Smt. Sakuntala Devi vs State and Others

S.N. Pathak, J.—This appeal is directed against the judgment dated 7.5.92 whereby and where under Respondent No. 2 of this appeal was acquitted.

The Appellant before this Court, the complainant had filed a complaint stating therein that there was an agreement between himself and Respondent No. 2 for selling 2 kathas of land situated at Dhurukhi for consideration of Rs. 48,000/-. A Baibeyana deed was executed on 22.12.86 and Rs. 5,000/- was paid as earnest money to Respondent No. 2. However, no sale deed was executed by Respondent No. 2 although as per agreement he had to execute the same within 3 months. Neither any permission was obtained from the Collector, Patna, for sale of the land nor the Respondent executed the sale deed as per agreement. So, lawyer''s notice was served upon the complainant through which last demand was made on 15.5.88 to execute the sale deed. Then ultimately on 23.5.88, complaint was filed.

The trial court stated in "its judgment that the title suit was also filed by the complainant-Appellant seeking enforcement of the contract where he was free to seek proper relief. The trial court, however, held that there was no offence under Sections 406 and 420 IPC and it was under these circumstances that the trial court recorded the order of acquittal.

To prove the offence under Sections 406 and 420 IPC, the complainant has to prove that he had entrusted any property in favour of the accused. In the instant case complainant had parted with Rs. 5,000/- in favour of the accused-Respondent No. 2 in pursuance of the agreement that latter would be executing a sale deed. So aforesaid money was neither entrustment to the Respondent for a temporary period nor it was obtained by Respondent from complainant under any fraud or deception or inducement. If the Respondent failed to execute the sale deed for certain reasons, there was no intention on his part from the very beginning to misappropriate the earnest money made over to him by the complainant. It is in the complaint petition itself that the Respondent did not obtain permission from the Collector. Patna to execute the sale deed. Moreover, as alleged, the agreement was entered into on 22.12.86 and the complainant made last payment on 15.5.88. So, perhaps, the Respondent might have demanded consideration money in excess of the same that was agreed upon which might have led the party in not abiding by the terms of the agreement. So unless there was presence of fraudulent intention or ill-motive on the part of the accused-Respondent from the very beginning neither Section 420 IPC shall be attracted nor Section 406 IPC. The dispute between the parties could legiti-mately be resolved appropriately through the title suit. Admittedly, a title suit was filed. So when the trial court held that the Respondent had committed no offence u/s 420 and 406 IPC, I do not think the court was perverse in recording its finding upon the evidence on record. Appellant''s lawyer appeared and submitted that the title suit ended into compromise.

In the result, this appeal carries no merit. It is, accordingly, dismissed.