Servesh Kumar Gupta, J. -
(1.) BY means of this petition, a prayer has been made to quash the entire proceedings of criminal case no. 377/2007, titled as 'State Vs. Smt. Nazarat Khatoon and another', based on the chargesheet submitted by the police on 22.12.2006 against the petitioners, for the offence of Sections 406/420 IPC, pertaining to crime no. 448/2006, registered at P.S. Kotwali, Pauri Garhwal. The background facts are that petitioners and respondent no. 2 -Munawwar Hussain, are residents of Pauri town. Petitioners owned an immovable property bearing no. 69 in the records of Nagar Palika, Pauri, located in the lower bazaar of town. This immovable property is also numbered as 28/30/8/5112, Khet No. 338, in 'Ibatsan Bandobasti'. An oral agreement was entered into between the parties to sell the aforesaid property for a total consideration of Rs. 13.00 lakhs. Out of that consideration, a sum of Rs. 5.00 lakhs had been paid by respondent no. 2 to the petitioners, which is an admitted fact. Thus, a sum of Rs. 8.00 lakhs had to be paid at the time of sale deed, which was to be executed till December, 2004. The complainant insisted for executing a registered agreement to sale in this regard, but that was averted by the petitioners, for one reason or the other, and simply, an un -registered agreement to sale was entered into between the parties on a Non -Judicial Stamp paper, worth Rs. 100/ -. As the time passed away, respondent no. 2 came to know that this property was in fact mortgaged with State Bank of India, Pauri, in lieu of some loan taken by petitioner Mohd. Azam Khan for his shop. The complainant asked the petitioners to return his money and also expressed his unwillingness in completion of the transaction.
(2.) ON the other hand, petitioner Mohd. Azam Khan, as per the covenant, reduced in an un -registered agreement to sale, remained always ready to execute the sale deed and in pursuance thereof, he remained present in the office of Sub -Registrar (Property Registration) Pauri Garhwal on 31.12.2004, i.e. the last date of executing the sale deed. He also moved an application before the Sub -Registrar on the same day, certifying his presence in that office, showing his willingness to execute the sale deed, in order to honour the covenant between the parties. Since the property was mortgaged with the bank, hence the private respondent was not inclined to get the sale deed executed in his favour. Thereafter, when the money was not returned, he filed a civil suit no. 10/2006 in the court of Civil Judge concerned on 30.11.2006, to recover money from the petitioners. It appears that the dispute, regarding return of money, as escalated between the parties, gave rise to a criminal case no. 446/2006, State Vs. Munawar Hussain, launched by Mohd. Azam Khan, showing the incident of 24.2.2005. The police, after investigation, submitted chargesheet under Sections 323/504/506 IPC against Munawar Hussain, and that case was tried by Judicial Magistrate -I, Pauri Garhwal.
(3.) IT is also pertinent to mention here that when the money was not returned, the respondent moved an application at P.S. Kotwali, Pauri in February, 2005, but the same was not paid any heed by the police nor any action was taken in pursuance thereof. Later on, the respondent became indisposed and left Pauri for Dehradun and Delhi for a long time, in order to recover himself from the physical illness. When he returned to Pauri after his treatment, he moved an application u/s 156(3) Cr.P.C. on 7.11.2006, whereupon the first information report could be lodged on 10.11.2006 by the Police, which resulted into the submission of impugned chargesheet. It has been contended, on behalf of petitioners, that the entire facts, as stated in the FIR, could not be a subject of submission of chargesheet by the police, inasmuch as, it was a civil dispute and at the most, a suit could have been launched by the private respondent for specific performance of contract. However, there was no occasion of any cheating, on the part of petitioners, to cheat the respondent. This argument, put forth by learned counsel for the petitioners, could have borne some weight if the property, in question, would not have been under mortgage with the bank. Petitioner Mohd. Azam Khan, knowingly well that the property, under transaction, had been mortgaged with the bank, in lieu of some loan borrowed by him for his shop and by concealing this fact, he entered into an un -registered agreement with the private respondent and obtained Rs. 5.00 lakhs in cash from him, which itself manifests that his intention was not clean from the very beginning. Certainly, there has been a wrongful gain in favour of Mohd. Azam Khan by obtaining Rs. 5.00 lakhs in this transaction and simultaneously, a wrongful loss was caused to Sri Munawwar Hussain, which are the essential ingredients for the offence of cheating. So, the police has rightly submitted this chargesheet against the petitioners. There is no force at all in this petition, which is liable to be dismissed. Petition is, accordingly, dismissed. Impugned order dated 28.2.2007, granted by this Court, is hereby vacated. Inform the court below to proceed with the trial ahead.;