Aruna Suresh, J.@mdashImpugning the order of the learned MM dated 1.8.2007 in complaint case No. 4211/1 filed by the petitioner under Sections 420/34 Indian Penal Code (hereinafter referred to as IPC) and of the revisional court dated 29.9.2007, this petition has been filed by the petitioner/ complainant. Complainant through accused No. 3 had entered into an agreement for sale of Flat No. 117, Hans Bhawan, Bahadur Shah Zafar Marg, New Delhi with accused No. 1 Upender Singh for consideration of Rs. 29.50 lacs. Accused No. 1 handed over property tax and electricity bills to the complainant showing the title of accused No. 2 Kamaljit Kaur in the said property and represented himself to be the power of attorney holder of accused No. 2 and, therefore, empowered to execute necessary documents for sale of the property in favour of wife and sister-in-law of the complainant.
2. Complainant paid a sum of Rs. 1 lac in cash against receipt-cum-agreement to sell in the name of his wife and sister-in-law on the condition that sale deed would be executed within 30 days but accused No. 1 failed to execute the sale deed as promised. Despite efforts made by the complainant, the accused persons did not contact the complainant. The accused persons allegedly misrepresented the facts and gave false receipt-cum-agreement to sell. Feeling cheated complainant reported the matter to the police on 3.7.2007 who did not take any action on the said report. Hence, complainant filed complaint u/s 200 Criminal Procedure Code (hereinafter referred to as Cr.P.C.) for offences under Sections 420/34 IPC against the accused persons.
3. Learned counsel for the petitioner has submitted that the Magistrate could not have dismissed his application u/s 156 (3) Cr.P.C. and it should have sent the matter to the SHO for investigation.
4. There might be a dispute between the parties, may be, purely of civil or criminal in nature. For deciding the dispute purely of civil in nature, the aggrieved person is required to seek civil remedy in a civil court of law whereas for dispute of criminal nature the aggrieved person has to approach appropriate authorities for initiating criminal proceedings against the offender. In mixed or hybrid kind of cases involving both civil disputes and criminal offences, the aggrieved person can file a civil suit as well as approach the concerned authorities or a criminal court for taking criminal action against the offender. These disputes can be personal or private in nature or may relate to commercial transactions or a contractual dispute.
5. In
(V) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that a complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegation in the complaint disclose a criminal offence or not.
6. The transaction in question relates to property and the matter is of contractual dispute in nature. An offence punishable u/s 420 IPC speaks of an offence of cheating and dishonestly inducing any person for delivery of property.
7. This dishonest intention to cheat should be at its initial stage when the transaction is entered into between the parties and therefore, it has to be inferred from the facts and circumstances as narrated in the complaint or found out during the investigation of the case. Any subsequent act on the part of the defaulter even if it reflects dishonest intention cannot be considered by the court as an offence falling within the meaning of Section 420 IPC. The distinction between breach of contract and the offence of cheating is very fine. It depends upon the intention of the accused at the time of inducement which can be judged by a subsequent conduct but, the subsequent conduct itself cannot be the sole test. Fraudulent or dishonest intention has to be shown to exist right at the beginning of the transaction. If a person fails subsequently to keep up his promise, it would not mean that he had culpable intention not to fulfil his part of the contract or to keep his promise subsequently.
8. On the facts and circumstances as narrated in the complaint prima facie no offence u/s 420 IPC is made out against any of the accused persons. Complainant had served a notice dated 3.7.2007 upon the accused persons calling upon them to specifically perform the receipt-cum-agreement to sell dated 9.11.2005 entered into inter se the complainant and accused No. 2. Perusal of the notice makes it clear that complainant had nowhere alleged that he had been cheated by making misrepresentations by any of the accused persons. Rather this notice makes it clear that complainant wanted the accused persons to perform their part of the contract by executing the sale deed as he was ready and willing to pay the balance amount as per the agreement. He called upon the accused persons to inform him within 15 days of receipt of notice as to the date and time when they would come to Delhi for the purpose of executing proper sale deed of the flat in question in favour of the complainant. It is only in para 12 of the notice that complainant has expressed his displeasure to the act and conduct of the accused persons and it was only in case the accused persons failed to execute the sale deed in performance of receipt-cum-agreement to sell, the complainant would presume that he had been duped or cheated by the accused persons intentionally and malafidely. Thus, it is clear that till notice was issued, there was no circumstance to indicate that accused persons at the time of entering into an agreement with the complainant had misrepresented the facts with an intention to cheat him of Rs. 1 lac, the earnest money paid by the complainant.
9. The dispute, therefore, essentially is civil in nature and the remedy available to the complainant is to file a suit for specific performance of the said agreement. Non performance of the agreement in any manner would not culminate into any criminal offence u/s 420 IPC.
10. Criminal breach of trust is defined in Section 420 IPC and it is made punishable u/s 406 IPC. For invoking these provisions, complainant has to show that he had entrusted the accused persons with property or, had given them any dominion over his property and the accused persons dishonestly misappropriated or converted the said property to their own use or, dishonestly disposed of the said property. Sections 405/406 have been interpreted in Indian Oil Corporation (supra) as follows:
22. A careful reading of the section shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
11. Thus, it is clear that there has to be entrustment of property with dominion over the said property and in the absence of the same, there cannot be any criminal breach of trust.
12. In the present case, as per the complaint of the complainant himself there was no entrustment of property or entrustment with dominion over the property. Complainant had paid Rs. 1 lac as earnest money at the time of execution of receipt-cum-agreement to sell with conditions incorporated therein. Therefore, no offence u/s 406 IPC is made out against any of the accused persons. The Revisional Court, therefore, rightly dismissed the revision petition as the complaint does not disclose any commission of offence by any of the accused persons. Hence, I find the orders of the trial court as well as the revisional court just and proper. They suffer with no infirmity or illegality. Petition is accordingly dismissed.
