Final Order 10

Order Details: COPY OF JUDICIAL PROCEEDINGS
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36 CT Cases 646/2024
Suman Saurabh Vs. Sumit Singh
05.12.2025
Present: Sh. Hari Om Giri, Ld. counsel for complainant
alongwith complainant in person.
Order on summoning
1. Arguments already heard on the point of summoning.
2. I have perused the records including the testimony of the
witnesses examined under PSE.
3. Briefly stated, the case of the complainant is as follows:
Complainant is a native of Bihar and had come to Delhi for his
higher studies and started living in rented accommodation in
Laxmi Nagar. In the month of June 2022, complainant had joined
the gym i.e. Delhi Health Club, owned by proposed accused no.1.
That in the month of November 2022, proposed accused no. 1
asked the complainant to vacate his present premises and offered
to rent out his property i.e. the 2nd floor of the gym to the
complainant, as the same was vacant at that time. Proposed
accused no. 1 told complainant that he will have to pay a sum of
Rs. 1,35,000/- as security and Rs.5000/- as monthly rent for the
said property. It was further told to the complainant by proposed
accused no. 1 that he will return the security amount as and when
the complainant vacates his property. Thereafter, as per the
instructions and directions of proposed accused no. 1,
complainant transferred a sum of Rs. 50,000/- through UPI to
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proposed accused no. 1 on 26.11.2022 and Rs. 50,000/- to
proposed accused no. 2 through UPI on 30.11.2022 and lastly an
amount of Rs. 35,000/- was paid to proposed accused no. 1
through UPI on 17.12.2022. That the proposed accused persons
despite receiving the entire amount did not execute any rent
agreement with the complainant and did not give any property on
rent. That the complainant requested the proposed accused
persons to give his money back but, proposed accused persons
only returned a sum of Rs. 5000/-. That the proposed accused
persons despite several requests did not return the money of the
complainant with an intention to grab the same. It is also stated
by the complainant that he is a student and had taken money
from his family to live in rental accommodation. It is also the
case of the complainant that on 10.06.2024, when complainant
again demanded his money from the proposed accused no. 1
Sumit Singh at his gym, the proposed accused used vulgar,
abusive and filthy language with complainant and threatened
him. As per his deposition the proposed accused no. 1 told him
“ Yadi tu yanha dobara mere gym ya ghar aaya apne paise mange
to tujhe jhute case me faswa kar jail bhijwa dunga, or apne gym
ke ladko se wo haal karwaunga teri laash ka bhi pata nahi chal
payega”. Thereafter, on 13.06.2024, complainant made a written
complaint against proposed accused persons to SHO Laxmi
Nagar and higher officials. However, no action was taken.
Hence, the present complaint.
4. In order to prove his case, the complainant examined himself
as CW-1 wherein the complainant inter alia deposed according to
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his complaint and W/Ct. Shalu was examined as CW-2 to prove
the complaints made to SHO and DCP.
5. Ld. counsel for complainant argued as per the allegations
made in the complaint therefore the same is being omitted to
maintain gravity. Ld. Counsel argued that proposed accused
persons be summoned for committing cognizable offences.
6. I have perused the evidence of the witnesses as well as the
documents filed by the complainant.
7. It has been reiterated by the superior courts in a number of
cases that a complaint disclosing civil transaction may also have
a criminal texture. However, it is for the court to see whether a
dispute which is essentially of a civil nature is given a cloak of
criminal offence. In a situation, if civil remedy is available, the
court should not hesitate in preventing the abuse of the process of
the court. Reliance in this regard can be placed on the judgment
of the Hon’ble Apex Court in
“Paramjeet Batra Vs. State of
Uttrakhand & Ors. AIRONLINE 2012 SC 724”.
