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2011 DIGILAW 194 (RAJ)

Rampal Sharma v. State of Rajasthan

2011-01-27

MAHESH CHANDRA SHARMA

body2011
JUDGMENT 1. - The accused-petitioner Ram Pal Sharma, has filed this criminal misc. petition under Section 482 Cr.P.C. for quashing the F.I.R. No. 28/2009 registered at Police Station CID (SOG) Jaipur against him. 2. Brief facts of the case are that the accused-petitioner had ancestral land situated in village Labana 'I'ehsil Amer District Jaipur in Khasra Nos. 143, 147 to 164 and 167 total 60 Bighas and 18 Bishwas having half share. On 3.4.2005 the accused-petitioner entered into an agreement with one Ajeet Sharma for selling his aforesaid share for a consideration of Rs. 21,00,000/- and Rs. 15,00,000/- were given in cash as advance. 'Me remaining amount of Rs. 5,00,000/- was to be paid to the petitioner by 30.6.2005 and the petitioner was to execute the sale deed. The accused-petitioner did not execute the sale deed as the respondents 3 and 4 Prakash Chand Jain and Rafique Khan contacted him and paid Rs. 1,00,000/- to sell the said land on 30.6.2005. The petitioner given out that he informed about the earlier agreement with Ajeet Sharma but the respondents 3 and 4 stated that they are influential enough to tackle the person with whom the petitioner had entered into agreement on 3.4.2005. It is alleged by the petitioner on account of this he did not honour the earlier agreement and received a notice sent by Ajeet Sharma on 19.7.2005. Ajeet Sharma filed a civil suit for specific performance in the Court of District Jude, Jaipur District on 20.9.2005. On 23.9.2005 the Additional District Judge No. 2 Jaipur District Jaipur passed an ad-interim order directing the petitioner to maintain status quo in regard to the land in question. On 1.5.2006 the respondents 3 and 4 and witnesses of the agreement dated 8.7.2005 filed affidavit to the effect that the agreement dated 34.2005 is forged. The trial Court vide order dated 4.5.2006 dismissed the application for temporary injunction filed by Ajeet Sharma. The petitioner approached the appellate Court wherein interim order to maintain status quo was passed and vide order dated 15.5.2007 the appeal filed by him was allowed and the parties were directed to maintain status quo and the trial Court was directed to decide the civil suit expeditiously. The petitioner approached the appellate Court wherein interim order to maintain status quo was passed and vide order dated 15.5.2007 the appeal filed by him was allowed and the parties were directed to maintain status quo and the trial Court was directed to decide the civil suit expeditiously. The petitioner approached the respondents 3 and 4 on a number of occasions to get the suit decided but they refused to cooperate with the petitioner and without consent of the petitioner they moved an application under Order 1, Rule 10 C.P.C. for impleading them as parties to the civil suit on 22.11.2008. After obtaining receipt oft 1,00,000 from the petitioner on 30.6.2005, the respondents 3 and 4 prepared an agreement dated 8.7.2005 wherein it was shown that the petitioner has sold the land for a consideration of Rs. 1,42,51,000/- and Rs. 20,00,000/- were taken' by cheque besides Rs. 1,00,000/- in cash taken earlier as advance by the petitioner. The remaining amount was to be paid to the petitioner at the time of execution of the sale deed by April 2006. The respondents 3 and 4 did not take any steps to get the sale deed executed in his favour and did not pay the remaining amount. The petitioner kept requesting the respondents 3 and 4 to make efforts but the petitioner sat tight over the matter. The petitioner stated in the petition that he was left with no option but to approach the original agreement holder Ajeet Sharma as he was in dire need of money and he agreed to pay the same price as was agreed by the respondents 3 and 4. The civil suit pending before the Additional Judge No. 2 Jaipur District was dismissed in default on 17.3.2009 and on 18.3.2009 the sale deed was executed by the petitioner in favour of Shyarnlata as per the instructions of Ajeet Sharma. On 21.3.2009 the petitioner approached the respondents 3 and 4 and tendered them cheques of Rs. 10,50,000/- each as that was the advance received by the petitioner but they refused to accept the same and threatened that the petitioner will have to face dire consequences. On 18.6.2009 the respondents 3 and 4 filed civil suit against the petitioner and his brother, original agreement holder and the subsequent purchaser for permanent injunction, declaration, cancellation of sale deed and specific performance. On 18.6.2009 the respondents 3 and 4 filed civil suit against the petitioner and his brother, original agreement holder and the subsequent purchaser for permanent injunction, declaration, cancellation of sale deed and specific performance. The trial Court vide order dated 25.6.2009 passed an order directing defendants 2 and 4 to majntain status quo till next date. The respondents 3 and 4 in order to harass the petitioner and his family members filed a criminal complaint on 2.4.2009 in the Court of Chief Judicial Magistrate, Jaipur City. The CJM sent the aforesaid complaint on 7.7.2009 to the SOG (CI1)) Jaipur for investigation under Section 156(3) Cr.P.C. The petitioner stated in the petition that the SOG (CID) Jaipur did not had the jurisdiction still the F.I.R. No. 28/2009 was registered on 21.7.2009. The learned counsel stated that the dispute is fully of civil nature still in order to harass, the respondents 3 and 4 have lodged the F.I.R. with the ill motive. In these circumstances the