjab and another ......Respondents Coram: Hon'ble Ms Justice Nirmaljit Kaur Present : Mr. G C Rattan, Advocate for the petitioner -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C praying for quashing of the order dated 06.12.2010 (P5) passed by the learned Additional Sessions Judge, Jalandhar on the ground that challan under Section 173 Cr.P.C in case FIR No. 235 dated 27.12.2008 under Section 406, 420 IPC, P S Nurmahal, District Jalandhar (P3) has been submitted in the trial Court by the local police of Police Station Nurmaha. The aforesaid FIR was registered at the behest of the present petitioner against respondent No. 2. The allegations in the FIR were that the CRM M 6367 of 2011 2 present petitioner entered into an agreement to sell dated 02.11.2006 with respondent No. 2 - Surjit Singh for purchasing the land. Earnest money was also paid by the petitioner in pursuance to the aforesaid settlement. Thereafter, instead of executing sale deed in favour of the present petitioner, the said Surjit Singh executed sale deed dated 04.02.2008 in favour of Sohan Singh. As such, allegation of fraud and cheating with regard to not returning the earnest money to the petitioner was levelled against respondent No. 2. After investigation, challan was filed by the prosecution. However, the Judicial Magistrate Ist Class, Phillaur vide its order dated 25.09.2009 found that the dispute was of civil nature and no criminal offence was made out against respondent No. 2. Accordingly, respondent No. 2/accused was discharged. Aggrieved, the present petitioner filed revision petition against the aforesaid order dated 25.09.2009 passed by the JMIC. Phillaur. However, the Additional Sessions Judge, Jalandhar, vide its judgment dated 06.12.2010 dismissed the revision petition. Hence, the present petition has been filed under Section 482 Cr.P.C. While challenging the aforesaid orders passed by the Courts below, learned counsel for the petitioner raised two fold arguments. Firstly, the case was fixed for framing of the charge. Challan has already been filed and at the stage of framing of the charge, the Court was required to confine to the material collected during the investigation and prima facie case for framing charges made before it. Secondly, the challan is a prima facie indicative of some incriminating material against the accused. Even, strong suspicion is sufficient to frame the charge. As such, the order dated 25.09.2009 passed by the JMIC, discharging respondent No. 2 and the CRM M 6367 of 2011 3 judgment dated 06.12.2010 passed by the appellate Court dismissing the revision against the order dated 25.09.2009 are bad in law. In order to substantiate his arguments, reliance is placed on the judgment rendered by the Apex Court in the case of Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra reported as 1998(4) RCR (Criminal) 433 as well as on the judgments rendered by this Court in the cases of Rajendra Nath Datt and others v. Union Territory, Chandigarh and another reported as 2007(2) RCR (Criminal) 254 and Samran Singh v. State of Haryana reported as 1999(4) RCR (Criminal) 495. Heard. It is well settled proposition of law that second revision is not maintainable under Section 397(3). Revision filed against the order dated 25.09.2009 passed by the Judicial Magistrate Ist Class, Phillaur has already been dismissed vide judgment dated 06.12.2010 passed by the Additional Sessions Judge, Jalandhar. The present petition is nothing but a second revision petition under the garb of Section 482 Cr.P.C. At the same time, it is also well settled that petition under Section 482 Cr.P.C cannot be entertained until and unless either there is a misuse of process of law or miscarriage of justice. However, in the present case, no such ground has been raised which may enable this Court to come to a conclusion that there has been any misuse of process of law or miscarriage of justice. Even on merit, no offence under section 406, 420 IPC is made out against respondent No. 2. As per the facts in the present case, Respondent No. 2 - Surjit Singh is stated to have entered into an agreement to sell with the CRM M 6367 of 2011 4 present petitioner on 02.11.2006. The petitioner gave Rs.4,00,000/- to respondent No. 2 Surjit Singh as earnest money towards the aforesaid settlement. The sale was never executed on one pretext or the other. Thereafter, respondent No. 2 Surjit Singh sold the land in question to some one else vide sale deed dated 04.02.2008. Thus, the allegation amounts to breach of contract, for which, a remedy is available in the proceedings before the civil Court. Admittedly, the petitioner has neither filed any civil suit for recovery nor has he filed any civil suit for specific performance of the agreement to sell entered into between the parties. The date of the agreement is stated to be 02.11.2006, the land in question was sold to one Sohan Singh on 04.02.2008, i.e. after almost one year and three months. There is no mention of the date as to when the sale deed was to be executed in favour of the petitioner in pursuance to the aforesaid agreement to sell. As such from the above facts and from the perusal of FIR, neither the intention of cheat of misappropriation is made out. There is no dispute with regard to the proposition of law as laid down in the cases referred to by the learned counsel for the petitioner that only a prima facie case has to be seen for framing of the charge. However, in the present case as is evident from the facts discussed above as well as the allegation, there is not even an iota of a prima facie case of criminal offence against respondent No. 2. Hon'ble the Supreme Court in the case of Murari Lal Gupta v. Gopi Singh reported as (2005)13 Supreme Court Cases 699 in para 6 as under:- “6. We have perused the pleadings of the parties, the CRM M 6367 of 2011 5 complaint and the orders of the learned magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even, if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complainant does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that to at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent.” Similar view was expressed by the Apex Court in the case of Suresh v. Mahadevappa Shiappa Danannava and Anr. reported as 2005 AIR (SC) 1047, quashed the complaint case, wherein, the allegations of cheating was made by the complainant against the petitioner on the ground that the CRM M 6367 of 2011 6 accused had executed an agreement to sale her house but backed out by holding that it is a dispute of civil nature and there was no allegation that the accused had fraudulent or dishonest intention at the time of making the promise. Even in the case of B Suresh Yadav v. Sharifa Bee and another reported as (2007) 13 Supreme Court Cases 107, the Apex Court went to hold that the power of the High Court for quashing of the criminal can be exercised where a civil suit is also pending between the parties in respect of the same subject matter and the criminal proceedings in such like cases amounting to abuse of process of law. This Court in the case of Arun Kumar and another v. State of Punjab and another reported as 2006(3) RCR (Criminal) 793, in some what similar circumstances quashed the proceedings by relying on the judgment of the Apex Court rendered in her case of H R Verma v. State of Bihar, reported as AIR 2000 SC 2341, by holding that:- “6. From the simple reading of the allegations made in the FIR, it is apparent that it was a case of breach of contract, which may not give rise to an offence of cheating. Dishonouring of commitment and avoiding of contract would give rise to civil liability. In H R Verma v. State of Bihar, AIR 2000 SC 2341, Hon'ble the Supreme Court, while dealing with a similar question 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 CRM M 6367 of 2011 7 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 at the beginning of the transaction, that is the time when the offence is said 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.” Applying the test laid down in all the above said cases for the purpose of establishing an offence of cheating, complainant is required to show that the accused had fraudulent or dishonest intention. In the present case, there was no allegation right from the beginning that there was any fraudulent and dishonest intention on the part of respondent No. 2. If at all as is evident from the facts narrated above, it is a case of breach of contract which may not give rise to an offence of cheating. In view of the foregoing discussion, the present petition is dismissed being devoid of merit. (Nirmaljit Kaur) Judge 01.03.2011 mohan