Kanwaljit Singh Ahluwalia, J. - (1.) THE present petition has been filed under Section 482 Cr.P.C. seeking quashing of the orders dated 4.4.2000 (Annexure P4), passed by the Court of Judicial Magistrate 1st Class, Ludhiana, whereby the Court came to conclusion that no charge can be framed against respondent No. 1 -Vinod Kumar and had discharged him. The impugned order (Annexure P4) was made subject matter of the revision petition. The Revisional Court also concurred with the findings returned by the trial Court and held that no offence has been committed by respondent No. 1. In the present petition, the orders dated 4.4.2000 (Annexure P4), passed by the Court of Judicial Magistrate 1st Class, Ludhiana and the order of affirmation dated 5.5.2001 (Annexure P5), passed by the Court of Sessions Judge, Ludhiana, are being assailed.
(2.) THE grievance of the petitioner can be summed up from the complaint dated 19.12.1998 (Annexure P1). It is stated therein that accused/respondent No. 1 -Vinod Kumar had executed two agreements to sell dated 10.10.1997 and 3.4.1998 (Annexures P6 and P7), respectively, with the petitioner and received earnest money. As per the deal, the sale deed was to be executed on or before 31.10.1998 on payment of the balance sale consideration. The case of the petitioner is that instead of performing his part of the agreement, respondent No. 1 - Vinod Kumar had executed the sale deed dated 18.11.1998 (Annexure P8) in favour of respondent No. 2 -Ashok Kumar. It is stated that the breach of agreements to sell (Annexures P6 and P7) amounts to cheating as respondent No. 1 retained the earnest money, which was paid by the petitioner through cheque. Thus, according to learned counsel for the petitioner, respondent No. 1 had committed offence falling under Section 420 read with Section 120B IPC. The trial Court, while discharging respondent No. 1, held that the breach of agreement will fasten respondent No. 1 with civil liability and no criminal case is made out. The following findings, returned by the trial Court, are required to be noticed: - 12. The Honourable Supreme Court of India referring to illustration (g) in the Section 415 of IPC made it clear that liability if any, arising by the breach of agreement is civil in nature and not criminal and set aside the order of the Honourable High Court and the proceedings before the learned Magistrate were quashed with costs of '10,000 in favour of the applicant. 13 to 17. XXX XXX XXX XXX XXX 18. In the case at my hands, it has not been disputed that the accused Vinod Kumar Thapar was fully competent to sell the property in dispute and has allegedly executed above referred two agreements. Therefore, the facts of this case are different from the facts of the aforesaid case. " 19 to 23. XXX XXX XXX XXX XXX 24. As discussed above, the case law referred to by the counsel for accused is fully applicable to the facts of he present case. The submission made by the APP that the accused Vinod Kumar has sold the property even before the stipulated date for execution of sale deed in favour of the complainant, to other person namely Ashok Kumar and rendering himself handicapped shows that the accused Vinod Kumar has intended to cause cheating to the complainant is not tenable as it has been made clear by the Honourable Supreme Court of India in the case of Nageshwar Prasad Singh (supra) wherein while referring to illustration (g) of Section 415, the Honourable Apex Court has observed in clear words that such transaction was purely within the purview of civil liability.
(3.) THE Revisional Court below upheld the above findings and observed as under: - 7...In Haridaya Ranjan Pd. Verma and Others Versus State of Bihar and another : 2000 (1) ACJ. 520 (S.C.) it was held by the Hon'ble Supreme Court that mere breach of contact cannot give rise to criminal prosecution for cheating unless the intention is shown right at the beginning of the transaction. It was further laid down in that case that to hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. Further that intention from the beginning cannot be attributed on mere failure to keep up the promise subsequently. Another ruling of the Hon'ble Supreme Court in Nageshwar Prasad Singh alias Sinha Versus Narayan Singh and another : 1998 (4) RCC 207 also relied upon to the same effect. The above quoted rulings are fully applicable to the facts of the present case. In the instant case as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be sold and there was no dispute about the same. There also did not appear to be any fraudulent intention on his part at the time of execution of the impugned agreements when he had title in the disputed property. As stated above, the complainant is stated to have since filed a suit for specific performance of the impugned agreements of sale made by accused Vinod Kumar in his favour. In case accused Vinod Kumar allegedly subsequently sold that property in favour of Ashok Kumar in breach of the conditions of those agreements of sale the remedy available to the complainant was purely of civil in nature especially when it was also mentioned in the agreement that upon failure of accused Vinod Kumar to execute the sale deed in terms of the agreements he was liable to pay interest on the earnest money as specified in the agreements. During the course of arguments the learned Public Prosecutor for the state relied upon a ruling of the Hon'ble Supreme Court in M/s Medchl Chemicals and Pharma Pvt. Ltd. Versus M/s Biological E Ltd. and others : 2000 (1) RCC 650. wherein it was held that simply because there was a remedy provided for breach of contract that did not by itself close the Court to come to the conclusion that the civil remedy is the only remedy and that both criminal law and civil law remedy can be perused in diverse situations. There is no dispute regarding the legal proposition laid down by Apex Court but as stated above accused Vinod Kumar had admittedly title in the disputed property agreed to be sold and there was hardly any element of cheating at the time to execution of the impugned agreement. The rights and interests of the parties will be determined in the suit for specific performance already filed by the complainant in the case. However, keeping in view the facts and circumstances discussed above the accused or any of them hardly appeared to have committed any offence in the case when the dispute between the parties regarding alienation of the disputed property in breach of the impugned agreements was merely of civil nature and the accused hardly appeared to have committed any offence by the same. In these circumstances the impugned order of the learned trial Magistrate ordering discharge of the accused respondents in the case do not in any way suffer from any factual or legal infirmity for which to interfere in this revision and the revision petition is hereby dismissed.;