petitioner has filed this misc. petition for quashing the F.I.R. 3. The learned counsel for the petitioner argued that the police has registered the F.I.R. with the ulterior motive to harass the petitioner. The respondents 3 and 4 after approaching the civil Court and getting the interim order approached the criminal Court only to harass the petitioner. Admittedly the petitioner had offered the cheques to the respondents 3 and 4 of the amount advanced by them but they refused to accept the same and the respondents 3 and 4 themselves did not honour the agreement dated 8.7.2005. The respondents jut as a preempt have lodged the F.I.R. registered against the petitioner as they felt that the petitioner might lodge an F.I.R. against them as it was due to their false assurance the petitioner signed the 11 agreement on 8.7.2005 for the same piece of land. 4. The learned Public Prosecutor assisted by the counsel for the respondents and the complainant himself opposed the misc. petition and stated that the case is at the investigation stage and at this stage when prima facie it is proved that the petitioner has taken Rs. 21,00,000 from the respondents 3 and 4 and got the sale deed executed in favour of a third person, thus the F.I.R. cannot be quashed under Section 482 Cr.P.C. 5. petition and stated that the case is at the investigation stage and at this stage when prima facie it is proved that the petitioner has taken Rs. 21,00,000 from the respondents 3 and 4 and got the sale deed executed in favour of a third person, thus the F.I.R. cannot be quashed under Section 482 Cr.P.C. 5. The petitioner filed written submissions stating therein that the dispute between the parties is of civil nature and the respondents have already filed the suit for specific performance of the contract arrived between the parties before the competent civil Court. The respondents with an evil eye and oblique motive to exert uncalled for pressure against the petitioner has moved the machinery of police in motion by filing the F.I.R. The petitioner submitted that it is the settled proposition of law that the machinery of police cannot be a substitute for a civil us between the parties and the F.I.R. is legally untenable. The Police Station SOG. is not having the jurisdiction to either to register the F.I.R. or to investigate the crime. For this purpose the counsel for the petitioner filed the copy of the notification dated 2.8.2005. The registration of the F.I.R. is per se bad being in contravention of Section 14 of the C.P.C. The learned counsel cited the case of B. Suresh Yadav v. Sharifa Bee and another, (2007) 13 SCC 107 . The prosecution fielded out the case by stating that even after having the sale agreement with the respondents in relation to the immovable property, the petitioner has sold the property to someone else. The learned counsel argued that it is quite shocking and rocking to legal and judicial conscience as to how it will attract the offence referred in the F.I.R. Lastly it was submitted that the F.I.R. may kindly be quashed in toto. 6. The learned counsel for the respondents also submitted written submissions. It was stated in the written submissions that the petition filed by the petitioner is absolutely vague, malafide and without any substance. The agreement with Ajit Sharma was only for a sum of Rs. 21,00,000/- whereas the agreement entered into between the respondents 3 and 4 and the petitioner is for a huge sum of Rs. 1,42,51,000/-. The learned counsel for the respondents in the written submissions pointed out that prima facie story concocted by the petitioner is difficult to be believed. The agreement with Ajit Sharma was only for a sum of Rs. 21,00,000/- whereas the agreement entered into between the respondents 3 and 4 and the petitioner is for a huge sum of Rs. 1,42,51,000/-. The learned counsel for the respondents in the written submissions pointed out that prima facie story concocted by the petitioner is difficult to be believed. Had there been any malofide on the part of the respondents 3 and 4 the said huge sum would not have been shown in the agreement to sale and there would have been no reason to advance Rs. 21,00,000/- itself which was credited in the accounts of the petitioner Rampal. This fact has not been denied. The petitioner had a dispute with his brother Gopal, which is a question of investigation. The petitioner testified the agreement with the respondents 3 and 4 by filing an affidavit before the judicial Court and in the judicial proceedings wherein, he had denied that any agreement was entered into with Ajit Sharma. The petitioner is not only guilty in defrauding respondents 3 and 4 but is also guilty of submitting false reply and he is liable to be prosecuted for forged proceedings in filing wrong affidavit before the judicial Court. The learned counsel further submitted that no relief can be granted to the petitioner since the jurisdiction under Section 482 Cr.P.C. is discretionary in nature and could not be exercised in favour of the petitioner who had not come with clean hands. Prima facie case is made out as against the petitioner which has been gathered on the basis of the F.I.R. and there is no reason of interference in the investigation at the preliminary stage. The learned counsel cited the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 . The perusal of the F.I.R. would go to show that ingredients of the offences thereby defrauding the respondents in the matters of large scale economic frauds and organised crimes at the instance of the petitioner and the same constitutes the offence under Sections 420, 406, 467, 468, 471, 1.93 and 12013 I.P.C. The petitioner has shown that he has sent cheques of Rs. 10,50,000/- each to the respondents 3 and 4 but the said amount was never deposited in the accounts of the respondents 3 and 4. 