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2009 DIGILAW 194 (CHH)

Shekharesh Bhattacharya v. Sardar Charanjit Singh

2009-07-13

D.R.DESHMUKH

body2009
JUDGMENT (1) The unsuccessful petitioner in criminal revision No. 668/1999 has preferred this petition under section 482 of the Code of Criminal Procedure (henceforth 'the Code') praying for dismissing the complaint and quashing the process which has been issued against him in criminal case No. 1172/1998 by the Judicial Magistrate First Class by order dated 26. 10. 1999. (2) Brief facts necessary to unfold the main issue in the petition are that the respondent no. 1 Charanjit Singh filed a complaint before the Judicial Magistrate First Class, raipur alleging that he had agreed to purchase the land situated at plot No. 19/3, block No. 19 in Civil Station, Raipur from the petitioner and his brother's son respondent No. 2 on a 5. 7. 1994. Under the agreement, the respondent No. 1 had initially paid rs. 50,000 to the petitioner and the respondent No. 2. According to the terms of the agreement, after getting the renewal of the lease of the property mentioned above, the petitioner and the respondent No. 2 were required to inform the respondent No. 1. It was only thereafter that respondent No. 1 was required under the agreement to get a sale deed registered. On payment of rs. 1,00,000 by the respondent No. 1 to the petitioner on 25. 6. 1996 and pursuant to a condition in the agreement dated 5. 7. 1994, the parties had, on 25. 6. 1996, extended by mutual consent the period of execution of sale deed. The petitioner executed a General Power of Attorney soon thereafter in favour of the respondent No. 2 on 2. 7. 1996 for executing a sale deed. The petitioner and respondent No. 2 did not give any intimation regarding renewal of the lease to respondent No. 1 and surreptitiously and without informing Sardar Sarabjit Singh about the agreement entered into by them with respondent No. 1 sold one shop and the land situated behind it to Sardar Sarabjit Singh on 3. 7. 1996 for a consideration of rs. 1,25,000. On these premises, a complaint for offence under Sections 420, 467, 468 and 471 read with Section 34 of the I. P. C. was filed by respondent No. 1. The statements of complainant/respondent No. 1 Sardar Charanjit Singh and witness Gurubax Singh were recorded under section 200 of the Code and by order dated 10. 09. 1,25,000. On these premises, a complaint for offence under Sections 420, 467, 468 and 471 read with Section 34 of the I. P. C. was filed by respondent No. 1. The statements of complainant/respondent No. 1 Sardar Charanjit Singh and witness Gurubax Singh were recorded under section 200 of the Code and by order dated 10. 09. 1997 the Judicial Magistrate First class took cognizance of an offence under section 420 of the I. P. C. against the petitioner and respondent No. 2 by registering criminal case No. 1172/1998. (3) Being aggrieved, the petitioner preferred criminal revision No. 668/1998 before the 6th Additional Sessions Judge, Raipur. By the impugned order dated 21. 6. 2000 the revision was dismissed while affirming the order taking of cognizance by the Judicial magistrate First Class against the petitioner and respondent No. 2 under Section 420 of the I. P. C. (4) Admittedly, after filing of the complaint before the Judicial Magistrate First Class, the respondent No. 1 had also filed a Civil suit No. 9a/2000 against the petitioner, respondent No. 2 and the purchaser Sardar sarabjit Singh for specific performance of contract. It is also not in dispute that the said Civil suit was dismissed by judgment dated 11. 10. 2001 on the ground that respondent No. 1 was not always ready and willing to perform his part of the contract. A finding was recorded in the Civil suit that the respondent No. 1 had paid a sum of rs. 1,00,000 to the petitioner herein, on 25. 6. 1996. Admittedly, first appeal preferred by the respondent No. 1 against the judgment dated 11. 10. 20,01 is pending. The present petition under Section 482 of the code was filed on 25. 7. 2000 during the pendency of the Civil Suit and after dismissal of criminal revision No. 668/1999. Shri Anant Bajpai, learned counsel for the petitioner placed reliance on Veer prakash Sharma v. Anil Kumar Agarwal and Anr., B. Suresh Yadav v. Sharifa Bee and anr. and Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. and argued that the dispute between the parties was essentially of a civil nature. The respondent no. 1/complainant had also admitted before the Judicial Magistrate First Class in his. ., statement recorded under Section 200 cr. and Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. and argued that the dispute between the parties was essentially of a civil nature. The respondent no. 1/complainant had also admitted before the Judicial Magistrate First Class in his. ., statement recorded under Section 200 cr. P. C. that while selling the property in question to Sardar Sarabjit Singh, the petitioner and respondent No. 2 had mentioned about the agreement with respondent No. 1 in the sale deed. Learned counsel argued that even if the allegations contained in the complaint and the statements recorded under Section 200 Cr. P. C. were taken at their face value, it would not divulge, in any manner, the existence of any ground for registering a criminal case under Section 420 of the I. P. C. against the petitioner and respondent No. 2. Learned counsel for the petitioner urged that the issuance of process and the continuation of the complaint would, in the circumstances mentioned above amount to abuse of process of the Court, and therefore, the petition under Section 482 of the code deserves to be allowed. (5) On the other hand, Shri Anup majumdar, learned counsel for respondent no. 1 placed reliance on Mahesh Chaudhary v. State of Rajasthan and another and K. Ashoka v. N. L. Chandrashekar and others and argued that while considering the application under Section 482 of the Code, this court would not embark upon appreciation of evidence, and therefore, registration of a criminal case under Section 420 of the I. P. C. and the issuance of the process against the petitioner and respondent No. 2 by the Judicial Magistrate First Class having been affirmed in criminal revision No. 668/1999, the question whether there were grounds to issue process against the petitioner and respondent No. 2 for an offence under Section 420 of the I. P. C. could not be re-agitated by a petition under Section 482 of the code. It was further argued that merely because the dispute between the parties had some elements of civil nature, the criminal prosecution launched against the petitioner and respondent No. 2 ought not to be quashed under Section 482 of the Code. It was argued that the fact that after receiving a sum of Rs. 1,00,000 from the respondent No. 1 on 25. 