J. P. Sinha v. State of Bihar — 1996 DIGILAW 624 (PAT)

JUDGMENT Naresh Kumar Sinha, J. In this application u/s. 482 of the Code of Criminal Procedure (hereinafter the 'Code') the petitioners seek quashing of their criminal prosecution in a complaint case including the order dated 18.4.95 passed by the learned Chief Judicial Magistrate taking cognizance of the offences u/ss. 420 and 120-B of the Indian Penal Code (hereinafter 'I.P.C.') and summoning the petitioners for trial. 2. Only such of the facts as are relevant may be recounted Dr. J.P. Sinha (petitioner no 1) is a retired Professor and Head of the Department of Radiology and is presently the Director, X-ray Institute, Patna. Ram Sewak Singh (petitioner no. 2) is a retired Director of Coal India Limited and Smt. Shashi Singh (Petitioner no. 3) and Smt. Sujata Singh (petitioner no. 4) are his two married daughters and all three reside in New Delhi. Dr. Umesh Prasad Singh (O.P. No. 2) is the Administrator of Chikitsa Nursing Home, Patna. O.P. no. 2 filed a complaint case no. 283(C) of 1995 on 17.4.95 alleging that on 3rd October, 1993 petitioner no. 1 dropped in his office and disclosed that petitioner no. 2 and his two daughters petitioner nos. 3 and 4 intended to sell their land measuring 8 kathas and the house standing over it situated at Srikrishnapuri, Patna, as also one flat situated at Basant Kunj, New Delhi, allotted by the Delhi Development Authority. On enquiry petitioner no. 1 told the complainant-O.P. no. 2 that the only son of petitioner no. 1 had already settled in America and hence he along with his daughters intended to settle there after disposing of their property in India. On learning that the approximate price of the property was Rs. 40,00,000/- (forty lacs), O.P. no. 2 told petitioner no. 1 that he was not interested in purchasing the property whereupon petitioner no. 1 went on persuading him and suggested that he should give second thoughts to the proposal. Petitioner no. 1 allegedly continued to presuade O.P. no. 2 on phone in between 3.10.93 to 9.10.93. It is alleged that on the morning of 10th October, 1993 all the four petitioners visited the office of O.P. no. 2 and petitioner no. 1 introduced the other petitioners to him. They disclosed to O.P. no. 2 that out of 8 Kathas of land at Patna 4 kathas belonged to petitioner no. It is alleged that on the morning of 10th October, 1993 all the four petitioners visited the office of O.P. no. 2 and petitioner no. 1 introduced the other petitioners to him. They disclosed to O.P. no. 2 that out of 8 Kathas of land at Patna 4 kathas belonged to petitioner no. 2 and the remaining 4 kathas to his two daughters and that the flat at Basant Kunj, New Delhi, belonged to petitioner no. 3. Petitioner nos. 2, 3 and 4 narrated the urgency to dispose of the property as they had made up their mind to settle in America. O.P. no. 2 finally agreed to purchase the abovementioned properties for a consideration of Rs. 30,25,000/- with vacant possession prior to the execution of the sale deed O.P. no. 2 was informed that the house at Patna was occupied by the Bihar State University Service Commission as a tenant and the period of tenancy was to expire in December, 1993 whereafter on the vacation of the land and house its possession would be handed over to him. It is further alleged that a deed of agreement for the same was executed on 4th November, 1993 and according to the agreement the opposite party paid to petitioner no. 2 Rs. 7,50,000/- only in cash and gave a demand draft of Rs. 2,00,000/- and a cheque for Rs. 50,000/-. A further amount of Rs. 5,00,000/- was given by the opposite party to petitioner no. 2 on 15.12.93 by two cheques one for Rs. 1,50,000/- and another for Rs. 1,00,000/- and Rs. 2,50,000/- only in cash. 3. O.P no. 2 alleged that though he had been persuaded to part with total sum of Rs. 15,00,000/- the sale deed was not executed by 30th April, 1994 nor vacant possession of the house at S.K. Puri at Patna and at Basant Kunj in New Delhi was handed over to him. O.P. no. 2 further alleged that petitioner no. 2 instead of getting the house at Patna vacated by the University Service Commission extended the terms of its lease and petitioner nos. 3 and 4 who were the owners of the flat at New Delhi did not execute any power of attorney in favour of petitioner no. 2 who executed the deed of agreement. When O.P. no. 2 did not receive any message from petitioner nos. 3 and 4 who were the owners of the flat at New Delhi did not execute any power of attorney in favour of petitioner no. 2 who executed the deed of agreement. When O.P. no. 2 did not receive any message from petitioner nos. 1 and 2 he wrote a letter on 4.3.94 to petitioner no. 2 and requested him to execute the sale deed by 30.4.94 as per the deed of agreement. When he did not receive any reply from petitioner no. 2 he contacted petitioner no. 1 on telephone who evaded reply on the ground of his failure to contact petitioner no. 2. O.P. no. 