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2012 DIGILAW 288 (HP)

Someer Mehta v. Col. Prem Vir Singh

2012-05-16

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This petition under Section 482 Cr.P.C. has been filed for quashing order dated 27.05.2011 and proceedings in Criminal Complaint No. 252-2 of 2010 pending in the Court of learned Chief Judicial Magistrate, Shimla, under Sections 406, 420, 120-B IPC. The facts, in brief, are that respondent No.1 has filed complaint under Sections 406, 420, 120-B IPC against petitioners and respondent No.2 which is pending in the Court of learned Chief Judicial Magistrate, Shimla. On 27.05.2011, the petitioners and respondent No.2 have been summoned under Sections 406, 420 and 120-B IPC. 2. The case set-up by the complainant is that petitioner No.1 contacted him in July, 2008 and represented that he can get the Flat No.A-1, Block-10, Housing Board Colony, Shimla, owned by respondent No.2 sold to complainant as petitioner No.2 was authorised attorney of respondent No.2 owner and entitled to sell the flat. On the assurance of petitioner No.1, the complainant was induced to pay Rs. 1,00,000/- to petitioner No.1. The complainant was assured that deal would be concluded by 30.08.2008. The payment of Rs. 1,00,000/- was made by self-bearer cheque No.313861 dated 24.07.2008 drawn on Oriental Bank of Commerce, Shimla. 3. The respondent No.1 paid a sum of Rs. 90,000/- to petitioner No.1 on 06.08.2008 and Rs. 10,000/- by way of cheque No.313862 drawn on O.B.C., Shimla, on 06.08.2008. The respondent No.1 was informed by petitioner No.1 that respondent No.2 would be coming to Shimla on 22.12.2008 for completing formalities of sale. 4. On 24.12.2008, the parties went to District Court Complex and non-judicial stamp worth Rs. 5/- was purchased for drawing up agreement to sell, draft agreement was got typed and given for proof reading. The General Power of Attorney was executed by respondent No.2 in favour of petitioner No.2. The complainant paid a sum of Rs. 1.10 lakhs in cash to petitioners on 24.12.2008 in A.D.C. Club, Shimla. The complainant in all has paid Rs. 2,00,000/-to petitioners and respondent No.2 towards the sale consideration. 5. The petitioners and respondent No.2 from the beginning had no intention to sell the property. The petitioners and respondent No.2 conspired to cheat complainant. The complainant paid a sum of Rs. 1.10 lakhs in cash to petitioners on 24.12.2008 in A.D.C. Club, Shimla. The complainant in all has paid Rs. 2,00,000/-to petitioners and respondent No.2 towards the sale consideration. 5. The petitioners and respondent No.2 from the beginning had no intention to sell the property. The petitioners and respondent No.2 conspired to cheat complainant. The petitioners and respondent No.2 knowing fully well that they do not have any right, title or interest in the flat nor having any authority to sell the same by concealing true facts fraudulently misrepresented the facts and cheated the complainant and received Rs. 2,00,000/- which were misappropriated and thus committed offences punishable under Sections 406, 420, 120-B IPC. 6. It has been stated by petitioners that the proceedings started by complainant against petitioners and respondent No.2 are purely of civil nature. The criminal complaint is an abuse of process of Court and law. The learned Chief Judicial Magistrate has erred in summoning the petitioners and respondent No.2 in mechanical manner without appreciating the facts of the case. 7. There are material contradictions regarding sale consideration. In notices dated 10.01.2009 and 17.03.2009 the sale consideration has been stated Rs. 4,00,000/-. In notice dated 19.04.2011, the sale consideration has been stated Rs. 6,00,000/-. On their face value even if allegations are accepted in their entirety they do not make out any criminal case. The complainant has initiated proceedings with malafide object to pressurise petitioners and respondent No.2 to submit to his illegal demands. A contractual dispute has been converted into a criminal case. 8. The complaint was filed on 08.06.2010, whereas, the alleged transaction has taken place in July, 2008, as per allegations in the complaint. The petitioner No.2 is an aged person of 81 years. The complaint does not disclose commission of any offence against petitioners and respondent No.2. The submission has been made for quashing of the proceedings. 