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2004 DIGILAW 302 (PAT)

Anant Bhagwan v. State Of Bihar

2004-03-12

MRIDULA MISHRA

body2004
Judgment 1. This application has been filed by the petitioners for quashing of the order dated 16.12.2002, passed in Jakkanpur P.S. Case No. 107 of 2002 whereby cognizance has. been taken against the petitioners under Sections 406, 420, 467, 468 and 34 of the Indian Penal Code. 2. Petitioner No. 1 is the father of petitioner Nos. 2 and 3. petitioner No. 1 is the proprietor of a general store in the name and style as M/s. Mahalaxmi General Store. In the year 1997 petitioner No. 1 approached the Central Bank of India, Yarpur Branch, for sanction of cash credit limit of Rs. 3,60,000/- was allowed and he has to create equitable mortgage of his immovable property i.e. the residential house in lieu of the sanction amount. Petitioner Nos. 2 and 3 were guarantors of the said cash credit limit. 3. In the year 1999 the petitioners were in need of money for payment of bank dues and as such, he intended to sell a part of his residential house for raising such money. Opposite party No. 2, who is the informant of Jakkanpur P.S. Case No. 107 of 2002, expressed his desire to purchase this property. In pursuance thereof, an agreement was signed in between the parties on 13.9.1999, on payment of Rs. 5,000/- as earnest money. The agreement to sell has been annexed as Annexure-2 to this petition. From Annexure-2 (agreement) it is apparent that an area of 440 sq. ft. along with asbestos roofed property which are being transferred by petitioner No. 1 to opposite party No. 2. This property has fully been described at column-5 of the agreement. In para-1 of the agreement, which is the recital part of agreement, it is stated that the executors have got full title and interest over the property and no other person has any title and interest over the property. Further it is stated in this very paragraph that the executors are in need of money for repayment of bank loan and as such they have decided to sell this property to the purchaser for a consideration of Rs. 3,09,901/-. Para-6 of the agreement recites that the executors have fully assured the purchasers that the property is free from any title dispute and encumbrance or any other financial liability. The iexecutors have got 100% right to sell of the property. 3,09,901/-. Para-6 of the agreement recites that the executors have fully assured the purchasers that the property is free from any title dispute and encumbrance or any other financial liability. The iexecutors have got 100% right to sell of the property. In the agreement it is also mentioned that the purchasers have to make payment of the entire consideration money by 31.10.1999, and in failing to deposit this amount, the sellers have the right to forfeit the earnest money deposited by the purchasers. Annexure-3 is a document which clearly indicates that even after 31.10.1999, transferors (petitioners) have accepted Rs. 1,90,000/- from opposite party No. 2 and have extended the period for execution of the sale: deed and payment of residual amount up to 30.4.2000. 4. Since there was some confusion between the parties and the sale deed could not be executed, the opposite party No. 2 thereafter, filed Title Suit No. 14 of 2002 for specific performance of contract with a prayer for a direction to the defendants to execute and register the sale deed of the suit property. During the pendency of this tide suit, opposite party No. 2 instituted a police case vide Jakkanpur P.S. Case No. 107 of 2002 against the petitioners for the alleged offence under Sections 406, 420, 468 and 34 of the Indian Penal Code. 5. In the FIR it is stated that accused- petitioner No. 1 approached the informant in the month of August, 1999 and informed him that he intended to sell 440 sq. ft. of his residential house since he is in urgent need of money. The house being adjacent to the house of the informant he became ready to purchase it. It was decided that on payment of Rs. 3,10,000/- as consideration money the property will be transferred in the name of the informant. On 13.9.1999, the accused persons executed an agreement in favour of the informant after receiving Rs. 5, 000/- as earnest money. The accused persons thereafter started demanding the residual amount and, as such, on 30.4.2000, the informant paid 1,90,000/-. The entry of which was made in the agreement of sale and the informant was also put in possession of the property in question. The accused persons thereafter, were repeatedly approached by the informant for execution of the sale deed but on one or the other pretext they delayed the matter. The entry of which was made in the agreement of sale and the informant was also put in possession of the property in question. The accused persons thereafter, were repeatedly approached by the informant for execution of the sale deed but on one or the other pretext they delayed the matter. Finally, the informant came to know that petitioner No. 1 has mortgaged this property with a bank and he has taken loan after mortgaging this property. Unless the loan is repaid, the accused-petitioner No. 1 is not in a position to execute the sale deed and register the same. The accused persons have deceived him, the informant, by concealing this fact that the property is not free from financial- liabilities and, as such, they have cheated him and have committed an offence. 6. The counsel appearing for the petitioners has submitted that the cognizance taken for the alleged offence is illegal and continuation of proceeding amounts to an abuse of the process of the Court as prima facie no offence is made out against them considering the allegations made in the FIR. The case is of civil nature and for which the opposite party has filed a Title Suit No. 14 of 2002 for redressal of his grievances. In the facts and circumstances, continuation of criminal proceeding will be an abuse of the process of the Court. 