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2012 DIGILAW 343 (JHR)

Veer Krishna Sahay v. State of Jharkhand

2012-03-06

R.R.PRASAD

body2012
JUDGMENT By Court.-This application has been filed under Section 482 of the Code of Criminal Procedure for quashing of the entire criminal proceeding of Complaint-cum-Protest Case No. 2763 of 2008 including the order dated 18.12.2010/20.12.2010 whereby learned Judicial Magistrate, Ranchi having found prima facie case being made out against the petitioner of the offences punishable under Sections 417, 418 and 406 of the Indian Penal Code was pleased to summon the petitioner to face trial. 2. Before coming to the case of the prosecution certain facts, disclosed in the petition, which will have beating upon the prosecution case, need to be stated. 3. According to the petitioner, 33 kathas of land bearing M.S. Plot No. 1480, appertaining to Holding No. 1186-B, situated in Ward No. 17 (new) at 70, S.K. Sahay Road, Circular Road, P.S. Lalpur, Ranchi fell to the share of the petitioner and his sister-in-law (bhabhi)-Smt. Madhur Sahay in a family partition. Thereupon, the petitioner entered into a development agreement with opposite party No. 2 for constructing a multi-storeyed building. While construction was going on District Administration raised objection over the construction, as the same was going on over the land which is a khas mahal land and hence direction was issued to stop the construction. That order was challenged by the petitioner as also by the opposite party No. 2 jointly before the Patna High Court (Ranchi Bench) vide C.W.J.C. No. 2795 of 1999R. The said application was admitted for hearing and an interim order was passed directing the respondent-State not to interfere with the peaceful enjoyment of the property, in question. In course of time, when opposite party No. 2 failed to hand over the share of the petitioner, the petitioner invoked arbitration clause and thereby this Court appointed a retired Judge of the Patna High Court as sole Arbitrator to adjudicate the dispute, which has arisen in between the parties. 4. Learned Arbitrator vide its award dated 31.10.2004 directed the opposite party No.2 to strictly adhere to the terms and conditions of development agreement including handing over the flat, in question with parking space to the petitioner. The said award was challenged by the opposite party No. 2 before the Sub-Judge, Ranchi by filing Misc. Case No. 01 of 2005 which got dismissed on 7.9.2005. The said award was challenged by the opposite party No. 2 before the Sub-Judge, Ranchi by filing Misc. Case No. 01 of 2005 which got dismissed on 7.9.2005. However, that order was challenged before this Court in Arbitration Appeal No. 15 of 2005 which also got dismissed on 14.6.2007. The order passed by this Court in Arbitration Appeal was challenged by the opposite party No.2 before the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 11368 of 2007 which met the same fate as it was dismissed by the Hon’ble Supreme Court on 23.7.2007. 5. In spite of losing the case upto the Hon’ble Supreme Court, the opposite party No. 2 neither did hand over the possession of the flats, in question, to the petitioner nor made payment of certain decreetal amount, as had been ordered by the Arbitrator and, therefore, the petitioner brought an Execution Case No.3 of 2005-A before the Sub-Judge-VI, Ranchi for realization of the amount of Rs. 18,22,400/- which the opposite party No. 2 was supposed to pay to the petitioner in terms of the award. A direction was given by the Executing Court to opposite party No.2 to pay the aforesaid decreetal dues. Thereupon, on 13.9.2007 an application was filed by the opposite party No.2 stating therein that the funds for payment of the said amount can be raised by registering the deeds of transfer in favour of flat purchasers, for which a power of attorney was required and hence the petitioner be directed to execute a deed of power of attorney in his favour and if it is done, he would be furnishing the bank guarantee for payment of dues of the petitioner. 6. In compliance of the said statement, the petitioner submitted a draft copy of power of attorney before the Executing Court on 12.12.2007. On 16.2.2008, two objections were raised on behalf of the opposite party No.2; first one was that there has been no mentioning of the car parking and the other one was that Flat No. 607 should be included in the power of attorney. One objection, raised in respect of car parking, was accepted, whereas the other objection was rejected. At the same time, certain information was sought from the registering authority with respect to formalities being observed for registration of power of attorney. One objection, raised in respect of car parking, was accepted, whereas the other objection was rejected. At the same time, certain information was sought from the registering authority with respect to formalities being observed for registration of power of attorney. On receiving necessary information, the Executing Court vide its order dated 1.3.2008 directed the opposite party No.2 to furnish bank guarantee to the tune of Rs. 18,22,400/-. 