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2012 DIGILAW 583 (PNJ)

Surender Sharma v. State of Haryana

2012-04-19

VIJENDER SINGH MALIK

body2012
JUDGMENT Mr. Vijender Singh Malik, J.:- Surender Sharma has brought this petition under the provisions of section 482 Cr.P.C. seeking quashing of FIR No. 81 dated 9.6.2011 registered at Police Station Ballabgarh, District Faridabad for an offence punishable under sections 406, 420, 467, 468, 471 read with section 120-B of Indian Penal Code. The brief facts necessary to be noticed to appreciate the case of the petitioner are as under:- 2. The complainant, Bhim Singh, after sale of his land, had a corpus of Rs. 11.00 crores with him. He wanted to invest the said amount in property for appreciation. Since the petitioner had been working as a property dealer at Old Faridabad and had been visiting the complainant, being his distant relation, the complainant was asked by him to invest the money in some property. The petitioner had shown him three different properties. The complainant paid a sum of Rs. 4,20,00,000/- in cash through different self cheques. The petitioner, however, did not get any sale deed executed in favour of the complainant. When the complainant pressed the petitioner for transfer of land, the petitioner executed a sale deed on 11.8.2006 in favour of the complainant in respect of the land mentioned at No.1 in the FIR for a consideration of Rs. 29,88,500/-. The petitioner did not execute any other sale deed thereafter. He rather told the complainant that the remaining land was quite costly. On this statement of the petitioner, the complainant issued him a post dated cheque for a sum of Rs. 1,00,00,000/- on the condition that the same would be encashed only on transfer of the land agreed to be sold to him. However, the petitioner came to the complainant thereafter and told him that he required to pay to some vendor an amount of Rs.70,00,000/- which is required for transfer of his land in the name of the complainant and on this representation, the complainant paid him Rs. 70,00,000/- on 5.4.2007 by way of a cheque. Still the petitioner did not execute any other sale deed. The complainant even came to know that the petitioner played a big fraud on him and had even encashed the post dated cheque of Rs. 1,00,00,000/- dated 8.12.2007 in December, 2006. The complainant later on came to know that the petitioner sold the other land subsequently to other persons. Still the petitioner did not execute any other sale deed. The complainant even came to know that the petitioner played a big fraud on him and had even encashed the post dated cheque of Rs. 1,00,00,000/- dated 8.12.2007 in December, 2006. The complainant later on came to know that the petitioner sold the other land subsequently to other persons. When the petitioner had built pressure upon the petitioner through panchayat members, the petitioner promised to return the amount of Rs. 5,61,00,000/- with interest but he did not do so and committed the offence of criminal breach of trust apart from cheating. 3. Learned counsel for the petitioner has submitted that the agreement which the complainant claims in his favour is with regard to four chunks of land. According to him, irrespective of the fact that there had been any such agreement in writing or not, the complainant has got the remedy of a civil suit for specific performance of contract of sale. He has further submitted that the entire amount paid by the complainant in cash was in respect of the land which is subject matter of the sale deed already executed by him. According to him, instead of proceeding to avail the civil remedy, the complainant has tried to take the shortest route for realization of his amount by filing a criminal case. 4. Learned counsel for the petitioner has further submitted that the FIR itself makes it apparent that the motive on the part of the complainant in lodging the same is recovery of the amount. He has further submitted that since limitation for filing suit for specific performance is over, the criminal proceedings have been initiated. 5. Learned counsel for the petitioner has placed reliance upon various decisions of Hon‘ble Supreme Court of India and this court to show that it is a case of dispute of civil nature where the remedy lies in a suit for specific performance and the criminal proceedings are abuse of process of law and the proceedings deserve to be quashed. They are reported as M/s Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others, 2005 Crl.L.J 92 (1), Dalip Kaur and Ors. Vs. Jagnar Singh and Anr., (2009)14 SCC 696, Janardhanam Prasad Vs. Ramdas, JT 2007 (3) SC 187, Ravindra Saxena Vs. They are reported as M/s Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others, 2005 Crl.L.J 92 (1), Dalip Kaur and Ors. Vs. Jagnar Singh and Anr., (2009)14 SCC 696, Janardhanam Prasad Vs. Ramdas, JT 2007 (3) SC 187, Ravindra Saxena Vs. State of Rajasthan, [2009(6) Law Herald (SC) 4190] : AIR 2010 Supreme Court 1225 and Syngenta India Limited and Ors. Vs. State of Punjab and Anr., [2008(4) Law Herald (P&H) 2644] : 2008 CRI.L.J. 2927. 6. In M/s Zandu Pharmaceutical Works Ltd.’s case (supra) the scope of inherent powers of the High Court under the provisions of section 482 Cr. P.C. have been specified. It has been laid down that the inherent jurisdiction under the aforesaid provisions may be exercised under three circumstances, namely, (i). to give effect to an order under the Code, (ii). to prevent abuse of the process of court, and (iii). to otherwise secure the ends of justice. 7. The facts in M/s Zandu Pharmaceutical Works Ltd.’s case (supra) have been that the appellant was claimed to have invited applications for the post of Area Manager and the complainant, who had applied for the said post was appointed to the post of Field Officer. For the circumstances that the complainant did not take any action immediately and that he did not claim any cheating on the part of the appellant in the suit filed by him challenging his transfer order, it was held that the complainant did not come to the court with clean hands and in such a case, the High Court can exercise its inherent jurisdiction to quash the complaint. 