2005 ALL MR (Cri) 2772
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

Durgadas Shankarlalji Agrawal Vs. Shabbir Ahmed Mohd. Aziz Lohad & Anr.

Criminal Application No.2530 of 2003

31st March, 2005

Petitioner Counsel: Mr. J. B. KASAT
Respondent Counsel: Mr. K. S. NARWADE,Mr. D. B. PATEL

Penal Code (1860), S.420 - Cheating - Intention of cheating - Plea of cheating ought to be based on transactions from very inception - Dispute which crops up later in time does not infuse the intention of cheating in any agreement where it did not exist since beginning. (Para 5)

JUDGMENT

JUDGMENT :- Applicant herein who is the accused in Reg. Complaint Criminal Case No.141/98 in which parties have contested at the stage of issue of process and it was confirmed upto this Court.

2. Thereafter the case proceeded for evidence before the charge. After the evidence brought by the complainant was recorded, the learned Judicial Magistrate, First Class ordered below Exh.37 and declined to discharge the accused and decided to frame the charge by his order dated 6th June, 2002. Present applicant who was aggrieved thereby preferred criminal revision application before the Sessions Judge under Section 397, Cr.P.C., which was registered as Criminal Revision No.28/02, which was heard and has been dismissed by judgment and order dated 9-6-2003. It is the said order of dismissal of revision which is called in question in present criminal application under Section 482 of Cr.P.C.

3. The applicant urges that it is the fit case for quashing of the order deciding to framing of charge on the ground that even on accepting every statement contained in the complaint when read together with the documents in support, it is a clear case of a dispute of the civil nature and there is no criminality involved therein whatsoever. It is seen from the record that parties entered into an agreement of sale, copies of which are at Annexure-A, pages 10 & 11. This document conspicuously discloses the following :-

(i) that a plot in private/un-sanctioned lay out was agreed to be sold was numbered as Plot No.40 out of Sheet No.50, Nazul Sheet No.1179 out of Agriculture Survey No.173-2 and was bounded within boundaries namely Plot Nos.41, 37 & 38 and a road falling on the Western side;

(ii) the area covered by the said plot is 5000 sq.ft.

(iii) the rate agreed is Rs.26/- per sq. ft. and the total cost thereof is Rs.1,30,000/-.

(iv) earnest money of Rs.30,000/- was received and balance Rs.1,00,000/- was proposed to be received on or before 30th July, 1994. Municipal taxes prior to the sale-deed were to be borne by the seller, while the development charges were to be borne by the purchaser.

(v) it is further agreed that in the event the lay-out could not be sanctioned within the agreed time limit for execution of sale deed, the time fixed for agreement would stand automatically enlarged.

4. It is seen that the applicant herein gave notice to the respondent/complainant calling upon him to get the sale-deed executed within 7 days from the date of notice which is of 11-1-1995 and also intimated that failure of the complainant to get the sale-deed executed shall entail in cancellation. It is seen from the reply to the notice, Exh.-C, Page-14, that the complaint raised the dispute as to the location, area of plot and also raised a dispute that the petitioner was not entitled to cancel the agreement of sell. It is thus clear that the real controversy has occurred due to the initial private layout not being sanctioned in its original form. It is also clear that the petitioner has offered to sell a plot of area approximately nearer to the area agreed, however, its location, dimension all had changed because the layout as per the proposal was not sanctioned by the authority. Due to the controversy which had cropped up, on one hand the present respondent/original complainant has not only filed civil suit for specific performance but has also filed a private complaint as referred to, which had led the direction for framing the charge.

5. It is a clear case of a dispute of civil nature on the controversy on which the parties could not match and it cannot be said that it was a case of breach of trust or intention of cheating on the very day on which the agreement of sale was entered. The plea of cheating ought to have been based on the transactions from very inception. The dispute which crops up later in time does not infuse the intention of cheating in any agreement where it did not exist later on (sic). Even any subsequent dishonest intention, constraining any accused to perform his part of promise does not attribute to such accused the intention of cheating, relating back to the date of agreement where intention to cheat was not present. In the present case, the dispute is on some other issues than those which have been made to surface in criminal complaint. Final dispute is essentially of civil nature and parties are already before the Civil Court.

6. In the result the petitioner/applicant is bound to succeed. The judgment of the Sessions Judge which is based on the ground that no deficiency could be found with the complaint etc., are based in superficial approach. In the result, rule is made absolute and the order passed by the learned Judicial Magistrate, First Class, directing framing of charge passed on 6-6-2002 in Regular Complaint No.141/98 is quashed and set aside and the complaint is dismissed.

Petition allowed.