NARESH AMAR Vs. STATE

JUDGEMENT

(1.) BY this petition under Section 482 Cr.P.C., petitioner has prayed that the summoning order dated 24 th July, 2009 passed by Chief Metropolitan Magistrate, Delhi (CMM) as well as complaint titled as "Ron Bijlani vs. Naresh Amar and another", be quashed.

(2.) BRIEFLY stated, facts of the case are that the respondent No. 2 filed a complaint against the petitioner and his wife Smt. Vineeta Amar before the CMM praying therein that they be summoned, tried and punished for the offences under Sections 403/406/420/506/34 and 120 -B IPC. After recording pre - summoning evidence, CMM has held that a prima facie case was made out against the petitioner for having committed the offences punishable under Sections 406/506 IPC. As regards Smt. Vineeta Amar is concerned, it was held that no case was made out against her for her summoning.

(3.) CASE of the petitioner is that he had extended a friendly loan of Rs.13 lacs to respondent No. 2. To secure the loan respondent no. 2 had handed over possession of his Flat No. 236, Supreme Enclave, Mayur Vihar, Phase­I, Delhi­110091 to the petitioner with the assurance that he would not demand its possession till the loan amount was not paid. In order to avoid re -payment of Rs.13 lacs to the petitioner respondent has filed present complaint on flimsy grounds. Allegations leveled in the complaint clearly show that disputes between the parties are purely of civil nature. Non -execution of documents pursuant to an oral agreement, at best, is case of breach of contract entailing civil liability and appropriate remedy of that is to file a suit for Specific Performance and not the criminal complaint. Learned counsel has contended that the complaint is nothing but abuse of process of court and is liable to be quashed. Reliance has been placed on Murari Lal Gupta vs. Gopi Singh, (2005) 13 SCC 699. It is further contended that the averments made in the complaint were false to the knowledge of the respondent No. 2. Respondent No. 2 had filed a suit for recovery in the court of Additional District Judge, Delhi with the same allegations. Ex -parte decree has been passed in the said suit to the tune of Rs.7,69,835/ -. Petitioner has already taken steps to get the ex -parte decree set aside. Even otherwise, in the said suit, story of payment of cost of Rs.3 lacs and cheque of US $ 597.51 has been disbelieved, thus, falsifies the averment in the complaint. He further contends that in a civil suit pending between respondent No. 2 and his wife, respondent No. 2 has filed affidavit by way of evidence, wherein he has taken altogether a different stand. It was stated by him in the affidavit that US $ 16,000/ - was given by him to a friend which has not been returned to him. This shows that allegations leveled by the respondent No. 2 in the complaint were false and on the basis thereof no prosecution can continue. In nutshell, case of the petitioner is that the complaint has been filed with an ulterior motive to harass the petitioner and its continuance would amount to abuse of process of court.