9. Heard and perused the record. In the complaint, it has been stated that petitioner No.1 on 24.07.2008 contacted respondent No.1- complainant and represented to him that he can get Flat No.A-1, Block No.10, Housing Board Colony, Jakhoo, owned by respondent No.2, sold to respondent No.1 by getting the sale deed executed from him. 9. Heard and perused the record. In the complaint, it has been stated that petitioner No.1 on 24.07.2008 contacted respondent No.1- complainant and represented to him that he can get Flat No.A-1, Block No.10, Housing Board Colony, Jakhoo, owned by respondent No.2, sold to respondent No.1 by getting the sale deed executed from him. The petitioner No.1 also represented to respondent No.1 that onus of getting all the documents executed and signed from original owner in his favour will be upon him. The respondent No.1 believed the representation made by petitioner No.1. The petitioner No.1 on 24.07.2008 induced respondent No.1 to make payment of Rs. 1,00,000/- by way of cheque No. 313861, O.B.C., Shimla and petitioner No.1 received payment as per writing dated 24.07.2008. The petitioner No.1 agreed to conclude the deal on 30.08.2008. 10. The respondent No.1 requested petitioner No.1 to get the sale deed executed as per writing dated 24.07.2008, but petitioner No.1 demanded cash from respondent No.1 instead of self-bearer cheque which was given on 24.07.2008. The respondent No.1 paid an amount of Rs. 90,000/- to petitioner in cash on 06.08.2008 in presence of Ajay Kumar and cheque No. 313862 for Rs. 10,000/-, O.B.C., Shimla. 11. On the repeated requests of respondent No. 1, petitioner No.1 informed respondent No.1 that respondent No.2 would be coming to Shimla on 22.12.2008 for execution and registration of sale deed. On 22.12.2008 petitioners and respondent No. 2 represented to respondent No. 1 that respondent No.2 had come only for purpose of getting the sale deed executed. The petitioner No. 1 represented to respondent No.1 that respondent No. 2 will not be in a position to extend his stay at Shimla, therefore, he will be executing General Power of Attorney in favour of petitioner No.2 to execute the sale deed of the flat in favour of respondent No. 1. It was also represented to respondent No.1 that agreement to sell will also be executed on 24.12.2008. The draft agreement was prepared. The General Power of Attorney was also got typed and registered by respondent No. 2 in favour of petitioner No.2. The petitioners and respondent No. 2 insisted for payment of a sum of Rs. 1,10,000/- which was paid by respondent No.1 to petitioners and respondent No. 2 on 24.12.2008. The petitioners and respondent No.2 had received a total sum of Rs. The petitioners and respondent No. 2 insisted for payment of a sum of Rs. 1,10,000/- which was paid by respondent No.1 to petitioners and respondent No. 2 on 24.12.2008. The petitioners and respondent No.2 had received a total sum of Rs. 2,00,000/- from respondent No. 1 towards the sale consideration of the flat. 12. It has been stated in the complaint that accused had no intention to sell the flat and from the very beginning intended to cheat the respondent No.1 and with this motive petitioners and respondent No.2 conspired. They fraudulently and dishonestly induced respondent No.1 to part with a sum of Rs. 2,00,000/-.The petitioners and respondent No.2 had no right, title or interest of any kind in the flat nor petitioners had any authority on 24.07.2008, 06.08.2008 and on 24.12.2008 to represent to respondent No.1 to sell the flat. The respondent No.2 concealed true facts about the ownership of the flat from respondent No.1. The respondent No.2 had specific knowledge that his father, who was original owner had already sold the flat in question to Mrs. Krishana Mehta. The respondent No.1 appeared as CW-5 and has reiterated his stand taken in the complaint. He has stated that cheque of Rs. 10,000/- is still with petitioner No.1. He has stated that Daljit Singh, father of respondent No.2 had already sold the flat to mother of petitioner No.1 and wife of petitioner No.2 Mrs. Krishana Mehta. This respondent No.1 came to know when he received reply Ex.CW5/E to his notice. Ex.CW2/A is the copy of registered General Power of Attorney dated 24.12.2008 by respondent No.2 in favour of petitioner No. 2 in which he has represented himself as co-owner along with his mother Smt. Ranjit Kaur of Block No. 10, A-1, Jakhoo, Housing Board Colony. Ex.CW5/A is the writing dated 24.07.2008 by petitioner No. 1 in favour of respondent No.1 indicating receipt of cheque No.313861 for Rs. 1,00,000/-. Ex. CW5/C is copy of draft agreement dated 24.12.2008, on page 56 of trial Court file is Ex. CW5/E which is reply dated 10.04.2009 to notice dated 17.03.2009. The second page of this reply is at page 