7. Being dissatisfied with the said order, opposite party No.2 challenged that order before this Court in W.P. (C) No. 1818 of 2008. That writ petition was dismissed on 25.10.2008. After dismissal of said writ petition, opposite party No. 2 filed a civil review application bearing Civil Review No. 106 of 2008 which was not only dismissed but a cost of Rs. 25,000/- was imposed upon the opposite party No.2. Thereafter, opposite party No. 2 challenged the orders passed in the writ petition as well as in the civil review application before the Hon’ble Supreme Court but again it was dismissed. 8. After the order was passed on 1.3.2008 directing the opposite party No. 2 to furnish bank guarantee, the opposite party No.2 on one hand challenged that order before this Court and on the other hand lodged a First Information Report on 15.5.2008 alleging therein that pursuant to the order passed by the Executing Court, when power of attorney was filed, it could be detected that the land, in question, is not in the name of the petitioner only, rather it is in the name of six persons. On such allegation, a case was registered as Lalpur P.S. Case No. 89 of 2008 under Sections 406 and 420 of Indian Penal Code. 9. The police having investigated the case came to the conclusion that when opposite party No. 2 lost the case upto the Hon’ble Supreme Court filed the criminal case which is tainted with malice and as such, final form was submitted exonerating the petitioner from accusation. At the same time, it was opined that a complaint be lodged against the opposite party No. 2 for commission of the offence punishable under Sections 182/211 of Indian Penal Code. Upon submission of final form, a protest petition was filed by the opposite party No.2. However, final form was accepted but at the same time, it was ordered that the protest petition be treated as complaint. 10. Upon submission of final form, a protest petition was filed by the opposite party No.2. However, final form was accepted but at the same time, it was ordered that the protest petition be treated as complaint. 10. The case, which has been made out in the complaint, in brief, is that when the Executing Court directed the petitioner to get the power of attorney registered, the opposite party No. 2 did inspect the record in the office of the Circle Officer and found that the land, in question, stands in the name of five persons, whereas the petitioner had suppressed this fact at the time of entering into development agreement. Upon holding enquiry, cognizance of the offences punishable under Sections 417, 418 and 406 of Indian Penal Code was taken against the petitioner vide order dated 18.12.2010/20.12.2010, which is under challenge. 11. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner, submits that admittedly the complainant-opposite party No. 2 had entered into an agreement with the petitioner to develop the land and to construct a multi-storeyed building over 33 katthas of land. Accordingly, opposite party No. 2 proceeded with construction of the building. On completion of the construction, when opposite party No. 2 failed to hand over flats coming to share of the petitioner (the owner) dispute arose as a result of which, arbitration clause was invoked by the petitioner, whereby the dispute was referred to before the Arbitrator and the Arbitrator gave award directing the opposite party No.2 to adhere to the terms and conditions of the development agreement. 12. That order was challenged before this Court where opposite party No. 2 lost the case and when he preferred Special Leave to Appeal (Civil) before the Hon'ble Supreme Court, it was also dismissed. 13. Learned counsel by referring to the facts, mentioned above, submitted that when the opposite party No.2 lost the case upto the Hon'ble Supreme Court not once but twice, he has now brought a criminal case by taking plea that the petitioner had entered into an agreement to develop the land, to which he is not the sole owner, rather other co-sharers are also the owners, but at the time of entering into an agreement, he never disclosed this fact. The ground, on which opposite party No. 2 is seeking prosecution of the petitioner, had also been raised before this Court in the cases, referred to above, where he lost and as such, it can easily be said that the criminal proceeding is manifestly attended with mala fide which has been instituted with ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge and hence, in view of the decision laid down in a case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, entire criminal proceeding including the order taking cognizance is fit to be set aside. 