10,50,000/- each to the respondents 3 and 4 but the said amount was never deposited in the accounts of the respondents 3 and 4. The petitioner again has made a false statement as there is no proof of sending the cheques hack. The amount could have been deposited in order to show bona fide in the petitioner's account and bank draft could have been sent. The petitioner has stated that he was ready to get the sale deed executed but the respondents did not make the payment of rest of the amounts and respondents 3 and 4 sat tight over the matter. The learned counsel submitted that the fraud is writ large when the sale deed has been executed in favour of Mst. Shyamlata, who is none else but daughter-in-law of the petitioner's real brother. Obtaining money from the respondents 3 and 4 by the petitioner for unlawful gains is clearly made out and the unlawful loss to respondents 3 and 4 is also clearly made out so also, forged document is also clearly made out. when the offences and the ingredients therein are prima facie disclosed in the F.I.R., there is no reason to quash the same at the investigation stage. 7. Before proceeding further it would be necessary to have a look at the provisions of Section 482 Cr.P.C., which reads as under " 482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 8. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 8. It is also necessary to have a look at the principles enunciated by the Apex Court in State of Haryana and others v. Bhajan Lal and others , which are as under : (a) 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; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the F.I.R. 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; (d) where the allegations in the F.I.R. do not constitute a cognizable offence 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; (e) where the allegations 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; (f) where there is an express legal bar engrafted 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, and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) 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 and with a view to spite him due to private and personal grudge. 9. In State of Karnataka and another v. Pastor P. Raju , the Apex Court in para 11 observed as under : 11. There is another aspect of the matter which deserves notice. The F.I.R. in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the Police Station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja & Anr., (2003) 6 SCC 195 , where after referring to King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 , H.N. Rishbud & Inder Singh v. The State of Delhi, AIR 1955 SC 196 , State of West Bengal v. SN Basak, AIR 1963 SC 447 , Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 SC 117 and State of Bihar & Anr. v. JAC Saldanha & Ors., (1980) 1 SCC 554 , it was observed as under in para 20 of the reports : "20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the Officer-in-charge of Police Station in Court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency." This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the, investigation stage. 10. 10. I have gone through the F.I.R., particularly the documents enclosed with the petitions and the arguments submitted by both the parties and cases relied upon by them and the principles enunciated above in the cases of State of Haryana and others v. Bhajan Lal and others (supra) and State of Karnataka and another v. Pastor P. Raju (supra), in my considered opinion at this stage in the instant case, the allegations made in the F.I.R., do clearly constitute a cognizable offence and this case does not call for the exercise of inherent powers of this Court under Section 482 Cr.P.C. to quash the F.I.R. itself. Admittedly Rs. 21,00,000/- were paid by the respondents to the petitioner at the time of agreement dated 8.7.2005 which have been credited to the account of the petitioner. Admittedly the sale deed was executed in favour of Mst. Shyamlata, who is none else but daughter-in-law of the petitioner's real brother. Obtaining money from the respondents 3 and 4 by the petitioner for "unlawful gains is clearly made out and the unlawful loss to respondents 3 and 4 is also clearly made out. When the offences and the ingredients therein are prima facie disclosed in the F.I.R., there is no reason to quash the same at the investigation stage. The petitioner testified the agreement with the respondents 3 and 4 by filing an affidavit before the judicial Court and in the judicial proceedings wherein, he had denied that any agreement was entered into with Ajit Sharma. The jurisdiction under Section 482 Cr.P.C. is discretionary in nature and could not be exercised in favour of the petitioner who had not come with clean hands. Prima facie case is made out against the petitioner which has been gathered on the basis of the F.I.R. and there is no reason of interference in the investigation at the preliminary stage. The case is still under investigation and the police in the process of collecting evidence. The investigation is necessary and the same cannot be stopped at this stage in a proceedings under Section 482 Cr.P.C. The cases cited by the accused-petitioner is not applicable to the facts and circumstances of the case. 11. In view of the above, the misc. petition filed by the accused-petitioner is rejected. The interim order dated 9.8.2009 passed by this Court is vacated.Petition rejected. *******