2 suspecting some fraud insisted petitioner no. 1 for a copy of the power of attorney dated 27.10.93 executed by petitioner nos. 3 and 4 in favour of petitioner no. 2. petitioner no. 1 sent a photo-stat copy of the power of attorney on 30.4.94 and O.P. no. 2 was surprised to find that petitioner nos. 3 and 4 had not executed any power of attorney in respect of the flat at Delhi. O.P. no. 2 claims to have been thereby cheated as petitioner no.2 had not produced the power of attorney on 4.11.93 and had given a false excuse that he forgot to bring it. O.P. no. 2 immediately contacted petitioner no. 1 alleging that he had been cheated. Thereupon petitioner no. 2 sent a letter on 27.4.94 annexing an ante dated letter dated 17.4.94 denying that the agreement included the Delhi property and expressed his intention to cancel the deed of agreement. When O.P. no. 2 informed petitioner no. 1 about all this petitioner no. 1 became nervous and promised to call petitioner no. 2 to Patna. O.P. no. 2 remained in contact with petitioner no. 1 who assured him that he had had a talk with petitioner no. 2 and petitioner no. 2 had assured him to complete the work after the marriage in his family. O.P. no. 2 thus alleged that the petitioners entered into a criminal conspiracy to cheat him and fraudulently and dishonestly induced him to part with Rs. 15,00,000/- in between 3.10.93 to 15.12.93. A true copy of the complaint petition together with its enclosures including the agreement for sale has been filed as Annexure-1 to this application. 4. The petitioners claim that opposite party had made several false and. 15,00,000/- in between 3.10.93 to 15.12.93. A true copy of the complaint petition together with its enclosures including the agreement for sale has been filed as Annexure-1 to this application. 4. The petitioners claim that opposite party had made several false and. baseless statements and had suppressed many material facts. It has been categorically stated that the agreement was only for the sale of the house and land in S.K. Puri, Patna and there was no agreement of any kind for sale of the flat in Basant Kunj, Delhi. The opposite party, it is said, expressed his difficulty in arranging for the funds for getting the deed of sale executed and registered by 30.4.94 and also conveyed his intention to cancel the agreement and forget all about it if the amount of advance given to him was refunded. The petitioners were also willing to return the amount of Rs. 15,00,000/- to the opposite party even on his failure in fulfilling the terms and conditions of the alleged agreement for sale. They have also given details of the attempts made by them to return the amount at the house of an advocate on 30.4.94. Arrangement for refunding the amount of Rs. 5,00,000/- in cash and the rest by two bankers cheques of Rs. 5,00,000/- each photo copy of which are annexed as Annexures 2 and 2A as suggested by the opposite party had been made but on account of some objection concerning tax problem the refund of the amount could not take place on that day. A number of circumstances have also been mentioned in support of the petitioners contention that the copy of the agreement filed by opposite party was a fabricated one as its first two pages have been changed. It is alleged that a date was fixed by the parties for refunding the amount of Rs. 15,00,000/-. The deed of cancellation was also to be executed clearly mentioning that the agreement for sale was only in respect of the house and land at Patna. A photostat copy of the prepared draft of cancellation deed has been filed as Annexure-3. A photostat copy of the letter dated 2.11.93 addressed by petitioner no. 2 to the Chairman, Bihar State University Service Commission has been filed requesting him to vacate the premises by 31st December, 93. It is alleged that opposite party duped petitioner no. A photostat copy of the prepared draft of cancellation deed has been filed as Annexure-3. A photostat copy of the letter dated 2.11.93 addressed by petitioner no. 2 to the Chairman, Bihar State University Service Commission has been filed requesting him to vacate the premises by 31st December, 93. It is alleged that opposite party duped petitioner no. 2 and took away the title deeds of the house. On coming to know that O.P no. 2 was making efforts to take unauthorised possession of the house, petitioner no. 2 met the Superintendent of Police, Patna, on 26.3.94 and handed over a detailed report requesting him to take action u/s. 420 IPC. He also submitted a written report in the matter to the Inspector of Police on the basis of which station diary entry no. 207 dated 6.4.94 was recorded. When opposite party tried to intimidate the family members of petitioner no. 2 at New Delhi, petitioner no. 2 also lodged information at Basant Kunj police station which registered case no. 91/94 dated 15.4.94 u/s. 506/34 IPC. 5. It is further claimed that after the failure of the talks between petitioner no. 2 and opposite