- (1.) N. B. Asthana, J. This revision has been filed against the order dated 20-2-1995 and the charge framed on 24-3-1995 by Vth Addl. Chief Judicial Magistrate, Ghaziabad in Criminal Complaint No. 379/94, Perminder Singh v. D. P. Jairath under Section 406, IPC. Prayer for, taking action under Section 340, Cr. P. C. against the opposite party No. 1 and for awarding Rs. 5 lacs as damages on account of expenses incurred by the petitioner in the trial court and for suffering mental and physical inconvenience have also been claimed.
(2.) OPPOSITE party No. 1 filed a complaint under Sections 406, 420, IPC stating in brief that the accused represented himself to be the owner of an apartment in Sector-20 NOIDA Ghaziabad induced the complainant to purchase the aforesaid apartment in the month of November, 1990 for a consi deration of Rs. 5,30,000. On 24-11-1990 a registered agreement was arrived at between the parties to sell the aforesaid apartment for a consideration of Rs. 5,30,000. A sum of Rs. 1,98,000 was given as earnest money in part payment of the sale consideration. A special power of attorney was also executed by the accused in favour of the complainant on the same date. the accused could not sell the apartment and, therefore, Army Welfare Housing Organization decided to cancel the allotment of the aforesaid apartment in favour of the accused. In order to save the allotment of apartment the accused induced the complainant without returning the said amount of Rs. 1. 98,000 to enter into an agreement dated 4- 12-1990 for the cancellation of the said agreement of sale. The complainant executed the said agreement which has duly registered with the Sub-Registrar but the accused failed to re-pay said amount to the complainant in spite of repeated demands. On 13-12-1990 instead of refunding the said amount the complainant executed an indemnity bond to the extent of Rs. 1,98,000 promising to refund the aforesaid amount to the complainant but he did not do so. It was said that the accused knowing well that he could not sell the apartment entered into an agreement of dale by dishonestly and fraudulently inducing the complainant to part with the said amount of Rs 1,98,000. The revisionist was summoned. Evidence under Section 244, Cr. P. C. was recorded. The revisionist contended there that no case for framing charge was made out. The trial court vide order dated 7-2-1995 rejected this contention and framed charge under Section 406, IPC against the revisionist on 24-3-1995. Aggrieved by these orders the accused has come to this court in revision. I have heard the learned counsel for the revisionist and have perused the material available on record. It has been argued that after the cancellation of the agreement of sale the sum of Rs. 1,98,000 was returned to the revi sionist, that no indemnity bond dated 13-12-1990 was executed by the revisionist, that it is a forged document and, therefore, no charge on the basis of this indemnity bond could have been framed. There is however nothing in black and white to show that this amount was returned. It appears rather in probable that such a huge amount would have been returned without taking anything in black and white. Whether this document is a genuine one or forged one cannot be determined in this revision. From the order passed by the trial court on 7-2-1995 it does not appear that the genuineness of the indemnity bond was questioned before it. In any case it is fur the trial court to decide whether the indemnity bond is genuine or forged one.
(3.) IN the alternative it was urged that from the statement of the complainant it would be clear that the drafts paid by him at the times of the agreement of sale were given back by him which would indicate that neither any amount was due nor the indemnity bond was executed. IN this cross-examination the complainant gave out that both the Bank drafts one of Rs. 50,000 and another of the balance were taken by the accused and along with it the agreement of sale, power of attorney and cancellation of deed 'wore also taken back by him and at that time the bank drafts were also returned. Emphasizing this part of examination it was argued that the entire amount was re-paid. From a perusal of the entire statement as whole, it cannot be said that he admitted the return of aforesaid sum of. The trial court in its order has dealt with this point and has relied upon the affidavit of the accused dated 13-12-1990 filed before it in which the accused admitted the receipt of Rs. 1,98,000. The trial court has also stated that in case the sum of Rs. 1,98,000 had been paid then there was no necessity of executing the indemnity bond. It was of the opinion that the fact that indemnity bead was executed would be a circumstance to indicate that a sum of Rs. 1,98,000 was due upon the revisionist. Unless and until the indemnity bond is held to be a forged and fictitious document it cannot be said that no amount is due upon the revisionist. It was also contended that the matter is of a civil nature and no liability under Section 406, IPC can be fixed. From the material placed on record it would appear that the accused was not entitled to transfer the apartment in question to the complainant. In spite of it he entered into an agreement of sale and took Rs. 1,98,000 as ear money. Subsequently, the agreement of sale was cancelled. The revisionist became liable to return the sum of Rs. 1,98,000. He did not return that amount and executed the indem nity bond, which would mean that this moray was kept in trust with the revisionist. He did not return this amount and has now started saying that indemnity bond was not executed by him and it is a forged document. It therefore, prima facie appears that he dishonestly misappropriated the sum of Rs. 1,98,000 and converted it to his own use. In the circumstances it cannot be said that no case under Section 406, IPC necessitating the framing of charge was made out.;