Prashant Kumar Agarwal, J. - (1.) THE accused -petitioner has filed this Criminal Misc. Petition under Section 482 Cr.P.C. with a prayer to quash and set aside the FIR No. 310/2014 registered at Police Station, JDA, Jaipur for the offences under Sections 420 and 406 IPC mainly on the ground that the dispute between the parties at the most is of civil nature to which colour of criminality has been given.
(2.) BRIEF relevant facts for the disposal of this petition, as emerged from the complaint, material filed by the petitioner alongwith the petition and the evidence so far collected during investigation which is available on case diary, may be stated as below: - - "(1) Accused -petitioner agreed to sell and respondent -complainant agreed to purchase Plot No. 24 admeasuring 110 sq.yards at the rate of Rs. 11,500/ - per sq.yard i.e. for a total sale consideration of Rs. 12,65,000/ - on 4.8.2012 and petitioner received Rs. 70,000/ - in cash from the complainant as advance and the complainant agreed to pay Rs. 4,30,000/ - on or before 9.8.2012 and rest of the sale consideration on or before Deepawali of 2012. A receipt dated 4.8.2012 was issued by the petitioner to that effect. (2) The respondent -complainant paid Rs. 3,30,000/ - on 8.8.2012, Rs. 1,00,000/ - on 10.9.2012 and Rs. 3,00,000/ - on 27.11.2012 and thus, a total amount of Rs. 8,00,000/ - was paid by him to the accused -petitioner out of the aforesaid total sale amount. (3) A notice dated 4.10.2013 was sent by the petitioner through his counsel to the complainant admitting the aforesaid transaction of sale with further averment that till date only an amount of Rs. 70,000/ - has been paid to him by the complainant despite demand for payment of remaining amount was made by him several times. It was further averred in the notice that the rest of the amount may be paid within a period of fifteen days and if the complainant fails to do so, the advance amount received by the petitioner from him would be refunded. (4) Second notice dated 22.11.2013 was given by the petitioner through his counsel to the complainant again admitting the aforesaid transaction of sale with the averment that out of total sale consideration only an amount of Rs. 70,000/ - was paid to him on 4.8.2012 and despite earlier notice dated 4.10.2013 payment of rest of the amount has not been made. In the notice it was demanded that the remaining amount of Rs. 11,95,000/ - with interest may be paid within a period of seven days otherwise by cancelling the agreement the advance amount of Rs. 70,000/ - would be forfeited . (5) FIR No. 1171/2013 came to be registered against the petitioner on a complaint made by the respondent -complainant at Police Station Sanganer for the offences under Sections 379, 323, 341, 504, 506 read with Section 120 -B IPC. (6) A Civil Suit for permanent injunction was filed by the complainant and one Smt. Surja Devi against the petitioner in the Court of Civil Judge (Senior Division) No. 26, Jaipur Metropolitan, Jaipur on 7.7.2014 with a prayer to restrain him by way of decree of permanent injunction not to interfere in the peaceful possession of the aforesaid plot and not to further transfer it to any other person. In the plaint it was averred by the complainant that entire sale consideration has been paid to the petitioner, but he intends to transfer it to any other person. (7) During the course of investigation FIR No. 1171/2013 in his statement of reply submitted before the investigating officer the petitioner asserted that no payment other than Rs. 70,000/ - was made to him by the complainant and the same has also been refunded to the complainant in February 2014. (8) The present FIR came to be registered on 19.3.2014 at Police Station JDA, Jaipur with the allegation by the respondent -complainant that out of total sale consideration of Rs. 12,65,000/ -, he has already made payment of Rs. 11,10,000/ - to the petitioner from time to time and possession of the disputed plot has also been handed over to him, but the petitioner has not executed allotment letter, site plan and receipt in his favour. It was also averred in the FIR that although the transaction was for the sale of Plot No. 24, but the petitioner after making changes in the scheme handed over possession of Plot No. 19 -B to the complainant. (9) During the course of investigation of the present FIR, statement of petitioner in reply was recorded by the investigating officer in which it was admitted by him that apart from the initial amount of Rs. 70,000/ -, amount of Rs. 3,30,000/ - was made by the complainant to him on 8.8.2012 and amount of Rs. 3,00,000/ - was paid on 27.11.2012. Thus, it was admitted by the petitioner that so far total amount of Rs. 7,00,000/ - has been paid to him. In this statement it was not admitted by the petitioner that an amount of Rs. 1,00,000/ - was also paid to him on 9.9.2012. (10) In the present petition it has been admitted by the petitioner that a total amount of Rs. 8,00,000/ - has been received by him on behalf of the complainant including an amount of Rs. 1,00,000/ - on 9.9.2012 through cheque. It was also averred that he has already refunded a total amount of Rs. 7,00,000/ - to the complainant from time to time in the year 2014 and he is ready to refund the remaining amount of Rs. 1,00,000/ - for which a cheque in the name of Smt. Surja Devi was filed alongwith the petition." It was submitted by the learned counsel for the petitioner that if for the sake of arguments allegations made in the FIR are accepted on their face value and are taken to be true in its entirety, even then at the most it is a case of breach of contract on the part of the petitioner, but only by that reason criminal liability of any kind cannot be fastened upon him. According to learned counsel for the petitioner for an offence to be made out under Section 420 IPC well settled legal position is that fraudulent or dishonest intention to deceive some person on the part of the accused is to be disclosed at the time when promise or representation was made and offence under this provision cannot be made out merely because the accused failed to keep his promise or representation lateron. According to him, it is a pure and simple case of breach of contract of sale which does not constitute offence of criminal breach of trust or cheating. According to him for an offence to be made out under Section 406 IPC it is essential to show that some property was entrusted to the accused and he converted it for his own use, but in the present case no such allegation has been made even by the complainant himself. It was contended that merely because the petitioner even after receiving substantial part of the sale consideration from the complainant failed to execute allotment letter etc. in his favour or did not send his name in the list of allottees to the concerned authority, it cannot be said that he has deceived the complainant or committed offence of criminal breach of trust. It was further contended that as per terms and conditions entered between the parties, the entire amount of sale consideration was to be paid by the complainant to the petitioner upto Deepawali of 2012, but as per case of the complainant himself at the most it can be admitted that only Rs. 8,00,000/ - were paid by him upto 29.11.2012 and in view of that the petitioner was entitled to cancel the agreement and refuse to execute allotment letter/site plan etc. in favour of the complainant. It was also submitted that suit for permanent injunction has already been filed by the complainant against the petitioner in respect of plot in dispute on the ground that he is being owner of it in peaceful possession and, therefore, the dispute between the parties now would be decided by the Civil Court, but the complainant only with a purpose to harass and pressurise the petitioner has lodged the FIR without foundation for any offence. Attention of the Court was also invited to the fact that an amount of Rs. 7,00,000/ -has been refunded by the petitioner to the complainant and he is ready and willing to refund the remaining amount of Rs. 1,00,000/ - to him for which cheque has been filed alongwith the petition.
(3.) IN support of his submissions, learned counsel for the petitioner relied upon the cases of Dalip Kaur & Ors. v. Jagnar Singh & Anr. reported in : AIR 2009 SC 3119 and Harmanpreet Singh Ahluwalia & Ors. v. State of Punjab & Ors. reported on : 2009 AIR SCW 3976.;