S.D.khanna (Retd.), Brig.Dr. vs Nand Lal Aggarwal

H.S. Rai, J.

Brig. Dr. S. D. Khanna (Retired) has filed this petition under section 482, Criminal Procedure Code, for quashing the complaint under section 420, Indian Penal Code, and the order dated March 23; 1989 passed by Judicial Magistrate Ist Class, Chandigarh, summoning the petitioner as an accused under section 420, Indian Penal Code.

The facts leading to the filing of the complaint which is sought to be quashed in this case are that Smt. Kamla Khanna was allotted a two Kanal plot No. 64, in Sector 6, Panchkula in the year 1973. She expired in June, 1983, leaving behind the petitioner and a minor daughter Radhika Khanna as her legal heirs. After the death of his wife, the petitioner applied to the Estate Officer, HUDA, Panchkula, for transfer of plot in his name. This application was pending and in the meantime on October 14, 1987, the petitioner entered into an agreement with Nand Lal Aggarwal, respondent for sale of the said plot for Rs. 4 lacs and amount of Rs. 40 was paid as earnest money. The said agreement which was reduced into writing had been finalised through M/s. Subhash Mangat Company, Property Dealers, Chandigarh. As per the terms of the agreement, the petitioner was to obtain permission of the Estate Officer, HUDA, Panchkula, for sale of the plot. The Estate Officer asked for an affidavit of minor Radhika regarding transfer of the plot in the name of the petitioner and the said affidavit was sent to the Estate Office, but it was not accepted on the ground that affidavit of a minor was not valid. The petitioner was further told that permission for sale of the plot could not be granted as the interest of the minor could not be transferred without the permission of the civil Court. It is further alleged that before the above objections could be removed, minor Radhika, who is now 17 years of age, under the influence of relatives of her mother, told the petitioner that she would not sell the plot. She also sent a notice dated January 25, 1988, through her Advocate to the respondent to the effect that she was legal heir of her mother, Kamla Khanna, deceased and that she would not be bound by any sale effected by her father i. e. the petitioner. In view of these developments the petitioner returned the amount of Rs. 40,000/ by cheque No. 626122, dated March 26, 1988, drawn on State Bank of India, Jawaher Nagar Branch, Srinagar. The said cheque, which was in the name of Shri Nand Lal Aggarwal, respondent was sent by registered post on March 26, 1988, along with letter, Annexure P. 3 to M/s. Subhash Mangat and Co., Property Dealers, Chandigarh. The petitioner did not receive any reply and then sent another letter dated April 15, 1988, Annexure P. 4 to the Property Dealer with a copy to the respondent asking them to confirm the receipt of the cheque. However, he did not receive any reply and the respondent on May 16, 1988, filed a complaint under section 420, IPC against the petitioner. This complaint was dismissed in default on August 20, 1988, and then another complaint dated February 23, 1989, Annexure P. 5 was filed.

It was alleged in the complaint that the petitioner wrongly represented himself as the sole owner of the property and entered into an agreement for sale and obtained Rs. 40,000/ as an earnest money. He failed to obtain permission of the Estate Officer despite reminders by the respondent and that the respondent was willing to perform his part of the contract and was ready with the remaining amount of Rs. 3.60 lacs in cash and in this, manner the petitioner had induced the respondent to deliver it Rs. 40,000/ and thus committed an offence under section 420 Indian Penal Code.

It is pleaded that the petitioner had made genuine efforts to obtain permission of the Estate Officer to transfer the plot and on account of the complications referred to above, the permission was not granted and he immediately returned the amount by cheque. The conditions Nos. 3, 7 and 10 of the agreement Annexure P. 1 attached to the petition read as under :

"3. That the said seller will clear all the outstanding dues against the said plot (i.e. towards price, increased area enhanced compensation, interest/penalty) and will get No Due Certificate and permission to transfer/sell the said plot from the Estate Officer, HEDA, Panchkula, and hand over the same to M/s. Subhash Mangat and Company (Regd.), Property Dealers, 1285/21B, Chandigarh, 10 days before the last date of execution of transfer papers.

That if the permission to transfer, is not granted by the Estate Officer, HUDA, Panchkula, due to any reasons then the earnest money will be refunded to the purchaser immediately without any delay.

That if the purchaser will back out from this bargain then his earnest money shall stand forfeited in favour of the said seller and if the said seller will back out from this bargain then he will pay double of the earnest money to the said purchaser being the liquidated damages and the purchaser shall have the option either to accept the damages or to get the said plot transferred through Court of law under Specific Relief Act."

The case of the petitioner is that there is no element of cheating involved in the case and the sale deed could not be executed because the Estate Officer did not grant permission for transfer of the plot and as per condition No. 7 of the agreement reproduced above, the petitioner refunded the amount to the respondent through Property Dealer by a cheque dated March 26, 1988. Further condition No. 10 provides that if the seller will back out from the bargain he will pay double the earnest money as liquidated damages projected. On behalf of the petitioner, it is contended that even on the face of it the case taking it at its highest pedestal is of infringement of terms and conditions of agreement which is essentially of a civil nature and no criminal intention is involved. Reliance in this connection is placed on Milkhi v. Bhan Singh, 1985(2) RCR 1 . This was also a case of failure on the part of the seller to execute the sale deed after receiving earnest money in pursuance on an agreement executed with the purchaser. It was held that no criminal intention was involved and the summoning order was quashed.

The learned counsel for the respondent laid stress that at this stage the allegations in the complaint are to be seen which disclose an offence under section 420, IPC and complaint as such was not liable to be quashed. The Supreme Court in Madhorao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, AIR 1988 SC 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. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration, the special facts of a case, also quash the proceedings even though it may be at a preliminary stage."

Therefore, in view of the laid down above and taking into consideration all the circumstances, it is clear that the petitioner had no intention to cheat. He entered into an agreement of sale bona fide believing that the Estate Officer would transfer the plot in his name as his minor daughter could not be expected to raise any objection. Further, it was necessary to obtain the permission of the Eastate Officer for sale of the plot to the respondent but the same could not be granted because interest of minor was involved and her interest could not be transferred without permission i of the Estate Officer. Immediately thereafter the petitioner refunded the amount by a cheque dated March 26, 1988 i.e. just after five months of the execution of the agreement to sell. It was after the said date that complaint against the petitioner was filed on May 16, 1988. The learned counsel for the respondent urged that the cheque was not given to him by the Property Dealer. The learned counsel for the petitioner submitted that cheque was in the name of the respondent and he did not reply to the letter sent by the petitioner for confirming the receipt of the cheque. The learned counsel submitted that in case the cheque has not been encashed so far, he was prepared to give another cheque for the amount in question.

Taking an overall view of all the facts of the case and other salient features referred to above, no offence against the petitioner is made out and the complaint dated February 23, 1989, Annexure P. 5, and the summoning order dated March 23, 1989, Annexure P. 6, are liable to be quashed. I, therefore, allow this petition and quash the complaint dated February 23, 1989 (Annexure P.) and the summoning order dated March 23, 1989 (Annexure P. 6).