7. Counsel appearing for the opposite party has vehemently opposed the submission made by the counsel for the petitioners. His contention is solely based on the recital made in the agreement where in it has been stated that the property is free from any financial liability, any dispute of title as well as free from all encumbrances. The recital in the agreement clearly indicates that this was the intention of the executor of the agreement to cheat the informant from the very inception. Counsel appearing for the opposite party also placed reliance on 1995 (2) SSC 449, State of T.N. V/s. Thirukkurai Perumal, wherein it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure should be exercised by the High Court sparingly keeping in view the guidelines laid down by the Supreme Court in various decisions. Another decision referred by the counsel appearing by the opposite party is 1985 (2) SCC 370 , Pratibha Rani V/s. Suraj Kumar and another. Another decision referred by the counsel appearing by the opposite party is 1985 (2) SCC 370 , Pratibha Rani V/s. Suraj Kumar and another. The facts of this case is totally different from the facts of the case in hand. I do not think that this case is applicable in the present case. Another decision relied by the counsel for the opposite party is 1993 Cri LJ 3537, State of Bihar and another V/s. K.J.D. Singh, also deals with the inherent power of the High Court under Section 482 of the Code of Criminal Procedure. In this decision it has been held that it is desirable that the power should be exercised only in exceptional cases. 8. Considering the submissions made by the counsel for the petitioners and counsel appearing for the opposite party No. 2 as well as the decisions cited by the counsel for the opposite party No. 2 now I should deal with the present case. In the case of State of Haryana and others V/s. Bhajan Lal and others, 1992 Supp. (1) SCC 335. The Apex Court has laid down the principles relating to exercise of power under Article 226 or the inherent power under Section 482 of the Code of Criminal Procedure. The cases have been categorised wherein such power should be exercised. "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any accompanying the FIR do not disclose a cognizable offence. Justifying an investigation by the Police Officers under Section 156(1) of the Code except under an order an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or 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. (4) Where, the allegations in the FIR do not constitute a cognizable but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR 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. (6) Where there is an express legal bar ongrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings any/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused arid with a view to spite him due to private and personal guide." 9. In Bhajan Lals case, the Apex Court has added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. 10. Now the question arises whether the case of the petitioners comes under any of the category enumerated in the Bhajan Lals case. Whether the allegation made in the FIR taken at its face value and accepted in entirety make out a case. It is apparent that there is no entrustment by opposite party No. 2 to the petitioners for making a prima facie case under Section 406 of the Indian Penal Code. There is no whisper of any offence under Sections 467 and 468 of the Indian Penal Code in the FIR. The main offence alleged is under Section 420 of the Indian Penal Code. 11. There is no whisper of any offence under Sections 467 and 468 of the Indian Penal Code in the FIR. The main offence alleged is under Section 420 of the Indian Penal Code. 11. Cheating is defined under Section 415 of the Indian Penal Code requires (1) deception of any person (2) fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission cause or is likely to cause damage or harm to that person in body, mind reputation or property. 12. In cheating mere breach of contract cannot give rise to criminal prosecution. For constituting an offence of creating fraudulent or dishonest intention must be shown, right at the beginning of the transaction that is the time when the offence is said to have been committed, intention is the gist of the offence. 13. In the present case it has been admitted by the opposite party that after receiving Rs. 1,90,000/- he was put in possession of the property by the accused persons. The recital portion of the agreement also clearly indicates that the executors have intended to sell the property to make repayment of the bank loan. It has also considered that the agreement is the bank loan. In the FIR also it has been admitted by the informant that agreement was executed by him and he has made payment of Rs. 1,90,000/- knowing well that property is being sold only for repayment of bank loan. Accepting the allegation to be true the ingredient of intention of deception on the part of the accused, right at the beginning of the negotiations for the transactions is neither expressly or indirectly suggested. The opposite party No. 2 has alleged that the accused persons did not disclose to him that the property is mortgaged with the bank. Merely this fact do not order to deceive the informant. In such a situation, the continuation of the criminal proceeding against the accused will be an abuse of the process of the Court. The opposite party No. 2 has alleged that the accused persons did not disclose to him that the property is mortgaged with the bank. Merely this fact do not order to deceive the informant. In such a situation, the continuation of the criminal proceeding against the accused will be an abuse of the process of the Court. The case in question comes in the first category of the guidelines laid down by the Supreme Court in the Bhajan Lals case where the allegation made in the FIR or the complaint even if they are taken up from face value and accepted from the entirety do not prima facie constitute any offence or make out a case against the accused. 14. Accordingly, the order dated 16.12.2002 taking cognizance passed in Jakkanpur P.S. Case No. 107 of 2002 is hereby quashed. This application is allowed. This application is disposed of.