Order
1. The respondent, Gopi Singh, filed a criminal complaint against the petitioner herein complaining of an offence under Sections 406 and 420 IPC. According to the complaint, the petitioner has a property in Delhi in respect of which he entered into an agreement to sell in favour of the respondent for a consideration of Rs 4.50 lakhs. An amount of Rs 3.50 lakhs was paid. The balance of Rs 1 lakh was to be paid at the time of registration of sale deed and delivery of possession. Thereafter, the petitioner did not honour the agreement in spite of three legal notices having been given. According to the respondent, the petitioner has thus cheated him.
2. Though the property forming subject-matter of agreement to sell is situated in Delhi, according to the averments made in the complaint the agreement between the parties had taken place at Madhepura and the amount was paid thereat. Hence, the Criminal Court at Madhepura had territorial jurisdiction to try the complaint.
3. After recording the statement of the complainant respondent and three other witnesses examined by him, the trial court vide its order dated 30-5-2003 arrived at a finding that it was a pure and simple case of breach of an agreement to sell creating civil liability between the parties and the appropriate remedy for the respondent was to file a civil suit for specific performance of the agreement and not to file a criminal complaint. The learned Judicial Magistrate, First Class directed the complaint to be dismissed leaving the civil remedy open to the respondent.
4. Feeling aggrieved by the order of the Judicial Magistrate, First Class, the respondent filed a revision in the Court of Session at Madhepura. The learned Sessions Judge has allowed the revision forming an opinion that in spite of the civil remedy being available a criminal prosecution was not barred. The complaint was revived. At that stage the petitioner herein filed a transfer petition under Section 406 of the Code of Criminal Procedure seeking transfer of the criminal case from the Court of Judicial Magistrate, First Class, Madhepura in the State of Bihar to a competent court in New Delhi.
5. On 19-7-2004, after hearing the learned counsel for the petitioner, this Court directed a notice to be issued to the respondent and stayed further proceedings before the trial court. In addition, this Court also directed a notice to be issued to the respondent to show cause why the complaint itself be not directed to be quashed in view of the dispute being of a civil nature. The respondent has appeared and filed a response.
6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent.
7. The petition is allowed. The complaint filed by the respondent in the Court of Judicial Magistrate, First Class, Madhepura and registered as Complaint No. 120-C of 2002 is directed to be quashed. Needless to say, the respondent is at liberty to pursue such other remedy under the civil law as may be available to him.