Ranjit Kumar Lohria vs Madan Lal

Harmohinder Kaur Sandhu, J.

Ranjit Kumar Lohria has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated September 5, 1990, (Annexure P/1) and the subsequent order of summoning (Annexure P/2) and the order of the Sessions Judge (Annexure P/3) along with other proceedings pending in the Court of Judicial Magistrate, Ist Class, Sirsa. The brief facts of the case are that Kamla Rani wife of the petitioner owned a plot measuring 19 marlas situated in Khanna Colony, Noida. On March 17, 1990, the petitioner agreed to sell that plot to Madan Lal respondent for a consideration of Rs., 2,15,000/ and received Rs. 1,000/ as earnest money in the presence of the witnesses. He represented that he was entering into an agreement to sell the plot with the consent and consultation of his wife and he had full powers to transfer the same. The sale deed was to be executed upto 28th June, 1990. Madan Lal found that the petitioner and his wife were negotiating to sell the aforesaid plot to another person and therafter he filed a civil suit titled Madan Lal v. Ranjit Kumar etc. Ranjit Kumar and his wife were restrained by the Court from alienating the plot during the pendency of the suit. In that suit Kamla Rani filed a written statement alleging that her husband Ranjit Kumar had no title to sell the plot nor she had consented that he could negotiate with regard to the plot. Madan Lal alleged that Ranjit Kumar had dishonest intention from the very beginning and he committed fraud on him and obtained Rs. 10,000/ by way of earnest money. He had no intention to sell the plot so he and his wife never appeared before the Sub Registrar on the date fixed for the execution and registration of the saledeed. On these allegations he filed complaint Annexure P/1 for prosecution of Ranjit Kumar for an offence under Section 420 IPC.

After preliminary evidence was recorded the trial Court summoned the petitioner to stand trial for the offence under Section 420 IPC. Aggrieved by this order dated 17.8.1991 the petitioner filed a revision petition which was dismissed by the learned Sessions Judge vide order Annexure P/3.

The petitioner assailed the complainant as well as the summoning order and the order of the Sessions Judge on the ground that no case of misrepresentation or fraud was prima facie made out against him. There was no concealment of any fact at the time he executed agreement to sell in favour of the respondent. According to the settled proposition of law fraud is not to be presumed. Rather it is to be established by way of evidence. The precondition and most relevant ingredient of Section 420 IPC was dishonest intention at the very inception of the transaction. It was further pleaded that facts and circumstances of the case revealed that the dispute was of civil nature and the respondent started criminal proceedings with an oblique motive.

I have heard the learned Counsel for the parties.

It was argued on behalf of the petitioner that Annexure P/5 copy of the agreement for sale shows that no misrepresentation was made to the respondent nor there was any dishonest intention on the part of the petitioner at the time of entering into an agreement to sell. Dishonest intention cannot be inferred from subsequent failure of the contract. There was no inducement on the part of the petitioner which led the respondent to part with the sum of Rs. 10,000/ by way of payment of earnest money. It was further contended that a civil suit had already been filed by Madan Lal whereby the petitioner and his wife had been restrained from alienating the plot in question, so the criminal proceedings amounted to an abuse of the process of the Court and were liable to be quashed on this short ground.

The learned Counsel for the respondent, on the other hand, argued that criminal remedy is not barred simply because the respondent had filed a civil suit. The two remedies are not mutually exclusive but are clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person or property. This does not affect the civil remedy at all for suing the wrong doer. As after entering into an agreement to sell the plot and receiving earnest money the petitioner and his wife tried to transfer the plot to some third person the respondent was compelled to have resource to civil court in order to defend his rights. The complaint was filed because the petitioner had misrepresented that his wife had consented that he should negotiate for the transfer of the plot and he had full powers to sell the same. It was on account of this misrepresentation that the respondent parted with the sum of Rs. 10,000/.

I find that so far as the ownership of the plot is concerned, there was no concealment on the part of the petitioner and he told the respondent that the plot belonged to his wife but she had authorised him to sell the same. Now in the written statement filed by the wife in the civil suit between the parties Kamla Rani has denied that she consented to transfer of the plot by her husband. This question is pending decision in the civil Court. The Civil Court after recording evidence will decide whether the wife had authorised the petitioner to sell the plot or not . Unless that question is decided it will not be proper to prosecute the petitioner on the allegations that he induced him to part with a sum of Rs. 10,000/ on the representation that he had power to transfer the plot. An unreported judgment of the Supreme Court dated 10.2.1987 in Criminal Appeal No. 81 of 1987, Sardool Singh and another v. Smt. Nasib Kaur is to the same effect.

As a result I accept this petition, quash the complaint Annexure P/1 and orders Annexures P/2 and P/3 and subsequent proceedings pending in the Court of Judicial Magistrate Ist Class, Sirsa. This order will, however, not come in the way of the respondent in instituting appropriate proceedings in future in case the civil Court gives finding to the effect that Kamla Rani had not given her consent to the petitioner to sell her plots and he made this wrong representation at the time of executing agreement to sell in favour of the respondent.