VISHNU AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) D. C. Srivastava, J. The prayer in this petition under Section 482, Cr. P. C. is to quash the complaint Case No. 399 of 1993 under Sections 420, 418, 423, IPC pending in the Court of Additional Chief Judicial Magistrate, Kasganj, District Etah.

(2.) THE brief facts are that a complaint under the aforesaid sections was filed by Ram Babu Maheshwari- epposite party No. 2, against the petitioner Vishnu Agarwal. THE relevant allegations in the complaint are that the complainant had full faith over the accused and taking under advantage of faith the accused took Rs. 35. 5 lacs from the complainant on the promise that he would execute sale-deed in respect of 4th and 5th floor of the building proposed to be con structed. THE accused represented the com plaint that a partnership firm was formed in the name and style of M/s. R. S. Associates, Lucknow in which one Rohit Agrawal was the other partner besides accused. THE partnership was for construction of a multi- storeyed building over Plot No. 29/6 situated at 18, Rana Pratap Marg, Lucknow. THE accused was in dire need of money. He represented the complainant to advance money and in lieu of such advance, he promised that 4th floor of the proposed building would be sold to him. THE terms and conditions were reduced into writing. THEre was condition for forfeiture of earnest money in case the complainant failed to comply with the condition of sale and cancellation of agreement of sale be sides payment of interest. It was stipulated that possession will be handed over latest in April, 1989 and in case of delay 18% per annum interest will be paid on the deposited money. It was further agreed that the sale deed would be executed and possession would be delivered after completion of the building. It was further represented that title of the firm was good to construct the building and transfer any portion of the building by way of sale, lease etc. and promised to execute sale-deed in favour of the complainant. It was further represented that the building will be managed by the accused and will be let out as agreed to be sold, on rent @ Rs. 6'- per Sq. Ft. This was to be done latest with effect from January, 1989. THE accused took Rs. 35. 5 lacs from the complainant and agreed to deliver pos session of 4th and 5th floor and to execute sale-deed of both the floors by December, 1988 or latest by April, 1989 and in case of default, the accused would pay interest @ Rs. 18/- per annum on the amount deposited by the complainant upto the date of possession. THE complainant was un aware of fraudulent ami dishonest mis representation, mala fides and inducement on the part of the accused. He paid Rs. 35. 5 lacs in instalment upto December, 1988 and obtained receipts. THE accused was ap proached for execution of sale-deed of the two floors but he was avoiding. Suspecting dishonest intention, the complainant made in quarries whereafter he came to know that the firm was not competent to execute even a lease-deed as per terms of the lease-deed dated 31-12-1983 between the original owner and his lessee Kishori Lal Agarwai and Sanjay Agarwa) and also as per sub sequent agreements dated 19-12-1986, 7-1-1987 and 19-1- 1987. In this way it was al leged that the accused fraudulently and dishonestly assured that the sale deed shall be executed by the Firm by December, 1988 or latest by April, 1989. It is further alleged that the accused knew that he was not competent either to execute sale deed or even a lease dead. By subsequent agreement dated 15-5-1990 registered on 13-8-1990 Kishori Lal Agarwai permitted Rohit Agarwal to execute only lease deed of the constructed portion of the multistoreyed building. In this way the firm became entitled only to execute lease deed with effect from 13-8-1990 and not any sale deed. THE repre sentation of the accused for execution of sale deed was thus fraudulent. Finding that the money of the complainant was blocked and he was unable to get a sale-deed ex ecuted, he wanted delivery of possession. Reluctantly under pressure he agreed to enter into agreement for payment of premium and lease deed was executed on 12-10-1990 and possession was delivered to the complainant. Other terms and condi tions were not complied with, consequently the complaint was filed.

(3.) SRI A D. Giri, learned Senior Advo cate, arguing on behalf of the petitioner contended that even if the entire allegations in the complaint are accepted to be correct for the moment no criminal offence is dis closed from the averments made in the com plaint and it is a case of breach of contrac tual obligations hence the proceeding is abuse of process of law. He had relied upon the case of State of Haryana v. Bhajan Lal, A. I. R. 1992 SC 604 and referring to para graph 108 of the said judgment, he is placing reliance upon parameter No. 1 laid down in the aforesaid case contended that since no prima facie case of cheating is made out from the complaint allegation hence the complaint is liable to be quashed. Reliance was also placed upon the case of Hari Prasad Chamana v. Bishun Kumar Surekha and others, 1973 SCC (Crl) 1082 where it was held that when complaint arises out of breach of contractual obligation, no offence of cheating can be said to have been made out and the proceedings on such complaint can be quashed.