S. Balasubramaniaraja vs M. Muthusamy

S. Nagamuthu, J—The appellant is the complainant in C.C. No. 53 of 2006 on the file of the learned Judicial Magistrate, Sankarankoil. The respondent is the accused in the case. The appellant filed the said case by way of private complaint alleging that the respondent had committed offence punishable under Section 420 IPC. The trial Court by judgment dated 02.11.2006 acquitted the respondent. Challenging the same, the appellant is before this Court with this appeal.

The case of the appellant is as follows:

"The respondent/accused owns a landed property in S. No. 604/2B in Kalappakulam Village in Sankarankovil Taluk. He entered into an agreement for sale to sell the suit property to the complainant for a sale consideration of Rs. 5,60,000/- per acre. On 12.12.1996, as per the agreement, the complainant paid a sum of Rs. 1,21,000/-, on 03.02.1997, he paid Rs. 55,000/- and on 03.12.1997, he paid Rs. 1,95,000/-. Thus, the complainant paid a total sum of Rs. 3,71,000/- towards sale consideration. Having received the said amount, the accused did not come forward to execute the sale deed, according to the sale agreement reached. When the amount was demanded back, the accused refused. This, according to the appellant, amounts to an offence under Section 420 IPC."

Before the trial Court, on the side of the complainant, he was examined as P.W.1. No other witness was examined. Two documents were exhibited namely, the legal notice issued and the patta in the name of the mother of the accused for the land in question.

P.W.1, in his evidence has spoken about the sale agreement, the amount paid by the complainant and the failure of the accused to repay the said amount. When the above incriminating evidence was put to the accused under Section 313 Cr.P.C., the accused took the plea that there was one sale agreement reached between the parties, which expired due to lapse of limitation period. Therefore, another sale agreement was entered into. Though, according to the accused, he received the money, he has not cheated the complainant. Having considered the above materials, the trial Court acquitted the accused. That is how, the appellant is before this Court with this appeal.

In this appeal, it is submitted by the learned counsel for the appellant that when the accused had admitted that he received the money, it goes without saying that the offence under Section 420 IPC has been proved. But the learned counsel for the accused would submit that at the most, the dispute would make out only a civil dispute and no offence under Section 420 IPC has been made out.

I have considered the above submissions.

First of all, the appellant has not produced and proved the so called sale agreement. The suppression of the said document gives an adverse inference against the complainant. Though the accused has accepted that he received the money, he has stated that he did not commit any breach of the sale agreement, because subsequently there was another sale agreement entered into. This aspect has not been denied by the complainant. Above all, mere breach of the terms of the agreement would not make out an offence under Section 420 IPC. Essentially, to make out an offence under Section 420 IPC, the ingredients of Section 415 IPC are to be proved first.

Under Section 415 IPC, the prosecution should prove that the accused either dishonestly or fraudulent, should have deceived the complainant and the complainant, out of the said deception should have acted upon the same, which would not have acted upon but for the deception or fraud played upon him.

In the case on hand, absolutely there is no evidence even to infer that the accused, at the very inception, had the intention to deceive or to commit fraud on the complainant. The narration of facts, the evidence let in would all go to show that there was a dispute arising out of the sale agreement, which is only civil in nature. Absolutely, there is no evidence satisfying the requirements of Section 415 IPC.

In such view of the matter, the trial Court is right in acquitting the accused. Therefore, I do not find any merit in the appeal. The criminal appeal fails and the same is, accordingly, dismissed.