14. As against this, Mr. Rajesh Kumar, learned counsel appearing for the opposite party No.2, submits that whatever cases were fought by the opposite party No. 2 upto the Hon'ble Supreme Court, those cases have nothing to do with the criminal offence, as the criminal case has been lodged for the reason that the petitioner at the time of entering into the development agreement never disclosed that the land, in question, over which multi-storeyed building, as per agreement was constructed, belongs to other family members also and that the petitioner is never the absolute owner of the land. rather it is a khas mahal land and this fact has also not been disclosed at the time of entering into agreement and that power of attorney, executed by the petitioner pursuant to the order passed by the Executing Court, has been cancelled by the Deputy Commissioner, Ranchi for the reason that the land never belongs to the petitioner, rather it is a Khas Mahal land and under the situation, the case, under which cognizance of the offences has been taken, is certainly made out in spite of the fact that civil proceeding was fought out by the parties upto the Hon'ble Supreme Court. 15. Having heard learned counsel for the parties and on perusal of the records, it does appear that the allegation, upon which criminal case has been lodged, had earlier been raised on behalf of the opposite party No.2 before different Forums including the High Court and the Hon'ble Supreme Court. 16. It would be worthwhile to note here that when construction got started, District Administration took objection over the construction on the ground that the land pertains to khas mahal. 16. It would be worthwhile to note here that when construction got started, District Administration took objection over the construction on the ground that the land pertains to khas mahal. Being aggrieved with the action taken by the District Administration, both, the petitioner as well as the opposite party No.2, challenged the action of the District Administration before the Patna High Court (Ranchi Bench) vide C.W.J.C. No. 2795 of 1999-R wherein an interim order was passed directing the respondent-State not to interfere with in any manner with the peaceful enjoyment of the property in question. Subsequently, when the Executing Court in order to execute the award passed an order directing the opposite party No. 2 to furnish bank Guarantee to the tune of Rs. 18,22,400/-, it was challenged before this Court vide W.P. (C) No. 1818 of 2008 taking plea that the executing Court without deciding the objections taken with respect to execution of power of attorney directed him to furnish bank guarantee and as such he has committed gross illegality. That plea did not find favour by this Court and, accordingly, the said writ petition got dismissed on 25.10.2008. Much thereafter, a Civil Review bearing No. 106 of 2008 was filed seeking review of the said order on the ground that the Deputy Commissioner has cancelled the power of attorney and as such, the opposite party No. 2 is not in a position to furnish the bank guarantee or to pay the decreetal dues. The said application was again dismissed vide order dated 3.3.2009. Relevant part of the said order needs to be quoted hereinbelow:- "5. As per the Award dated 31.10.2004, the petitioner was/is required to pay Rs. 18,22,400/- to the opposite party. The Award became final between the parties up to the Supreme Court. The petitioner was directed to pay the decreetal dues. It prayed for sometime to pay the same, but it delayed such payment and then expressing difficulty raised a plea that it is ready to furnish Bank Guarantee for payment to the dues to the D. Hr., if the D. Hr. executed the power of attorney, so that the petitioner could raise funds by executing and registering deeds of transfer in favour of flat purchasers. Such request was graciously accepted by the opposite party. executed the power of attorney, so that the petitioner could raise funds by executing and registering deeds of transfer in favour of flat purchasers. Such request was graciously accepted by the opposite party. Then it appears that the petitioner started raising other objections with regard to execution of power of attorney by the opposite party. Such objections were turned down by the Court below as well as by this Court in the connected W.P.(C) No. 1818 of 2008. Now the petitioner is expressing purported difficulty in executing the Bank Guarantee or payment of decreetal dues under the pretext that the Deputy Commissioner has cancelled the power of attorney. Petitioner also took a plea in the executing Court that it is ready to furnish Bank Guarantee provided it was ensured that the same was not encashed by the D. Hr. unless the power of attorney was allowed to be acted upon. Such prayer was refused by the executing Court. Ultimately on 3.2.2009, the executing Court held that the petitioner has been taking one plea or the other to avoid the furnishing of Bank Guarantee right from the day it was directed to do so. The learned Court below rejected the prayer for further time for furnishing Bank guarantee and directed the petitioner to remain physically present in Court for necessary orders. 