Bipin Kumar Bhatnagar vs Pt.Raghbir Saran, Advocate, Ambala City

Harmohinder Kaur Sandhu, J.

Bipin Kumar Bhatnagar has filed this petition under Section 482 of the Code of Criminal Procedure for quashing. the complainant Annexure P/1 under Sections 42/406 IPC pending in the Court of Judicial Magistrate 1st Class, Ambala and subsequent proceedings, including the order of summoning dated 2381988 Annexure P/2, being illegal and amounting to an abuse of the process of the Court.

Briefly stated, the facts of the case are that Raghbir Saran filed a complaint against the petitioner on the allegations that he and his son Sham Sunder, on a representation made by the petitioner, agreed to purchase house No. 76 known as Manauli House, Ambala City for a sum of Rs. 87,500/ on 22 1988. The petitioner received a sum of Rs. 10,000/ as earnest money and issued a receipt for the same wherein it was mentioned that he will receive the'' balance amount of the sale price amounting to Rs. 77,500/ by 30th June, 1988. It was also represented that this house had been inherited by his adoptive mother Mrs. Sushila Bhatnagar. Before 30th June, 1988 the house was transferred by Bipin Kumar Bhatnagar petitioner and Shakuntla Bhatnagar to Jaipal and others. The petitioner dishonestly induced the complainant and his son to pay him a sum of Rs. 10,000/ representing that he was the a absolute owner of the house and was competent to transfer the same. After the sale of the house on 1131988 to Jaipal and others the amount of earnest money was not returned to the complainant but it was misappropriated by the petitioner and was converted to his own use. After preliminary evidence was recorded, order Annexure P/2 was passed summoning Bipin Kumar Bhatnagar to stand trial for offences under Sections 420/406 IPC.

The petitioner contended that there was no agreement to sell the house between the parties and the receipt executed by him simply showed that he received an amount of Rs. 10,000/ as earnest money. There was no criminal intention involved nor a primaface case under Section 420/406 was made out.

It was argued on behalf of the petitioner that even if the execution of the receipt is admitted then at the most it was a case of civil liability and the proper course for the complainant was to have recourse to a civil remedy. Criminal prosecution of the petitioner was launched simply to pressurise him with some ulterior motive. In support of his contention the learned counsel for the petitioner Shri K.K. Aggarwal placed reliance on the case of Tek Chand and others v. State of Haryana and others, 1991 (1) CLR 38. In this case the allegations against the accused were that they only represented themselves as owners of a piece of land and induced the complainant to pay its agreed price of Rs. 27,000/ A case under Sections 420/406 IPC was registered against the accused. It was held that in the present case where execution of the agreement, passing of the alleged consideration the extent of title etc. are in question, is in fact a dispute of civil nature and consequently the first information report was quashed.

The learned counsel for the complainant respondent, on the other hand, contended that the above mentioned authority is not applicable to the facts of the present case as no civil suit is pending between the parties not a regular agreement for sale was drafted and executed on the basis of which a civil suit could be filed. The fact remains that the petitioner obtained part of the sale consideration by representry that he was the owner of the house and that he will transfer, the same by 30th of June, 1988 after receiving the remaining sale price though he had no intention to execute any saledeed and before the specified date he along with Shakuntla Bhatnagar transferred the property in favour of Jai Pal and others. At present the only question to be considered is whether any wrong representation was made to the complainant with an intention to induce him to pay the earnest money and primafacie that fact was evident from the allegations made in the complaint.

I find that at this stage the allegation''s in the complaint arc to be seen which disclose the offences for which the petitioner was summoned to stand trial and complaint as such was not liable to be quashed, since no civil suit is pending between the parties The Supreme Court in Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, 1988(1) Recent Criminal Report 565 : AIR 1988 Supreme Court 709 held as under :

"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether an uncontroverted allegation as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."

In view of the above authority and taking into'' consideration all the circumstances, it is clear that the petitioner prima facie represented that he had authority to sell the house and he agreed to receive the remaining sale price by 30th of June, 1988 but prior to that date he sold the house to some one else in which he was found to have only 1/2 share. The remaining 1/2 share belonged to Shakuntla Bhatnagar wife of Dr. Brij Bihari Lal Bhatnagar. In the receipt issued by the petitioner even name of Shakuntla Bhatnagar was wrongly described as Mrs. Sushila Bhatnagar. The amount received by the petitioner has not been refunded to the complainant so far. As such there is no ground to quash the complaint Annexure P/1 and order Annexure P/2. The petition is, therefore, dismissed.