GULFAM GAZI Vs. STATE

JUDGEMENT

(1.) The present case was registered on 16.8.2003, on the basis of a complaint lodged by one Smt. Maya Devi, alleging that the petitioner (Gulfam Gazi) pretending himself to be the owner of the flat bearing No. C-80, DDA Flats, New Seema Puri, Delhi (hereinafter 'the flat'), proposed to sell the same to her for a total sale consideration of Rs. 19.80 lacs; complainant paid a sum of Rs. 3.80 lacs to the petitioner, as earnest money; complainant later on came to know that the petitioner is not the owner of the flat and had no right to sell the same. After inquiry the FIR was registered; during investigation, police recorded the statement of the real owner (Saroj Bala), who has stated that she is the owner of the above noted flat and that petitioner has no right, title or interest therein. Learned Counsel for the State submits that the custodial interrogation of the petitioner is required to recover the cheated amount and to interrogate other persons, if any, involved in the case, to reach the truth.

(2.) Learned Counsel for the petitioner argued to the contrary submitting that peti tioner is a property broker; the original owner had executed an agreement to sell the flat in favour of the petitioner. On the basis of this agreement, petitioner agreed to further sell the flat to the complainant, who has paid a sum of Rs. 3.80 lacs, as the earnest money to him, and on her failure to pay the balance amount the earnest money was forfeited. Learned Counsel argued that it was the condition of the agreement between the petitioner and the complainant that if the property is not handed over to the complainant, double amount is to be paid to the complainant. Thus it is a purely civil transaction. In support of his submission reliance is placed on Ranjit Kumar v. Madan Lal, 1993 (1) Recent Criminal Report, 121, of Punjab and Haryana High Court. Operative portion of the judgment reads as under:

(3.) Learned Counsel also relied upon the Supreme Court decision in Nageshwar Prasad Singh @ Sinha v. Narayan Singh and Anr., AIR 1999 SC 1480, wherein it was held that failure of the complainant to perform his part of the contractual obligation by paying full payment, particularly when the suit for specific performance was pending before Civil Court, the prosecution is liable to be quashed.