Pat HC | Act of entering into an agreement to sell with another vendee, prior to impugned agreement would not be enough to prove fraudulent and dishonest intention under S. 415 IPC

Patna High Court: Birendra Kumar, J. allowed a petition since the entire factual position of the case, made out a case of a civil dispute only and because of that the criminal proceedings were to be quashed.

An application was filed under Section 482 of the Code of Criminal Procedure for quashing of the order of summoning the petitioner to face trial for the offence under Section 420 of the Penal Code. The petitioner challenged this on the grounds that a bare perusal of the complaint petition would show that the case was purely of civil dispute and the complainant had deliberately attempted to give it a color of a criminal offence.

The complainant had entered into an agreement with the petitioner to purchase plots. The petitioner received the total consideration money and gave the receipt of the same and promised to execute sale deed after the marriage of her daughter. Thereafter, petitioner went to Delhi and when the complainant tried to contact the petitioner she tried to evade execution of the sale deed. Ultimately, a legal notice was sent to the petitioner. The petitioner informed the complainant that the plot was also the subject matter of the suit for partition, wherein half share of the petitioner was admitted.

The petitioner had filed a petition before the trial court in the partition suit aforesaid, praying therein for permission to sell the suit property and permission to execute sale deed but the trial judge restrained both the parties to not to transfer the suit land without permission of the court. The said partition suit was dismissed later for non-prosecution and the request of the opposite party to execute the sale deed was finally turned down by the petitioner. Hence, the counsel for the complainant alleged that even after no judicial order was in existence, restraining the parties to the suit from executing the sale deed, the petitioner did not execute the sale deed, as such committed criminal breach of trust and misappropriation. In furtherance to such fraudulent behavior, the petitioner entered into an agreement dated to transfer the aforesaid plot in favor of Arvind Kumar, her cousin brother which was proof of her fraudulent and dishonest intention while entering into an agreement with the complainant.

The counsel for the petitioner argued that from the narration of the facts, it was evident that the act lacked the culpable intention of the petitioner at the time of making an initial promise and even thereafter. Hence, offence under Section 415 of the Indian Penal Code was apparently not made out.

The Court held that an agreement to sale did not create a title in favor of the intended purchaser, nor it extinguishes the title of the intended vendor, rather it created a right enforceable in law at the instance of the aggrieved party. It was not in dispute that the opposite party had not brought any proceeding to enforce his civil right. The most important ingredient to prove the charge under Section 420 of the Penal Code is the culpable intention at the time of making an initial promise. The culpable intention of the petitioner was evidently not there for the reason that the petitioner has got title over plot No. 3388, which has an area of 84 Kathas. Thus, only for the reason, that petitioner had entered into an agreement to sale with some other prior to the agreement with the complainant would not make the petitioner guilty of having a dishonest and fraudulent intention at the inception. Moreover, the petitioner fairly admitted the agreement to sell with the complainant and the factum of partition suit brought by her sister in the same year as well as judicial order of the court, prohibiting the parties from transferring the suit property. Therefore, judicial order was there in the way of performance of the agreement by the petitioner, till the dismissal of the suit in the year, 2011. Hence, the same cannot be allowed to be given a color of criminal prosecution, which would apparently result in a miscarriage of justice. Hence,

In view of the above-noted facts, the instant petition was allowed and the impugned order and entire criminal proceeding stood quashed.[Meena Sahi v. State of Bihar, 2019 SCC OnLine Pat 1649, decided on 23-09-2019]

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