8. For the purpose of inculpating the proposed accused, the
complainant must bring-forth facts which are credibly
substantiated by evidence - oral or documentary. Even though, at
the stage of summoning, the court must only be propelled by
prima facie proof of facts, yet, if the case of the complainant is
bereft of any evidence much less creditworthy and reliable, the
court must decline summoning. Further, version of the
complainant must entail some elements of criminality in order for
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the court to subject the proposed accused to be tried for an
offence. That said there must be prima facie proof of existence of
both actus reus and mens rea.
9. At the very onset, it is to be noted that the transaction which
is the subject matter of the present complaint, is admittedly an
oral agreement for letting out residential premises. No registered
or even un-registered written agreement, leave and license
agreement or receipt acknowledging the purpose of the monetary
transaction has been adduced by the complainant. The sine qua
non for attracting offence of cheating is deception and dishonest
intention existing at the very time when money/property is
induced. The Hon’ble Supreme Court of India in
“Shailesh
Kumar Singh @ Shailesh R. Singh v. State of Uttar Pradesh and
others Criminal Appeal No. 2963/2025 2025 INSC 869” has
reiterated as follows
:
“…....to constitute an offence of cheating, there
has to be something more than prima facie on
record to indicate that the intention of the
accused was to cheat the complainant right
from the inception”.
10. In the case at hand, no contemporaneous complaint or notice
for recovery of the money paid by the complainant in the year
2022 has been placed on record. In the absence of even a single
piece of evidence (message, notice, eye-witness, etc.,) from
which initial deception can be inferred, the allegations of
cheating remain a bald assertion an a mere possibility which is
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not sufficient for issuing criminal process against the proposed
accused.
11. In the case of
Hridaya Ranjan Prasad Verma And Others v.
State Of Bihar And Another (2004) 4 SSC 168, the Hon’ble
Supreme Court of India held that :
“In determining the question it has to be kept in mind
that the distinction between mere breach of contract
and the offence of cheating is a fine one. It depends
upon the intention of the accused at the time to
inducement which may be judged by his subsequent
conduct but for this subsequent conduct is not the sole
test. Mere breach of contract cannot give rise to
criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of
the transaction, that is the time when the offence is
said to have been committed. Therefore it is the
intention which is the gist of the offence. To hold a
person guilty of cheating it is necessary to show that
he had fraudulent or dishonest intention at the time of
making the promise. From his mere failure to keep up
promise subsequently such a culpable intention right
at the beginning, that is, when he made the promise
cannot be presumed”.
12. In the present case, the money in question was paid as
advance/security for a proposed tenancy. The relationship, if at
all, was of prospective landlord tenant. Failure to return
advance/security is a civil liability for which process of criminal
court cannot be set in motion. In
Shailesh Kumar Singh (Supra)
the Hon’ble Apex Court disapproved the practice of using
criminal proceedings as a substitute for civil remedies observing
that money recovery cannot be enforced through criminal
prosecution where the dispute is essentially civil.
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13. Further, the complainant has also deposed that when he
demanded money from the proposed accused on 10.06.2024, the
proposed accused used filthy language against him and
threatened him. As per the deposition of the complainant, the
only incident of alleged criminal intimidation and abuse took
place in 2024 around one and a half years after the payment of
money in question and only when the complainant went to
demand money. It is no longer
res integra that the mere act of
abusing or threatening does not satisfy the ingredients of offence
of criminal intimidation. Mere allegations of threat without
evidence to showing cause alarm do not constitute criminal
intimidation. Reliance can be placed on
“Manik Taneja Vs. State
of Karnataka (2015) 7 SCC 423” .
14. The summoning of an accused person in a criminal case is a
serious exercise. In the instant case, this court finds that there is
not sufficient material on record to proceed against the proposed
accused persons. Accordingly, this court is of the cosidered
opinion that no offence has been disclosed in the present case and
the complaint filed by the complaint deserves to be dismissed.
15. The present complaint is hereby
dismissed.
16. File be consigned to record room after due compliance.
(Satendra Pal Singh)
Judicial Magistrate First Class-04
East/KKD/Delhi/05.12.2025
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