6. It was argued that the fact that after receiving a sum of Rs. 1,00,000 from the respondent No. 1 on 25. 6. 1996 and agreeing to extend time for execution of sale deed the petitioner executed a General Power of Attorney in favour of the respondent No. 2, who sold a part of the land and a shop to Sardar sarabjit Singh soon thereafter on 02. 07. 1996 provided the necessary mens rea and the fraudulent intention on the part of the petitioner and respondent No. 2 for constituting the cognizable offence under Section 420 of the I. P. C. (6) Shri N. K. Vyas, learned counsel for respondent No. 2 adopted the arguments advanced by learned counsel for the petitioner. Having considered the rival submissions, I have perused the documents annexed with the petition under Section 482 of the Code. The questions that are involved for determination in this petition are whether the facts mentioned in the complaint and the statements under Section 200 of the Code taken at their face lance disclose a cognizable offence under Section 420 of the I. P. C. and whether in view of the dismissal of the suit for specific performance of contract by the 6th Additional Judge, raipur by judgment dated 11. 10. 2001, the 9ontinuance of the proceedings before the judicial Magistrate First Class, Raipur in criminal Case No. 1172/1998 would amount to abuse of the process of the Court. (7) The questions involved in this petition came up for consideration before the supreme Court of India on several occasions. In K. Ashoka v. N. L. Chandrashekar and others (supra) it was held as under: "14. It is now a well-settled principle of law that the High Court in exercise of its inherent jurisdiction under Section 482 of the Code may quash a criminal proceeding inter alia in the event the allegations made in the complaint petition even if they are taken at their face value and accepted in their entirety does not disclose commission of a cognizable offence. Some of the principles which would be attracted for invoking the said jurisdiction have been laid down in Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188 are: (SCC p. 748, para 12)" (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (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 a 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. 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. " (8) In Mahesh Chaudhary v. State of rajasthan and another (supra) it was held as under: "11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence. 12. It is also well settled that save and except in very exceptional circumstances, the Court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or the complaint petition fulfil the ingredients of the offences alleged against the accused. 13. Indisputably, the question as to whether the complainant was entitled to a higher amount of commission in terms of the agreement dated 21-2-1973 is essentially a civil dispute. The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is therefore, difficult to hold as has rightly been opined by the investigating officer that a case for imposing a criminal liability on the accused on that Score has been made out. 14. While saying so, we are not unmindful of the limitations of the Court's power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any court or otherwise to secure the ends of justice. 14. While saying so, we are not unmindful of the limitations of the Court's power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court at that stage would not embark upon appreciation of evidence The Court shall moreover consider the materials on record as a whole. In Kamala Devi agarwal v. State of W. B., (2002) 1 SCC 555: 2002 SCC (Cri) 200, this Court opined: (SCC pp. 559-60, para 7)"7. This Court has consistently held that the revisional or inherent powers of quashing the Proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirely, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. " In R. Kalyani v. Janak C. Mehta6 the supreme Court has laid down the law in following terms: "15. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein; even if given face value and taken to be correct in their entirety, disclosed no cognizable offence, (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the original proceedings should not be allowed to continue. 16. lt is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the original proceedings should not be allowed to continue. 16. lt is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of sections 482 and 483 of the Code of criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. " (9) In G. Sagar Suri and Anr. v. State of u. P. and Ors. the Supreme Court has opined as under: "8. Jurisdiction under Section 482 of the code has to be exercised with great care. In exercise of its jurisdiction the high Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. " (10) It is appropriate to make analysis of relevant provisions of law regarding the offence of cheating which is defined in section 415 IPC and is punishable under Section 420 IPC. Section 415 is set out below: "415. " (10) It is appropriate to make analysis of relevant provisions of law regarding the offence of cheating which is defined in section 415 IPC and is punishable under Section 420 IPC. Section 415 is set out below: "415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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 causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. Explanation - A dishonest concealment of facts is a deception within the meaning of this section. " section 415 IPC thus requires -1. deception of any person. 