65 of trial Court file. 13. The learned counsel for the petitioners has submitted that dispute raised by respondent No. 1 is only of civil nature. The complaint has been filed to harass the petitioners and respondent No. 2. CW5/E which is reply dated 10.04.2009 to notice dated 17.03.2009. The second page of this reply is at page 65 of trial Court file. 13. The learned counsel for the petitioners has submitted that dispute raised by respondent No. 1 is only of civil nature. The complaint has been filed to harass the petitioners and respondent No. 2. On the basis of material on record, no case for summoning petitioners and respondent No. 2 under Sections 406, 420, 120-B IPC is made out. He has relied Priya Vrat Singh v. Shyam Ji Sahai, (S.C.) 2008 (2) HLR 344 , the Supreme Court has held that inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exits for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 14. There are specific allegations in the complaint and in the evidence that petitioners and respondent No.2 right from the very beginning dishonestly and fraudulently induced respondent No.1 to part with Rs. 2,00,000/- for selling the flat in question, even though the petitioners and respondent No.2 were aware that they had no right and authority to sell the flat in question to respondent No.1 as represented by them. It has been submitted by learned counsel for the petitioners that respondent No.1 even filed a suit for specific performance of contract etc. and, therefore, present complaint filed by respondent No.1 against petitioners and respondent No.2 is an abuse of the process of the Court. The documents placed on record in the petition by respondent No.1 such as plaint, written statement etc. and, therefore, present complaint filed by respondent No.1 against petitioners and respondent No.2 is an abuse of the process of the Court. The documents placed on record in the petition by respondent No.1 such as plaint, written statement etc. which are not on record of the trial Court file, therefore, cannot be considered at this stage. These can be brought on record by petitioners and respondent No.2 at appropriate stage of the criminal proceedings. The alleged contradiction in the stand of respondent whether sale consideration was Rs. 4 lac or Rs. 6 lac and its effect would be considered by the Court below, if pressed, at appropriate stage of the case. 15. In Trisuns Chemical Industry v. Rajesh Agarwal and others, (1999) 8 SCC 686 , it has been held that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. 16. The Supreme Court in R.Kalyani v. Janak C. Mehta and others, (2009) 1 SCC 516 , has held as follows:- "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 cognisable 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 criminal proceedings should not be allowed to continue." 17. In Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 , the Supreme Court has held as follows:- "12. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 17. In Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 , the Supreme Court has held as follows:- "12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 , State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 , Central Bureau of Investigation v. Duncans Agro Industries Ltd., (1996) 5 SCC 591 , State of Bihar v. Rajendra Agrawalla, (1996) 8 SCC 164 , Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., (2000) 3 SCC 269 , Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , M. Krishnan v. Vijay Singh, (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 . The principles, relevant to our purpose are: (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 the 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. (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. The test is whether the allegations in the complaint disclose a criminal offence or not." 18. It emerges from the material on record that prima facie learned Chief Judicial Magistrate has committed no error in summoning the petitioners and respondent No.2 under Sections 406, 420, 120-B IPC. There is material on record for summoning the petitioners and respondent No.2 under Sections 406,420, 120-B IPC. It cannot be said that complaint is barred by limitation. The case is at the initial stage and at this stage, it is not a fit case for exercise of inherent powers of the Court for quashing the summoning order and the criminal proceedings. There is no merit in the petition which is dismissed. The pending application, if any, is also disposed of. The parties through their Counsel are directed to appear in the trial Court on 31.05.2012.