Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1172 (RAJ)

Rokma Devi v. State of Rajasthan

2013-07-04

R.S.CHAUHAN

body2013
JUDGMENT 1. - The petitioner, Smt. Rukma Devi, has prayed for quashing of FIR No. 224/2013, registered at Police Station Chomu, Jaipur Rural for offence under Secs. 420, 467, 468, 120B IPC. 2. The brief facts of the case are that one Smt. Dhapa Devi submitted a complaint before the Metropolitan Magistrate No. 25, Jaipur Metropolitan wherein she claimed that she had sold part of her land to the petitioner, Smt. Rukma Devi. In order to pay the consideration for the land, Smt. Rukma Devi gave the complainant two cheques, namely Cheque No. 743538, amounting to Rs. 10 Lac, dated 13.11.2011, and another Cheque No. 743539, for an amount of Rs. 11 Lac, dated 28.11.2011. When the complainant submitted the cheque No. 743539 for encasement, the said cheque was not encashed by the Bank on the ground of sufficiency of fund. Consequently, the complainant sent a notice under Section 138 of the Negotiable Instruments Act ("the Act", for short) to the petitioner. However despite service of notice, the petitioner did not pay the cheque amount to the complainant. Instead the petitioner sold the not pay the cheque amount to the complainant. Instead the petitioner sold not pay the land to other co-accused persons. Thus, according to the complainant she neither has the land 27th FEBRUARY, 2014 #71 under her possession, nor has received the amount. The said complaint was sent for further investigation under Section 156(3) CrPC to the Police Station, Chomu. Upon receipt of the complaint, the police chalked out a formal FIR, namely FIR No. 224/13 for the aforementioned offences. Hence, this petition before this Court. 3. Mr. Jhabar Swami, the learned counsel for the petitioner has raised the following contention before this Court: firstly the case relates to sale of land, and to recover of money. Therefore the case is basically of "civil nature". However a case of civil nature is being given color of criminal case for ulterior motive. Secondly, by filing of FIR, the investigating agency has been used as recovery officer. Thus, filing of FIR tantamount to abuse of the process of law and of the Court. Thirdly, the complainant has already filed a criminal case for offence under Section 138 of the Act. In the said case cognizance has already been taken against the petitioner. Therefore two criminal proceedings cannot continue on the basis of the same set of facts. Thus, filing of FIR tantamount to abuse of the process of law and of the Court. Thirdly, the complainant has already filed a criminal case for offence under Section 138 of the Act. In the said case cognizance has already been taken against the petitioner. Therefore two criminal proceedings cannot continue on the basis of the same set of facts. Lastly there is no allegation in the present FIR which makes out an offence under Section 420 IPC. Hence the present FIR needs to be interfered with. 4. Heard the learned counsel for the petitioner and perused the impugned FIR. 5. It is intended trite to state that the same set of facts may give rise to a civil liability as well as to a criminal one. Merely because the case relates to the sale of property, and merely because the complainant claims that a certain amount is due to her it would not necessarily make it a case of "civil nature". After all a criminal liability punishes the intention with which the act is done. If the intention is to cheat, is to deprive a person of rightful money then a criminal proceeding can be initiated against the offender. Hence the first contention that it is a case of "civil nature" is unacceptable. 6. In the case of Rama Prakash Bhargav v. State of Raj. & Anr., S.B. Criminal Misc. Petition No. 1118 of 2013 decided on 17.4.2013 , this Court has opined as under:- "A large number of cases have started flooding this Court where apparently land deals are struck, money transactions take place yet the seller refuses to have the agreement to sell registered as a sale deed or refuses to part with the land which he had promised to sell to the buyer. Repeatedly the contention is raised before this Court that such a case is basically a case of "civil nature". Repeatedly the contention is raised that the cases of civil nature are being given colour of criminal liability but such a colouring amounts to abuse of the process of the law. Therefore the FIR should be quashed. The Court reflects the mind of the society at large. Repeatedly the contention is raised that the cases of civil nature are being given colour of criminal liability but such a colouring amounts to abuse of the process of the law. Therefore the FIR should be quashed. The Court reflects the mind of the society at large. When fraud is being played by a larger number of people when commercial transactions are being undermined and are being undone due to cleverness of people this Court has to take notice to the fact that in the garb of selling the land the buyers are being cheated and defrauded of a parcel of land which they would be entitled to under a contract. Although the case beings as a case of "civil nature" but due to mala fide intention which creeps in, the case metamorphosises itself into a "criminal" one. The object of criminal law is to control the human conduct and to keep it within legal limits. The very reason for creation of criminal lawis to ensure that the people are not cheated, are not defrauded, are not threatened and property is not trespassed by the unscrupulous persons. Such unscrupulous persons cannot be given liberty to play havoc with the lives of the innocent persons in the garb of case being of "civil nature". If such a subterfuge were allowed by the Courts and if the Courts were to turn a Nelcon's eye to the prevalent practice in the society to say the least, the Courts would fail to fulfill their fundamental duty as the protectors of lives of 97th FEBRUARY 2014 innocent persons who are defrauded and who require protection of this Court. After all the society has an inherent and instinctive sense of justice. The society demands that those who cheat and defraud the innocent persons should be booked, tried and if found guilty, to be punished. The issues whether the person had an intention to cheat, the issue as to when this intention manifested itself, the issue whether there was a mens rea of commission of offence cannot be commented upon by this Court while considering the issue whether the FIR deserves to be quashed or not. After all these are issues which need appreciation of evidence, which can be done only by the Trial Court. The Court cannot convert itself into a Trial Court in the garb of invoking its inherent jurisdiction under Section 482 CrPC." 7. After all these are issues which need appreciation of evidence, which can be done only by the Trial Court. The Court cannot convert itself into a Trial Court in the garb of invoking its inherent jurisdiction under Section 482 CrPC." 7. The another contention of the learned counsel for the petitioner that a proceeding under Section 138 of the Act and a criminal case for offence under Section 420 IPC cannot continue simultaneously, this contention is well settled now with the decision of the Apex Court in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr., 2012 (2) NIJ 40 (SC) : AIR 2012 SC 2844 . In the said case the Apex Court has opined that in fact, both the proceedings can continue, one under Section 138 of the Act, and another for offence under Section 420 IPC. Therefore, the contention raised by the learned counsel is clearly untenable. 8. A bare perusal of the FIR clearly reveals that according to' the complainant, while two cheques were given to her, one cheque, namely cheque No. 743539 for an amount of Rs. 11 lacs was dishonored on the ground of insufficiency of fund. Despite the issuance of notice, instead of repaying the amount to the complainant, the petitioner further sold the land. Thus the element of cheating is prima facie apparent. Hence prima facie the offence under Section 420 IPC is made out against the petitioner. 9. It is indeed, trite to state that at the initial stage of investigation, this Court is duty bound to accept the allegations made in the FIR as uncontroverted facts. In case, the ingredients of the offence are made out from the allegations leveled in the FIR, this Court is prevented form interfering with the FIR. 10. For the reasons stated above, this Court does not find any merit in this petition. It is hereby, dismissed. The stay application is also dismissed.Petition Dismissed. *******