CRR-2258-2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 284 CRR-2258-2013 (O&M) Date of decision: 22.04.2025 Rajesh Singh Negi ....Petitioner Versus M/s. Sushma Constructions and others ....Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. A.P.S. Guliani, Advocate for the petitioner. Mr. Ajay Ghangas, Advocate for the respondents. HARPREET SINGH BRAR J. (Oral) 1. The present revision petition has been preferred against judgment dated 15.04.2013 passed by the learned Additional Sessions Judge, Faridabad whereby the judgment dated 09.07.2011 passed by the learned Chief Judicial Magistrate, Faridabad dismissing the complaint dated 05.10.2010 under Sections 415, 418, 420, 506 IPC, was upheld. 2. Briefly, the facts, as alleged, are that the petitioner- complainant entered into an agreement to sell dated 29.08.2007 to buy a plot bearing No.36, Block IV, Eros Garden, Charwood Village, Surajkund Road, Faridabad, from respondent No.1, through its authorized attorney- respondent No.2, for a consideration of Rs.37,00,000/-. The purchase was subject to the rights to the first and second floor in order to install a water storage tank and a T.V. antenna. It was also agreed that the petitioner will be provided a staircase. MOHD YAKUB 2025.05.02 18:11 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court at Chandigarh CRR-2258-2013 2 However, in spite of agreeing to the above, the petitioner was not provided access to the terrace. Rather, respondent No.3 issued a letter granting exclusive rights to the terrace to himself. Hence, complaint(supra) was instituted. 3. After assessing all the material available, the learned trial Court did not find sufficient grounds to summon the respondents- accused and the complaint was dismissed vide order dated 09.07.2011 (Annexure P-7). Aggrieved by the same, the petitioner filed an appeal before the learned lower Appellate Court, which was dismissed vide judgment dated 15.04.2013(Annexure P-8). 4. Learned counsel for the petitioner inter alia submits that the attendance of the petitioner was marked on the order dated 09.07.2011 (Annexure P-7) whereas, on the said date, he was admitted to the Dharam Shilla Hospital, seeking treatment for cancer. Further, it was wrongly recorded by the learned trial Court that the petitioner did not examine anyone except himself, while leading preliminary evidence, as the petitioner was asked to not lead any other evidence. Further still, the advertisement issued for sale of the property in question specifically mentioned the terrace. However, both the learned Courts below have failed to appreciate this fact. The petitioner has bought three floors of the said property and paid Rs.8,00,000/- extra particularly for the terrace rights, however, no receipt was issued by the respondents in this regard. Moreover, the agreement dated 29.08.2007 contains a specific clause indicating transfer of rights to the terrace. Lastly, while submitting a report under Section 202 Cr.P.C., the SHO, Police Station Surajkund, MOHD YAKUB 2025.05.02 18:11 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court at Chandigarh CRR-2258-2013 3 has failed to collect any material from the respondents and merely recorded their statements. The respondents have connived with each other to defraud the petitioner and exercised their influence to prohibit him from getting relief. 5. Per contra learned counsel for the respondents submits that the complaint(supra) has merely been filed to harass the respondents as the dispute is purely civil in nature. Moreover, on analyzing the matter, both the learned Courts below did not find the need to summon the respondents. As such, interference by this Court is not called for. 6. Having heard learned counsel for the parties and after perusing the record of the case it transpires that the parties entered into an agreement to sell dated 29.08.2007 (Annexure P-1) wherein it has been clearly stipulated that the sale pertains to the ground floor of the property. Further, para 8 of the same states that the exclusive rights to the terrace of the second floor subject to the rights of the allottees of the ground floor and the first floor. 7. The factual matrix makes it evident that the issue pertains to a civil dispute as, if at all, it would amount to only a breach of agreement. Nothing available on the record indicates a premeditated intention to cheat the petitioner. A two Judge bench of the Hon’ble Supreme Court in Mariam Fasihuddin and another vs. State by Adugodi Polcie Station and another 2024 AIR SC 801, speaking through Justice Surya Kant, opined as follows: “11. It is thus paramount that in order to attract the provisions of Section 420 MOHD YAKUB 2025.05.02 18:11 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court at Chandigarh CRR-2258-2013 4 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e. (i) the deception of any person, (ii) fraudulently or dishonestly inducing that perso n to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no gainsaid that for the offence of cheating, fraudulent and dishonest deliver any property to any person, and dishonest intention must exist from the inception when the promise or representation was made.” (emphasis added) Further, a two Judge bench of the Hon’ble Supreme Court in Arun Bhandhari vs. State of Uttar Pradesh (2013) 2 SCC 693, speaking through Justice Dipak Misra, made the following observations: “20. In G.V. Rao v. L.H.V. Prasad and others, 2000(2) RCR (Criminal) 290: (2000)3 SCC 693 this Court has held thus: "7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 Supreme Court 575 a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 Supreme Court 724 that in order to MOHD YAKUB 2025.05.02 18:11 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court at Chandigarh CRR-2258-2013 5 constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered." (emphasis added) 8. Recently, the same principle has been reiterated by a two Judge bench of the Hon’ble Supreme Court in C. Subbiah @ Kadambur Jayarajand others vs. The Superintendent of Police and others 2024 AIR SC 2633 wherein, speaking through Justice Sandeep Mehta, the following was held: “38. It is thus clear that from the complaint, there is no such allegation therein which can persuade the Court to hold that the intention of the accused appellants was to defraud the complainant right from the inception of the transactions. The accused appellants have unquestionably, passed on some plots as well as part profits from the land deals to the complainant but the dispute is regarding the quantification of profits and full satisfaction of the share claimed by the complainant proportional to the investments made by him.” (emphasis added) 9. In view of the discussion above, this Court does not find any reasons to interfere with the matter at hand. The petitioner may pursue the civil remedies available to him, if he so chooses. Accordingly, the present petition is dismissed. 10. Pending miscellaneous application(s), if any, shall also stand disposed of. (HARPREET SINGH BRAR) JUDGE 22.04.2025 yakub Whether speaking/reasoned: Yes/No Whether reportable: Yes/No MOHD YAKUB 2025.05.02 18:11 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court at Chandigarh