R.K. TANGRI Vs. PANKAJ KHETAN AND ANR.

JUDGEMENT

(1.) THE petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short) for quashing of summoning order dated 10th June, 2005 by which the learned trial court has pleased to take cognizance of offence under Section 406/420 of the Indian Penal Code (hereinafter referred to as the Code, for short). The impugned order itself records that the complainant had not made any allegation against Mr. Rohit Tangri and no cognizance and summon has been issued against him.

(2.) I have heard learned Counsel for the parties and also examined the complaint filed by the respondent No. 1. In the complaint, it is stated that the respondent No. 1 has entered into an agreement to sell dated 21st October, 2003 with the petitioner for purchase of property No. C -205, Ground Floor, Anand Vihar, Delhi -92 for Rs. 30,50,000/ - and an amount of Rs. 3,00,000/ - was paid in cash as advance. It is alleged in the complaint that the petitioner did not inform the respondent - complainant that there was a tenant in the property. Subsequently, the respondent had to pay Rs. 47,000/ - to a lawyer to secure eviction of the tenant. It is further stated that the respondent -complainant made repeated telephone calls to the petitioner and expressed readiness and willingness to pay remaining Rs. 27,50,000/ - and the petitioner has failed to execute the sale deed and register the same.

(3.) WITH regard to offence under Section 406 of the Code, again the averments made in the complaint do not disclose satisfaction of the prescribed conditions. If money is paid as advance or as part price for the purchase of certain property then it becomes property of the person to whom it is paid and he cannot be convicted for criminal breach of trust. The respondent -complainant, as per the complaint, had made payment of Rs. 3 lacs to the petitioner as a part of sale consideration or advance. Whether or not the petitioner is entitled to forfeit the said amount, etc. is something, which will have to be examined by the civil court. The civil court will examine, who had committed breach of the said agreement.