VIMAL TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) THIS Application u/s 482 Cr.P.C. has been filed with a prayer to quash the charge sheet submitted in case crime no.1302 of 2008 registered in the Court of Chief Judicial Magistrate, Gautam Budh Nagar as criminal case no.13878 of 2008, State Vs. Vimal Tiwari, under sections 406, 420 IPC, P.S. Sector-20, Noida, Gautam Budh Nagar.

(2.) HEARD Sri Anoop Trivedi, learned counsel for the applicant, learned A.G.A. for the State and Sri Ayub Khan, learned counsel for the complainant - opposite party no.2. F.I.R. in this case was lodged on 25.9.2008 at P.S. Sector-20, Noida, Gautam Budh Nagar on the basis of application u/s 156 (3) Cr.P.C. moved by the complainant Arvind Kumar (opposite party no.2) against the applicant - Vimal Tiwari. It was alleged in the F.I.R. that Plot No.A-82, Sector-80, Noida was allotted to M/s. B.V. Engineers Pvt. Ltd. and accused Vimal Tiwari was the Director of the said Firm. The complainant entered into an agreement for sale of the said Plot on 21.7.2004 for a consideration of Rs.9,11,000.00 and a sum of Rs.20,000.00 in cash and Rs.80,000.00 through cheque no.595057 of Punjab National Bank, Malviya Nagar, New Delhi was paid as earnest money. The complainant entered into contract on behalf of his mother Smt. Sushma Ghai. Part of the remaining payment was to be made by 15.8.2004 and remaining amount was to be paid by the complainant by 31.8.2004 and the accused was to obtain permission for transfer from Noida Authority and to execute the sale deed in favour of mother of the complainant. On 14.8.2004, the accused refused to accept part payment on the ground that the proceedings for permission to transfer were pending. When the accused failed to transfer the property in favour of mother of the complainant, she gave a notice to the accused on 23.8.2004 through counsel to execute the sale deed on 31.8.2004 after receiving the balance sale consideration. The accused did not turn up to execute the sale deed and gave a false reply cancelling the contract and offered to return the money, but neither Plot was transferred nor money was returned. It was also alleged in the F.I.R. that Vimal Tiwari committed breach of trust and fraud with the mother of the complainant and legal action be taken against him. After investigation, charge sheet was submitted by the police.

(3.) IN pursuance of order dated 6.3.2009, a sum of Rs.1,16,400.00 has been deposited by the applicant in cash on 31.3.2009 in the Court of Chief Judicial Magistrate, Gautam Budh Nagar. A photo stat copy of the receipt was filed by learned counsel for the applicant on 1.4.2011. Sri Anoop Trivedi, learned counsel for the applicant submits that it is a case of civil nature and does not amount to cheating or criminal breach of trust. He further submits that no written agreement was executed between the parties and only a receipt was issued. The money was never entrusted to the applicant as deposit, but was paid by way of earnest money or part payment of sale consideration and, therefore, there is no question of any criminal breach of trust. The further submission is that it is nowhere alleged either in the F.I.R. or in the statement of the complainant or his mother that at the time of alleged agreement, the intention of applicant was malafide and, therefore, the ingredients of offence of cheating punishable under section 420 IPC are also not attracted. Learned counsel for the applicant further submitted that the complainant or his mother was never approached by the applicant, but it was the complainant who made a proposal to pay a sum of Rs. 9,11,000.00 for the Plot and paid Rs.20,000.00 in cash and Rs.80,000.00 by cheque as earnest money and no agreement to sell was executed. Subsequently, the complainant started delaying the matter and did not make further payment and, therefore, the applicant offered to return his money back, but the complainant did not turn up to receive money and sent legal notice on 23.8.2004 (annexure no.1 to the application) on behalf of his mother. Since the balance sale consideration was never paid to the applicant, there was no question of executing any sale deed in favour of the complainant or his mother. It was further submitted that opposite party no.2 instituted a Civil Suit in the Court of Civil Judge (S.D.), Gautam Budh Nagar on 28.4.2005 being Original Suit No.286 of 2005 praying for a decree of mandatory injunction directing the applicant - defendant to transfer the disputed Plot in his favour and also praying for a decree of permanent injunction not to transfer the suit property to any other person. Learned counsel for the applicant submitted that there being no registered agreement to sell, no suit for specific performance of the contract could be filed by the complainant or his mother and, therefore, the suit for mandatory injunction directing the applicant - defendant to execute the sale deed was not maintainable at all and was simply a pressure tactic. Even the notice dated 23.8.2004 was not addressed to applicant Vimal Tiwari, but was addressed to M/s. B.V. Engineers Pvt. Ltd.