party held on 30.4.94, petitioner no. 2 wrote a letter to opposite party on 4.5.94 in which he specifically stated that he was prepared to sell the house and property in north Sri Krishnapuri, Patna, on receipt of the balance amount of consideration agreed upon. But all his efforts to accommodate the opposite party proved fruitless. Petitioner no. 2 after affirming that he never had any dishonest intention offered to refund the advance which he had received and blamed the opposite party for non-execution of the sale deed. It is claimed that the complaint contains no allegation of facts making out any offence against petitioner no. 1 who at best was a witness to the talks between opposite party and petitioner no. 2 and petitioner nos. 3 and 4 who were adult married daughters of petitioner no. 2 never had any talk with opposite party nor had they received any money. It is claimed that the allegations in the complaint petition at best makes out a civil dispute and the learned Chief Judicial Magistrate committed a grave error in not applying his judicial mind before taking cognizance. In a supplementary affidavit it was stated that petitioner no. 2 never had any talk with opposite party nor had they received any money. It is claimed that the allegations in the complaint petition at best makes out a civil dispute and the learned Chief Judicial Magistrate committed a grave error in not applying his judicial mind before taking cognizance. In a supplementary affidavit it was stated that petitioner no. 3 had filed T.S. No. 2630/94 in the Delhi High Court against O.P No. 2 and four others for permanent injunction as also a mandatory injunction for production and cancellation of agreement to sale which is the subject matter of dispute in the present application. It is stated that the fact that O.P No. 2-complainant had forged the deed of agreement would be adjudicated upon in the aforesaid suit. The petitioners in the supplementary affidavit again reiterated that they were ready to return the advance amount of the complainant which showed their good gesture and pure intention. 6. Sri Braj Kishore Prasad, learned counsel, appearing for the petitioners argued that the dispute between the parties centres round the fact whether the agreement for sale included both the properties at Patna or Delhi as claimed by O.P no. 2 or was confined to Patna property as per the case of the petitioners. In that connection he referred to the contents of the agreement for sale which was annexed with the complaint petition and copy of which had been filed and is on the record. He, therefore, argued that the dispute between the parties was in the nature of a civil dispute and not one which could constitute any criminal offence. Mr. Prasad referred to that part of the agreement which provided that if the vendors which obviously refers to the petitioners except petitioner no. 1 fails in executing the sale deeds in stipulated time i.e. on or before 30.4.94, the vendees which obviously refers to O.P. no. 2 and members of his family will have full right to get the above land registered in their names after depositing the full balance amount in the court and shall be entitled to damages. Mr. Prasad also referred to exchange of correspondence in between the parties clearly suggesting such a dispute of civil nature and wholly inconsistent with the case of the complainant-O.P. no. 2 that the petitioners had in pursuance of a criminal conspiracy fraudulently and dishonestly induced him to part with Rs. Mr. Prasad also referred to exchange of correspondence in between the parties clearly suggesting such a dispute of civil nature and wholly inconsistent with the case of the complainant-O.P. no. 2 that the petitioners had in pursuance of a criminal conspiracy fraudulently and dishonestly induced him to part with Rs. 15,00,000/-. 7. Sri Prakash Pandey learned counsel appearing for O.P. no. 2 contended that the court should look to the allegations made in the complaint petition in their entirety and on their face value which clearly disclosed commission of the criminal offences. Sri Pandey in course of his argument, however, did concede that the case of petitioner no. 1 could stand on a different footing as he was not the owner of the property and was not a signatory to the agreement for sale. This is perhaps on account of the statements contained in the complaint petition that the property belonged to petitioners other than petitioner no. 1 and for most of the part petitioner no. 1 who was not personally interested in the sale or purchase of the property had acted more or less as a middle man in between O.P. no. 2 and petitioner no. 2 who were known to him from before. There are statements in the complaint petition to the aforesaid effect. In any view of the matter except for the fact that O.P. no. 2 alleged that accused persons had entered into a criminal conspiracy which would include petitioner no. 1 also he did not disclose any factual basis in so far petitioner no.1 was concerned save and except that petitioner no.1 had played a leading role in persuading O.P. no.2 to agree to purchase the property and was instrumental in bringing petitioner no.2 and O.P. no.2 together. 