HARMOHINDER KAUR SANDHU,J - (1.) ON 22nd May, 1992 Shri H. S. Ahluwalia complainant made a complaint to the Senior Superintendent of Police, U. T. Chandigarh which is as follows : "On 29th June, 1990 one D. C. Jain son of Khairati Ram, resident of House No. 1138 Sector 43-B and his wife Mrs. Usha Jain represented to him that they had agreed to purchase Plot No. 2125, Sector 38-C, Chandigarh from one Mohinder Singh of Ludhiana for a sum of Rs. 6,06,000/- and had paid Rs. 15,150/- to the Government as 25% of the sale price. They further represented that the plot was free from all encumbrances but they were not in a position to pay the balance installments to the Government and therefore, were prepared to sell the plot to him for a sum of Rs. 6,00,000/- only and according to them the market price of the plot was much higher and they would be in a position to find a customer who would pay the about Rs. 9 lacs or so, within two years. They should be allowed to find a customer who would pay the central profit to the after paying him his money alongwith interest at the rate of 24% per annum and if they could not do so, the plot would belong to him. They were to give advance notice about the customer and pay the advance received from that customer directly. In pursuance to this agreement, they received a total sum of Rs. 3,40,000/- i. e. Rs. 1,10,000/- on 29-6-1990 on which date of agreement to fell was executed and Rs. 2,30,000/- on 6-9-1990. They told him that they would be clearing the dues of the Estate Office and would soon execute the sale deed or return the advance price. They reaffirmed their promise during telephone talks. He wrote a letter to Mr. D. C. Jain Under Postal Certificate on 25-4-1992 and when he did not get any reply he sent two letters in detail by Registered Post Acknowledgement due. The acknowledgements were received back but there was no reply. He came to know that they had received about Rs. 9 lacs on account of the price of the plot from one Ajit Singh of House No. 264 Phase 1, Mohali somewhere in September, 1991 but they never informed him of about this deal nor they paid a single penny therefrom. In fact his information was that they utilised the entire money recovered from him for the purchase of two buses and furniture for three private schools. Their action amounted to an offence of criminal breach of trust and cheating. So a case may kindly be registered and the article purchased by them may be recovered so that evidence of the matter may not be lost."
(2.) ON the basis of this complaint after legal opinion was sought case FIR No. 127 of 1992 under Sections 406/420 of the Indian Penal Code was registered against Shri D. C. Jain and his wife Smt. Usha Jain at Police Station West on 7-11-1992. Shri D. C. Jain and his wife have filed the present petition under Section 482 of the Code of Criminal Procedure for quashing the above referred First Information Report. The petitioners alleged that Shri Mohinder Singh had executed an agreement to sell the plot in favour of petitioner No. 1 and had executed a General Power of Attorney in favour of petitioner No. 2 and they were to pay the future instalments. They ran short of money. So they approached the complainant Shri H. S. Ahluwalia for a loan of Rs. 1 lac. The complaint Shri H. S. Ahluwalia for a loan of Rs. 1 lac. The complainant agreed to advance loan on the condition that they were to execute an agreement to sell the alleged plot in his favour and to hand over the original documents to him as security. The agreement was prepared but the complainant changed his mind and did not make payment on plea that surety offered was inadequate and that is why agreement was not signed by petitioner No 2. Possession of the plot was then delivered to Ajit Singh as he deposited the remaining three instalments with interest in the Estate Office, Chandigarh. The First Information Report did not reveal any offence and there were no allegations of any dishonest or fraudulent intention on the part of the petitioners. Even if the allegations were assumed to be true, the same merely amounted to breach of an agreement or promise to refund the amount alongwith interest and no criminal offence was made out. A civil suit had already been filed by them in which the complainant filed his written statement and counter claim for rendition of accounts. The liability if any was purely civil and enforceable through civil court. There could be no offence of criminal breach of trust or cheating and the First Information Report against then was misconceived.
(3.) SHRI H. S. Ahluwalia complainant who was impleaded as respondent No. 2 filed his return denying the averments made in the petition and contended that the offences under Section 406 and 420 of the Indian Penal Code were duty made out as the petitioners had committed that no sale shall be made to any third party without his knowledge but they never informed him about the sale of the plot to Shri Ajit Singh or having received the sale consideration from him.;