VIMAL TIWARI Vs. STATE OF U P
LAWS(ALL)-2012-5-236
HIGH COURT OF ALLAHABAD
Decided on
May 13,2012
VIMAL TIWARI
Appellant
VERSUS
STATE OF U P
Respondents
JUDGEMENT
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(1.)This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet submitted in case crime No. 1302 of 2008 registered in the Court of Chief Judicial Magistrate, Gautam Budh Nagar as criminal case No. 13878 of 2008, State v. Vimal Tiwari, under Sections 406, 420 IPC, P.S. Sector-20, Noida, Gautam Budh Nagar. Heard Sri Anoop Trivedi, learned counsel for the applicant, learned A.G.A. for the State and Sri Ayub Khan, learned counsel for the complainant - opposite party No. 2.
F.I.R. in this case was lodged on 25.9.2008 at P.S. Sector-20, Noida, Gautam Budh Nagar on the basis of application under Section 156(3) Cr.P.C. moved by the complainant Arvind Kumar (opposite party No. 2) against the applicant -Vimal Tiwari. It was alleged in the F.I.R. that Plot No. A-82, Sector-80, Noida was allotted to M/s. B.V. Engineers Pvt. Ltd. and accused Vimal Tiwari was the Director of the said Firm. The complainant entered into an agreement for sale of the said Plot on 21.7.2004 for a consideration of Rs. 9,11,000/- and a sum of Rs. 20,000/- in cash and Rs. 80,000/- through cheque No. 595057 of Punjab National Bank, Malviya Nagar, New Delhi was paid as earnest money. The complainant entered into contract on behalf of his mother Smt. Sushma Ghai. Part of the remaining payment was to be made by 15.8.2004 and remaining amount was to be paid by the complainant by 31.8.2004 and the accused was to obtain permission for transfer from Noida Authority and to execute the sale-deed in favour of mother of the complainant. On 14.8.2004, the accused refused to accept part payment on the ground that the proceedings for permission to transfer were pending. When the accused failed to transfer the property in favour of mother of the complainant, she gave a notice to the accused on 23.8.2004 through counsel to execute the sale-deed on 31.8.2004 after receiving the balance sale consideration. The accused did not turn up to execute the sale-deed and gave a false reply cancelling the contract and offered to return the money, but neither Plot was transferred nor money was returned. It was also alleged in the F.I.R. that Vimal Tiwari committed breach of trust and fraud with the mother of the complainant and legal action be taken against him. After investigation, charge-sheet was submitted by the police.
(2.)When the case was taken up as fresh on 6.3.2009, Hon'ble Ravindra Singh, J., while issuing notice to the opposite party No. 2, directed as under :
Considering the submissions made by learned counsel for the applicant that applicant is ready to return the amount of Rs. One lac with simple interest, it is directed that in case the applicant deposits the amount of Rs. One lac with simple interest in the Court of learned C.J.M. Gautam Budh Nagar, within one month from today, the further proceedings of criminal case No. 13878 of 2008 under Sections 420 and 406 IPC pending in the Court of learned C.J.M. Gautam Budh Nagar shall remain stayed till the next date of listing.
In default this interim order passed by this Court shall be automatically vacated.
It is further directed that the aforesaid amount, if so deposited as directed by this Court shall be paid to O.P. No. 2 Arvind Kumar and his mother Smt. Sushma Ghai.
List after four months for orders.
In pursuance of order dated 6.3.2009, a sum of Rs. 1,16,400/- has been deposited by the applicant in cash on 31.3.2009 in the Court of Chief Judicial Magistrate, Gautam Budh Nagar. A photo stat copy of the receipt was filed by learned counsel for the applicant on 1.4.2011.
