IMPORTANT POINT
If from the very initiation intention to cheat is evidenced, criminal complaint would be competent.

JUDGMENT

Altamas Kabir, J. —

1.In this Special Leave Petition, the Petitioner, S.P. Gupta, has challenged the order dated 19th February, 2008, passed by the learned Single Judge of the Delhi High Court in Crl.M.C. No.847 of 2005, dismissing the Petitioner’s application under Section 482 Cr.P.C. for quashing of the Criminal Complaint No.932 of 1992, instituted against the Petitioner and the other co-accused by the Complainant (father of the Respondent) under Section 420 read with Section 120-B of the Indian Penal Code.

2.By an order dated 7th April, 1992, the learned Metropolitan Magistrate, New Delhi, issued summons to the Petitioner, Accused No.1 Smt. Motian Devi Lamba and Accused No.4 Shri G.R. Singhal under Section 420 read with Section 34 IPC. The Revision Petition filed against the said order issuing summons having been dismissed by the Additional Sessions Judge, New Delhi, on 8th February, 2005, the Petitioner moved the Application under Section 482 Cr.P.C. before the High Court.

3.Having regard to the allegations in the complaint, the learned Single Judge of the High Court dismissed the said application upon holding that upon reading the complaint, it was not possible to conclude that not even a prima facie case had been made out against the Petitioner for the offence under Section 420 read with Section 34 IPC. The High Court took note of the fact that having regard to the role attributed to each of the accused which had been noticed by the learned Magistrate, summons had been issued to only three of them and that as far as the Petitioner was concerned, the narration in the complaint showed that he was integral to all the transactions that had taken place between the complainant and the Accused No.1 as he was the constituted attorney of the said accused. The learned Single Judge also observed that whether the Petitioner had acted with dishonest intentions or as to whether he was unaware of the dishonest intentions of the Accused No.1 or that he himself held out no assurance as to the title of the Accused No.1 at the time the agreement for sale was executed or whether he acted beyond the scope of his authority under the power of attorney, were matters that raised triable issues and could only be determined by leading evidence at the trial.

4.Mr. Aman Lekhi, learned Senior Advocate appearing in support of the Special Leave Petition, urged that all the three Courts below had completely misconstrued the material available for the purpose of taking cognizance on the complaint filed by Chat Ram Gupta, the father of the Respondent Ashutosh Gupta. Mr. Lekhi urged that as the holder of the Power of Attorney for the Accused No.1, the Petitioner had merely carried out the instructions given to him from time to time by the Accused No.1 which he was required to follow in keeping with the powers vested in him under the Power of Attorney. Mr. Lekhi urged that the Petitioner was merely an agent appointed to carry out certain directions and that he had no personal knowledge of the status of the properties involved in the transaction.

5.Mr. Lekhi submitted that if the Petitioner had no dishonest intention to defraud or cheat the father of the Respondent, he would not have handed over possession of the property in question to the father of the Respondent. In fact, the Petitioner received the consideration amount on behalf of Accused No.1 and made over the same to her while making over possession of the land to the complainant.

6.Mr. Lekhi submitted that the Petitioner was unaware of the manner in which the property had been acquired by the Accused No.1 or that the same belonged to a Hindu Undivided Family (HUF) and hadno dishonest intention to either defraud or cheat the father of the Respondent and accordingly, at best a suit of a civil nature could have been filed on account of the transaction and the issuance of summons on the complaint filed by the complainant (father of the Respondent) was not justified in the facts of the case.

7.Mr. Lekh