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2008 DIGILAW 762 (JHR)

Sangeeta Devi v. State of Jharkhand

2008-07-18

D.G.R.PATNAIK

body2008
Order The instant Revision application is directed against the order dated 15.9.2005 passed by the learned court below, whereby the prayer of the petitioners under Section 239 of the Cr.P.C. for their discharge from the case was rejected. 2. The case against the petitioners was registered on the basis of an F.I.R. lodged by the informant Smt. Bilia Mahtain at Dhansar Police Station. The allegations ,as contained in the F.I.R. are that the informant is the owner of a piece of land under Khata Nos. 24 and 25 which constitutes her 1/5th share inherited from her father The petitioner no. 1 is the niece of the informant while the petitioner no. 2 is the husband of the petitioner no. 1. Being closely related, both the petitioners had expressed their desire to purchase the informant's land to which she agreed. The accused persons, namely the present petitioners however, persuaded the old lady to accompany them to Kolkata for execution and registration of a sale deed on the plea that the Registration of the sale deed at Kolkata can be done on a much lesser fee than what was chargeable at Dhanbad. The informant believing the accused persons, accompanied them to Kolkata along with one Mangal Rewani and on 16.10.1993, the accused persons got a deed executed by the informant and the deed, was registered at Kolkata. However, the accused persons did not pay the settled consideration amount promptly and assured the informant that they will pay the money on their return to the village. Thereafter, in spite of repeated requests and demands made by the informant, the accused persons did not pay the consideration amount. After about 10 years in the month of September, 2003, the petitioner no.1 proposed to sell the informant's land to a prospective purchaser, namely, Nand Lal Gupta. Before entering into a contract of sale, the prospective purchaser approached the informant on 15.9.2003 in order to verify as to whether the informant had legally transferred the proposed land to the petitioner no. 1 and he produced a photo copy of a deed, which was represented by the petitioners before him as the deed of transfer executed by the informant in their favour. The informant got the document read over and explained to her by the deed writer of Dhanbad Registry Office and to her dismay, she may found that it was not deed of sale. The informant got the document read over and explained to her by the deed writer of Dhanbad Registry Office and to her dismay, she may found that it was not deed of sale. Rather it was a deed of gift bearing Registration No. 15226 dated 16.10.1993 indicating, therein, that the informant has gifted her property to the petitioner no. 1. Being confirmed that she was defrauded by the petitioner, the informant issued legal notice to them but the accused persons did not respond to the notice. In absence of any response, the informant lodged a complaint before the Court of the Chief Judicial Magistrate, Dhanbad vide C.P. Case No. 1456 of 2003. The complaint was referred to the Police for registering of case and investigation, where after it was registered as Dhansar P.S. Case No. 713 of 2003 on 29.12.2003. 3. After concluding the investigation, the Police submitted charge-sheet recommending trial of the accused petitioners for the offences under Sections 420, 465, 468, 469, 471 and 120B of the I.P.C. After cognizance of the offences being taken by the Magistrate, the case was transferred to the Court of the Judicial Magistrate for trial. The transferee court proceeded to commence trial but at the stage of commencement, the petitioners filed their application under Section 239 of the Cr.P.C., praying for their discharge. However, by the impugned order, the learned Judicial Magistrate rejected the prayer holding that from the materials on record, there appears a prima facie case sufficient enough to proceed against the accused persons with the trial by framing charge against them for the offences under Sections 420 and 120B of the I.P.C. The instant Revision Application is directed against the aforesaid impugned order of the learned Judicial Magistrate. 4. Assailing the impugned order as being bad in law and without application of judicial mind, Mr. R.S. Mazumdar learned counsel appearing for the petitioners argues that the learned court below has failed to take into consideration the materials available on record in the case diary, which on proper scrutiny would indicate that the complaint as filed by the complainant/informant, is in fact based on totally false and misleading allegations and the complainant has been influenced and persuaded by the alleged prospective purchaser, Nand Lal Gupta who deals in real estate business. The petitioners had never entered into any agreement of sale of any property with the said Nand Lal Gupta, and they have challenged the purported agreement for sale produced by him and have also instituted a criminal complaint case against the said Nand Lal Gupta and his associates for the offences under Sections 420, 465, 468, 469, 471 and 120B of the I.P.C., which was forwarded to the Police Station for registration of a case. Learned counsel adds that the present case against the petitioners is a counter blast to the aforesaid case filed by the petitioners against the said Nand Lal Gupta and his associates. Learned counsel explains further that the petitioners assert that the complainant had actually executed a deed of gift in favour of the petitioner no. 1, which was registered at Kolkata on 16.10.1993 and, therefore, there could be no occasion for her to pay any consideration amount to the complainant. Furthermore, admittedly, the complainant has already filed a Title Suit vide Title Suit No. 148 of 2003 against the petitioner no. 1 for declaration and cancellation of the deed of gift. Learned counsel argues that under such circumstances, since a civil suit has already been filed by the complainant for declaring the deed of gift as null and void, no criminal liability can be attached to the petitioners unless it is adjudicated upon by the competent court that the deed of gift is not genuine and is a forged document. Learned counsel argues further that at best considering the nature of dispute between the parties, it could be a case of a breach of contractual obligation and, no criminal liability can be attached to the petitioners for breach of contractual obligations. In support of his arguments, learned counsel would refer to the judgment of the Supreme Court, in the case of Ram Biraji Devi and Another vs. Umesh Kumar Singh and Another reported in (2006)6 see 669 and the judgment in the case of Uma Shankar Gopalika vs. State of Bihar and Another reported in (2005)10 SCC 336 . 