6. In the facts and circumstances, noticed above, it is absolutely clear that under the Award in question, the petitioner was required to pay the decreetal amount to the opposite party. There was nothing in Award about furnishing Bank Guarantee and execution of power of attorney, etc. It was the petitioner, who expressed difficulty in paying the decreetal dues and offered that it will furnish Bank Guarantee etc. Only because the D. Hr. graciously accepted such request of the petitioner, it cannot be said that the Award stood modified to the said extent. The petitioner is bound to pay the decreetal dues to the opposite party as per the Award, which became final, between the parties up to the Supreme Court, long back. The execution of power of attorney or cancellation thereof by the Deputy Commission cannot stands in the way of execution of decree under the Award against the petitioner. I am constrained to observe that the petitioner has been abusing the process of law by raising frivolous and vexatious objections and pleas for delaying payment of decreetal dues. The execution of power of attorney or cancellation thereof by the Deputy Commission cannot stands in the way of execution of decree under the Award against the petitioner. I am constrained to observe that the petitioner has been abusing the process of law by raising frivolous and vexatious objections and pleas for delaying payment of decreetal dues. 7. In the result this Civil Review application is dismissed with cost of Rs. 25,000/- payable by the petitioner to the respondent in the executing Court within four weeks from today." 17. Thus, it appears that the ground, on which criminal case had been lodged, had earlier been agitated but when it did not find favour, opposite party No. 2 got a criminal case instituted. Therefore, under these circumstances, it can easily be said that the criminal proceeding is manifestly attended with mala fide which has been instituted with ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge which is one of the grounds set out in the case of Bhajan Lal (supra) for quashing of a criminal proceeding. 18. Looking to the case from another angle, it has now to be considered whether the allegation made in the complaint constitutes any offence of cheating punishable under Sections 406, 417 and 418 of Indian Penal Code. 19. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows: "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 persons 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'." 20. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him. (2)(a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property, or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 21. Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating cannot be made out. After deception has been practiced, the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the said principle in context of the allegations made in the complaint it does appear that first element of deception constituting an offence of cheating is lacking as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioners in any manner. 22. So far offence under Section 406 of Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. 22. So far offence under Section 406 of Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined under Section 405 of the Indian Penal Code which reads as follows:- "Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'." 23. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. "(a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust." 24. In the background of the allegation, none of the ingredients appears to be there. Therefore, offence punishable under Section 406 of Indian Penal Code does not get attracted. 25. At this stage, it be recorded that if the fact constitutes civil liability as well as criminal liability, then the remedy being available for civil law cannot be a ground for quashing the criminal proceeding which proposition of law has been laid down by the Hon'ble Supreme Court in a case of Indian Oil Corporation v. NEPC India Limited and others, 2006 (4) East Cr C 22 (SC) : (2006) 6 SCC 736 , but at the same time, it has also been observed by the Hon’ble Supreme Court in the said case that there is a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such tendency is seen in several family dispute also leading to irretrievable brake down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is likelihood in imminent settlement. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. 26. Thus, regard being had to the facts and circumstances, instant criminal proceeding is manifestly attended with malafide and hence, on this ground as also on the ground as stated above, entire criminal proceeding of Complaint-cum-Protest Case No. 2763 of 2008 including the order dated 18.12.2010/20.12.2010 taking cognizance of the offence under Sections 417, 418 and 406 of Indian Penal Code is hereby quashed so far the petitioner is concerned. 27. In the result, this application is allowed. Application allowed.