2 (a) fraudulently or dishonestly inducing that person: (i) to deliver any property to any person: or (ii) to consent that any person shall retain any property; or (b) 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 causes or is likely to cause damage or harm to that person in body, mind, reputation or property. " On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of act is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent of dishonest. 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 a fraudulent or dishonest intention at the time of making the promise. In the second class of acts, the inducing must be intentional but need not be fraudulent of dishonest. 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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the. beginning. In Hira Lal Hari Lal Bhagwati v. CBI, new Delhi the Supreme Court has held as under: "it is settled law, by a catena decisions that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. . . . As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the indian Penal Code does not arise. " (11) Having discussed the law, it is now required to be seen whether the allegations contained in the Complaint and the statements recorded under Section 200 Cr. P. C. if on face value are taken to be correct in their entirety would disclose the commission of a cognizable offence under Section 420 of the I. P. C. It is no doubt true that the requisite mens rea or the fraudulent intention required to constitute a cognizable offence under Section 420 of the I. P. C. was entirely missing on 5. 7. 1994 i. e. when the petitioner and the respondent No. 2 entered into an agreement with respondent No. l for the sale of the plot and land in question. It appears that an essential ingredient of the agreement between the parties was that the petitioner and respondent No. 2 were required to give intimation regarding the renewal of the lease to the respondent No. l which they did not. On 25. 06. 1996, the petitioner executed a document evidencing receipt of the part consideration of rs. 1,00,000 from the respondent No. l and agreeing to inform the respondent No. l after renewal of the lease. This document dated 25. 6. On 25. 06. 1996, the petitioner executed a document evidencing receipt of the part consideration of rs. 1,00,000 from the respondent No. l and agreeing to inform the respondent No. l after renewal of the lease. This document dated 25. 6. 1996 clearly shows that the agreement between the parties was effective and alive on 25. 6. 1996 also. It is also not in dispute that the respondents had, in their written statement filed in Civil Suit no. 9a2000, admitted the fact that the petitioner had received a sum of Rs. 1,00,000 from the respondent No. l on 25. 6. 1996. In this view of the matter, the fact that soon after the execution of receipt dated 25. 6. 1996 in favour of the respondent No. l the petitioner executed a General Power of attorney in favour of the respondent No. 2, who without wasting any further time, executed a sale deed of a portion of a land and a shop in favour of one Sardar Sarabjit singh provides the necessary fraudulent intention to cheat, against the petitioner and the respondent No. 2. The complaint clearly mentions that on 25. 6. 1996 the respondent No. l had paid Rs. 1,00,000 whereupon the agreement between the parties was kept alive and the petitioner and respondent No. 2 undertook to give intimation of the renewal of lease to respondent No. l. It also mentions that the petitioner and the respondent No. 2 had, for causing wrongful, loss to the respondent No. l and wrongful gain to themselves, sold a portion of the property to Sardar Sarabjit Singh. In his statement under Section 200 Cr. P. C, the respondent No. l had stated these facts on oath and had further deposed that in the sale deed executed by the petitioner and respondent No. 2 in favour of Sardar Sarabjit singh, it was mentioned that the agreement with the respondent No. l had been cancelled. I am of the considered opinion that the above mentioned facts taken on their face value in its entirety do constitute a cognizable offence under Section 420 of the i. P. C against the petitioner and the respondent No. 2. (12) As observed earlier, even in Civil Suit no. 9a/2000 the Court had held that the petitioner had received a sum of Rs. 1,00,000 from the respondent No. l on 25. 6. 1996 which was also an admitted fact. (12) As observed earlier, even in Civil Suit no. 9a/2000 the Court had held that the petitioner had received a sum of Rs. 1,00,000 from the respondent No. l on 25. 6. 1996 which was also an admitted fact. As held in k. Ashoka v. N. L. Chandrashekar and others (supra), the mere fact that a civil remedy has been availed in relation to the contract between the parties would not by itself constitute "a valid ground to quash the criminal proceedings. Applying the test laid down by the supreme Court of India in various decisions, i am of the considered opinion that the requisite fraudulent intention to cheat the respondent No. l was prima facie present on the date when the petitioner, after accepting a sum of Rs. 1,00,000 from the respondent No. l on 25. 6. 1996 and after executing a document evidencing continuation of the agreement and the liability to inform the respondent No. 1 after renewal of the lease, executed a General Power of Attorney in favour of the respondent No. 2 who sold a portion of the property soon thereafter on 2. 7. 1996 to Sardar Sarabjit Singh upon a false assertion that the agreement with the petitioner had been cancelled. (13) Having reached the above conclusion, i am of the considered opinion that the petition under Section 482 of the Code is liable to be and is accordingly dismissed. Petition dismissed.