5. Per contra, learned counsel for the Opposite Party No.2 would argue that the entire grounds advanced by the petitioners are not only misconceived but also misleading Mr. 5. Per contra, learned counsel for the Opposite Party No.2 would argue that the entire grounds advanced by the petitioners are not only misconceived but also misleading Mr. Indrajit Sinha, learned counsel appearing for the Opposite Party No.2 would submit that from the nature of allegations, it would be apparent that the petitioners taking advantage of their proximity with the complainant-old lady had persuaded her to agree for executing a deed of sale in their favour in respect of the complainant's land and they had also persuaded her to go to Kolkata for executing and registering a sale deed. The fact that the deed obtained from the complainant by the petitioners was not a sale deed but was a deed of gift, which the complainant had never intended to execute, would amply suggest that the complainant was cheated by the accused persons to execute the disputed document and thereafter taking advantage of the document, the petitioners had wanted to dispose of the same and in the process, to make dishonest wrongful gain for themselves. Learned counsel argues that the mere institution of the civil suit shall not prevent under the facts and circumstances, the complainant to lodge a criminal prosecution against the accused persons for the offences committed by them. In support of his contention, learned counsel relies upon the judgment of the Supreme Court In the case of Kamala Devi Agarwal vs. State of W.B. and Others reported In (2002)1 SCC 555 , the judgment in the case of Vitoori Pradeep Kumar vs. Kaisula Dharmaiah and Others reported In (2002)9 SCC 581 and the judgment in the case of Trisuns Chemical Industry vs. Rajesh Agarwal and Others reported in (1999)8 SCC 686 . 6. The judgments referred to by the learned counsel for both the parties relate mostly to exercise of the powers of the High Court under Section 482 of the Cr.P.C. for quashing the criminal proceedings. In the decisions cited by the parties and in several recent Judgments, including the judgments of the Supreme Court rendered in Zandu Pharmaceuticals Works ltd. vs. Mohd. Sharaful Haque reported in (2005)1 SCC 182, certain principles have been laid down by the Supreme Court as guidance in the matter of exercise of inherent jurisdiction by the High Court where the issue raised is for quashing the criminal proceedings. vs. Mohd. Sharaful Haque reported in (2005)1 SCC 182, certain principles have been laid down by the Supreme Court as guidance in the matter of exercise of inherent jurisdiction by the High Court where the issue raised is for quashing the criminal proceedings. Amongst the various guidelines given by the Apex Court, there is a guideline in respect of a situation, wherein in the given set of facts involving a commercial transaction or a contractual dispute, it may make out (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. In the case of Indian Oil Corporation Ltd. vs. N.E.P.C. India ltd., reported in (2006)6 SCC 736 the Supreme Court has laid down the principle guideline in the following terms:- "(v) A given set of facts may make out: (a) purely a civil wrong, or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve " criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." 7. It is thus, well-settled that the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed, is not by itself a ground to quash criminal proceedings. The test is whether it discloses a criminal offence or not? If the allegations in the complaint taken at their face value, disclose a criminal offence, a complaint cannot be quashed merely because it relates to a breach of contract for which civil remedy is available or has been availed. 8. The test is whether it discloses a criminal offence or not? If the allegations in the complaint taken at their face value, disclose a criminal offence, a complaint cannot be quashed merely because it relates to a breach of contract for which civil remedy is available or has been availed. 8. In the present case, the petitioners would claim that the allegations in the complaint petition, even taken on its face value do not make out any criminal offence against the petitioners and at best, it would amount to a breach of contractual obligation for which a civil remedy alone may be available to the complainant and such remedy, which she has already availed. 9. From the nature of the allegations in the complaint petition/F.I.R., it appears prima facie that the petitioner had induced the complainant-old lady to execute a deed of sale in their favour in respect of her property on the plea of availing monetary advantage in getting the deed registered at Kolkata, they had taken her along with them to Kolkata and taking advantage of her illiteracy and her bona fide faith in their representation, they had obtained a gift deed in their favour, from the complainant. Apparently, the allegations suggest prima facie, that the accused persons had entertained the dishonest intention to defraud the complainant from the very beginning. The allegations further indicate that after having patiently waited for 10 years, the accused persons wanted to obtain wrongful monetary gain for themselves by offering the land for sale on the declaration that they were the legal owners of the property. Thus, the ingredients of the offence of cheating is prima facie made out and the complainant is certainly entitled under the law to seek redressal for the injury caused to her by way of instituting criminal proceedings against the accused persons. The argument that the civil suit, which has already been filed by the complainant in respect of the disputed gift deed, debars her from filing a criminal case against the petitioners is not acceptable. The learned court below has discussed these very aspects, which appear from the materials available on record and has recorded its satisfaction that the materials do make out a prima facie case to put the accused persons on trial for the offences under Sections 420 and 120 B of the I.P.C . The learned court below has discussed these very aspects, which appear from the materials available on record and has recorded its satisfaction that the materials do make out a prima facie case to put the accused persons on trial for the offences under Sections 420 and 120 B of the I.P.C . and that the charge proposed to be framed against them for the aforesaid offences is not groundless. 10. In the light of the above discussions, I do not find any illegality or infirmity in the impugned order of the trial court. There being no merit in this application, the same is dismissed.