8. In Dalip Kaur’s case (supra), Hon‘ble Supreme Court of India has held as follows :- “12. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code.” 9. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code.” 9. In Janardhanam Prasad’s case (supra), the question was of application of period of limitation in a suit for specific performance of agreement of sale. Distinction has been drawn between the cases where any time was fixed for performance of agreement and the cases where no such time was fixed for performance of the agreement. In cases, where time was fixed for performance of agreement, it is laid down that the suit must be filed within the period of three years. However, in other set of cases, where no time for performance of agreement was fixed, it has been laid down that it was for the courts to find out the date on which the plaintiff had noticed that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter. These observations were applied to the facts of the case in para No. 11 of the judgment, which is as follows :- “11. Admittedly, father-in-law and wife of the Respondent No.1 had been looking after his affairs. They were, therefore, acting as his agents. They would be deemed to have notice of the registration of the document as also the possession of the appellant herein. If they had the requisite notice, in our opinion, the Respondent No.1., having regard thereto, should have filed a suit for specific performance of contract within the prescribed period. In fact they should have done so expeditiously having regard to the discretionary nature of relief he may obtain in the suit. They did not do so. They waited for more than two years from the date of execution of deed of sale. Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.” 10. In Ravindra Saxena’s case (supra), the matter has been of anticipatory bail. The appellant in his third application for anticipatory bail had submitted that the dispute was purely of a civil nature. In Ravindra Saxena’s case (supra), the matter has been of anticipatory bail. The appellant in his third application for anticipatory bail had submitted that the dispute was purely of a civil nature. It was held that this submission could not be brushed aside and the defence put forward by the appellant cannot be obliterated at that stage itself. It has further been laid down that the denial of bail merely because allegations pertained to cheating or forgery of valuable security or solely on the ground that challan has now been presented, was held not proper. 11. In Syngenta India Limited ‘s case (supra), the company was said to have floated a scheme whereunder dealers were awarded points instead of immediate benefits and those points could be redeemed/encashed after two years. When it came to the turn of the complainant to encash the points earned by him, the company refused to do so. Alleging malafide and dishonest intention, complaint was filed. Observing that the basic issue between the parties was recovery of dues, the allegations in the complaint made out the civil dispute and the complaint was held liable to be quashed. 12. The matter in hand is not for grant of anticipatory bail as was in Ravindra Saxena’s case (supra). The offence of cheating arises when the accused can be said to have intention to deceive the complainant from the very beginning. However, the offence punishable under section 405 IPC is different from the offence of cheating inasmuch as in the offence for criminal breach of trust, the accused gets the property in a legal way and thereafter develops dishonest intention under which he misappropriates the same or converts the same to his own use. 13. The question before me is as to whether it is a case of breach of contract or criminal breach of trust or cheating. So far as receipt of Rs. 4,20,00,000/- is concerned against which the petitioner had executed a sale deed for a consideration of Rs. 29,88,500/-, it may for some reasons be said that these facts only make out a case of breach of contract. However, when the allegation comes that in April, 2007, the petitioner approached the complainant and asked him for immediate payment of Rs. 4,20,00,000/- is concerned against which the petitioner had executed a sale deed for a consideration of Rs. 29,88,500/-, it may for some reasons be said that these facts only make out a case of breach of contract. However, when the allegation comes that in April, 2007, the petitioner approached the complainant and asked him for immediate payment of Rs. 70,00,000/- as he required the same to give it to some vendor because without payment of the same, he cannot transfer the land in the name of the complainant, it cannot be said that it amounts to breach of contract. The sale deed for a sum of of Rs.29,88,500/- had been executed on 11.8.2006. Receipt of the amount of Rs. 70,00,000/- by way of a cheque dated 5.4.2007, on this representation would clearly show that this is cheating because he had no intention to transfer any land even after receipt of this amount and, therefore, he can be said to have the intention to deceive the complainant at that time itself. The post dated cheque dated 8.12.2007 of Rs.1,00,00,000/- was given by the complainant with the express condition that the same would be encashed only on the transfer of the land agreed to be sold to the complainant. It was got encashed in December, 2006 without transferring the land. The fact of encashment of the cheque without complying with the condition aforesaid would spell out the ingredients of the offence of criminal breach of trust. 14. These facts clearly make out a case which is not covered by the facts of the reported cases and, therefore, it stands wide apart and cannot be governed by the ratio of those cases. 15. In these circumstances, it cannot be said that the case in hand is about a dispute of civil nature and that it amounts to abuse of process of court. So, the FIR in hand cannot be quashed for the reasons given by the petitioner. The petition is, consequently, dismissed. ----------------------