8. The allegations in the complaint petition are mostly confined to petitioner no.2 and his two daughters petitioner nos. 3 and 4. The agreement for sale was signed by petitioner no. 2 alone both on his own behalf and on behalf of his daughters. This is evident from the copy of the agreement for sale filed along with the complaint petition. According to complaint petition the amount of Rs. 15,00,000/- in two different instalments had been paid to petitioner no.2. The agreement for sale was signed by petitioner no. 2 alone both on his own behalf and on behalf of his daughters. This is evident from the copy of the agreement for sale filed along with the complaint petition. According to complaint petition the amount of Rs. 15,00,000/- in two different instalments had been paid to petitioner no.2. The complaint petition itself mentions the fact that on the day the agreement for sale was executed petitioner no.2 did not produce any power of attorney executed in his favour by his two daughters petitioner nos. 3 and 4 on the pretext that he had forgotten to bring it. There is also nothing to indicate that any part of the payment of Rs. 15,00,000/- to petitioner no.2 by O.P. no.2 was made to the knowledge of petitioner nos. 3 and 4 or they received any part of the amount from their father petitioner no. 2. At most of the places O.P. no.2 in his complaint petition had made allegations against petitioner no.2 alone alleging that he had no intention to get the house at Patna vacated by the Bihar State University Service Commission and that contrary to the promise made by him (petitioner no.2) he had extended the lease of the said house. Both petitioner nos. 3 and 4 being married daughters of petitioner no. 2 and there being nothing specific in the complaint petition it could not even be reasonably suggested that petitioner no.2 was acting under their influence. The allegation that the power' of attorney executed by petitioner nos. 3 and 4 in favour of petitioner no. 2 was not produced at the time of execution of the agreement for sale as already noticed earlier, on a false pretext, was also confined to petitioner no. 2 who gave the excuse that he had forgotten to bring it. The complainant himself had admitted that the power of attorney executed by petitioner nos. 3 and 4 copy of which he had occasion to see only later was not in respect of Delhi property. 9. In course of argument a decision of the Supreme Court in the State of Haryana vs. Bhajan Lal (A.I.R. 1992 S.C. 604) was referred to. By the said judgment certain categories of cases were specified in which the High Court may in its exercise of power under Art. 226 of the Constitution of India or u/s. 482 Cr. 9. In course of argument a decision of the Supreme Court in the State of Haryana vs. Bhajan Lal (A.I.R. 1992 S.C. 604) was referred to. By the said judgment certain categories of cases were specified in which the High Court may in its exercise of power under Art. 226 of the Constitution of India or u/s. 482 Cr. PC. interfere in the proceeding relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Supreme Court, however, cautioned that the power should be exercised sparingly and that too in the rarest of rare cases. One such category of cases indicated in the said judgment is where the uncontroverted allegations made in the F.I.R. or the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Another category of cases mentioned therein is where the allegation made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Mr. Prasad argued that the case of the complainant would be included in one or the other category of cases referred to above. Mr. Prasad in support of his contention that the allegations made in the complaint petition at best disclosed a civil dispute between the parties referred to the decision of the Apex court in Hari Prasad Chamaria vs. Bishun Kumar Surekha and others (A.I.R. 1974 S.C. 301). The decision was rendered on an appeal by special leave filed against the judgment of this very court whereby this Court had quashed the proceedings against the respondents pending in the trial court. In that case the trial court had taken cognizance u/s. 420 IPC and had directed issue of process against the respondents. The respondents thereafter approached the High Court which took the view that the case of the appellant was based upon contract and mere breach of contract could not give rise to criminal prosecution. The court in course of para 4 of the judgment had this to say, to quote:- "4.........For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. The court in course of para 4 of the judgment had this to say, to quote:- "4.........For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420, Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000 by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to him at or before the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this would not be sufficient to fasten criminal liability on the respondents for the offence of cheating." 