(3.)Sri Anoop Trivedi, learned counsel for the applicant submits that it is a case of civil nature and does not amount to cheating or criminal breach of trust. He further submits that no written agreement was executed between the parties and only a receipt was issued. The money was never entrusted to the applicant as deposit, but was paid by way of earnest money or part payment of sale consideration and, therefore, there is no question of any criminal breach of trust. The further submission is that it is nowhere alleged either in the F.I.R. or in the statement of the complainant or his mother that at the time of alleged agreement, the intention of applicant was mala fide and, therefore, the ingredients of offence of cheating punishable under Section 420 IPC are also not attracted.
F.I.R. in this case was lodged on 25.9.2008 at P.S. Sector-20, Noida, Gautam Budh Nagar on the basis of application under Section 156(3) Cr.P.C. moved by the complainant Arvind Kumar (opposite party No. 2) against the applicant -Vimal Tiwari. It was alleged in the F.I.R. that Plot No. A-82, Sector-80, Noida was allotted to M/s. B.V. Engineers Pvt. Ltd. and accused Vimal Tiwari was the Director of the said Firm. The complainant entered into an agreement for sale of the said Plot on 21.7.2004 for a consideration of Rs. 9,11,000/- and a sum of Rs. 20,000/- in cash and Rs. 80,000/- through cheque No. 595057 of Punjab National Bank, Malviya Nagar, New Delhi was paid as earnest money. The complainant entered into contract on behalf of his mother Smt. Sushma Ghai. Part of the remaining payment was to be made by 15.8.2004 and remaining amount was to be paid by the complainant by 31.8.2004 and the accused was to obtain permission for transfer from Noida Authority and to execute the sale-deed in favour of mother of the complainant. On 14.8.2004, the accused refused to accept part payment on the ground that the proceedings for permission to transfer were pending. When the accused failed to transfer the property in favour of mother of the complainant, she gave a notice to the accused on 23.8.2004 through counsel to execute the sale-deed on 31.8.2004 after receiving the balance sale consideration. The accused did not turn up to execute the sale-deed and gave a false reply cancelling the contract and offered to return the money, but neither Plot was transferred nor money was returned. It was also alleged in the F.I.R. that Vimal Tiwari committed breach of trust and fraud with the mother of the complainant and legal action be taken against him. After investigation, charge-sheet was submitted by the police.
(2.)When the case was taken up as fresh on 6.3.2009, Hon'ble Ravindra Singh, J., while issuing notice to the opposite party No. 2, directed as under :
Considering the submissions made by learned counsel for the applicant that applicant is ready to return the amount of Rs. One lac with simple interest, it is directed that in case the applicant deposits the amount of Rs. One lac with simple interest in the Court of learned C.J.M. Gautam Budh Nagar, within one month from today, the further proceedings of criminal case No. 13878 of 2008 under Sections 420 and 406 IPC pending in the Court of learned C.J.M. Gautam Budh Nagar shall remain stayed till the next date of listing.
In default this interim order passed by this Court shall be automatically vacated.
It is further directed that the aforesaid amount, if so deposited as directed by this Court shall be paid to O.P. No. 2 Arvind Kumar and his mother Smt. Sushma Ghai.
List after four months for orders.
In pursuance of order dated 6.3.2009, a sum of Rs. 1,16,400/- has been deposited by the applicant in cash on 31.3.2009 in the Court of Chief Judicial Magistrate, Gautam Budh Nagar. A photo stat copy of the receipt was filed by learned counsel for the applicant on 1.4.2011.
(3.)Sri Anoop Trivedi, learned counsel for the applicant submits that it is a case of civil nature and does not amount to cheating or criminal breach of trust. He further submits that no written agreement was executed between the parties and only a receipt was issued. The money was never entrusted to the applicant as deposit, but was paid by way of earnest money or part payment of sale consideration and, therefore, there is no question of any criminal breach of trust. The further submission is that it is nowhere alleged either in the F.I.R. or in the statement of the complainant or his mother that at the time of alleged agreement, the intention of applicant was mala fide and, therefore, the ingredients of offence of cheating punishable under Section 420 IPC are also not attracted.
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