10. Another decision of the Supreme court referred to by Mr. Prasad is Madhavrao Jiwaji Rao Scindia and another vs. Sambhajirao Chandrojirao Angre and others (A.I.R. 1988 S.C. 709) wherein it was observed that the legal position is well settled that when a prosecution at initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. Mr. Mr. Prasad led particular emphasis to the observations made in course of the said judgment that it is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue, and the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. The court in course of the judgment also observed that a case of breach of trust is both a civil wrong and a criminal offence, and there could be certain situations where it would predominantly be a civil wrong and mayor may not amount to a criminal offence. The court then proceeded to hold that the case in question was one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences were wanting. Mr. Prasad contended that the facts stated in the complaint of O.P no.2 only disclose at best a civil wrong and did not amount to a criminal offence either u/s. 120-B or Section 420 IPC for which cognizance had been taken. 11. The allegations contained in the complaint have been summarised in paragraphs 7 and 8 of this judgment. As already mentioned they are mostly confined to petitioner no.2. There is nothing to indicate that petitioner nos.1, 3 and 4 were party to a criminal conspiracy along with petitioner no.2 in deceiving O.P no.2 and thereby dishonestly inducing him to deliver the amount of Rs. 15,00,000/- to petitioner no.2. The next question is whether the allegations made against petitioner no.2 only disclosed a civil wrong actionable in a civil court of competent jurisdiction and did not amount to a criminal offence. There is no authority for any proposition in law that if certain facts constitute a civil wrong, they shall in no case amount to a criminal offence. The next question is whether the allegations made against petitioner no.2 only disclosed a civil wrong actionable in a civil court of competent jurisdiction and did not amount to a criminal offence. There is no authority for any proposition in law that if certain facts constitute a civil wrong, they shall in no case amount to a criminal offence. It is true that the complaint must disclose some material to show that petitioner no.2 had dishonest or fraudulent intention at the time he made O.P no.2 to part with the amount. However, such fraudulent or dishonest intention could be inferred from the circumstances of the case. It can be argued that the allegations made against petitioner no.2 mayor may not amount to a criminal offence. In my opinion in such a situation it would not be proper for this court to invoke its inherent powers to quash the prosecution at the initial stage. In such a situation the doors of the criminal court should not be shut down on the reasoning that the allegations perhaps may not amount to disclosing of a criminal offence and it was out and out a civil wrong. This view could be in consonance with the view of the Apex court in Bhajan Lal's case (supra) that the power under Art. 226 of the Constitution or u/s. 482 Cr.P.C. to interfere in proceedings relating to cognizable offences to prevent the abuse of any court or otherwise to secure the ends of justice should be exercised sparingly and that too in rarest of rare cases. 12. Thus for the reasons mentioned above I am of the view that no ingredient of criminal conspiracy punishable u/s. 120-B IPC was disclosed in the complaint and the order taking cognizance for the said offence against the petitioners is an abuse of the process of the court and deserves to be quashed. In so far the offence u/s. 420 IPC is concerned for which cognizance has also been taken the complaint does not contain the necessary ingredients constituting the offence against petitioner nos. 1, 3 and 4 and the order of cognizance and issue of summons against them is also an abuse of the process of the court and deserves to be quashed. 1, 3 and 4 and the order of cognizance and issue of summons against them is also an abuse of the process of the court and deserves to be quashed. The same does not hold true in respect of petitioner no.2 who on the allegations made in the complaint is alleged to have cheated O.P. no.2 and had thereby dishonestly induced him to deliver Rs. 15,00,000/- to him. 13. Thus this application is allowed only to the extent that the impugned order taking cognizance as also the criminal prosecution of petitioner nos. 1, 3 and 4 are quashed. In so far as petitioner no.2 is concerned, the order taking cognizance u/s. 120-8 IPC against him is alone quashed and not his criminal prosecution for the offence u/s. 420 IPC.