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2013 DIGILAW 357 (CHH)

Renuka Gupta v. State of Chhattisgarh

2013-12-12

MANINDRA MOHAN SHRIVASTAVA

body2013
ORDER Manindra Mohan Shrivastava, J. 1. This petition under Article 226 of the Constitution of India has been filed by the petitioners praying for quashment of FIR lodged against the petitioners by respondent No. 3 as also to restrain respondent No. 2 from effecting arrest of the petitioners. The factual backdrop of event giving rise to this petition are that an agreement to sell in respect of immovable property, being open land, was executed by petitioner No. 1- Renuka in favour of respondent No. 3 Niraj on 6-7-2002. It is claimed by respondent No. 3 that under that agreement to sell, a total amount of Rs. 89,600/- was paid to petitioner No. 1 and a sale deed was to follow. However, the petitioner No. 1 did not execute any sale deed despite special request made by respondent No. 3. A notice was given on 22-5-2004 by Niraj Gupta (respondent No. 3) to Renuka (petitioner No. 1) to execute sale deed by remaining present in the office of Registrar Rajnandgaon, on 10-4-2004. However, the sale deed was not executed. Later on, respondent No. 3 came to know that instead of executing sale deed in his favour, petitioner No. 1 sold the property to one Santosh Ueky. A report was made in the police station on 22-5-2005 and a civil suit was also filed by respondent No. 3 on 5-7-2005 in the Court of First Additional District Judge, Rajnandgaon seeking a decree for specific performance of contract. The police took cognizance of the report and an offence under Section 420/34of the IPC was registered by the police of police station-Basantpur against the petitioners. According to the petitioners, this fact was known to them from the news report, whereafter this writ petition has been filed seeking quashment of FIR and criminal proceedings. 2. Learned counsel for the petitioners argued that the facts, stated in the written complaint, FIR and statement recorded under Section 161 of Cr.P.C., even if accepted as it is, do not constitute offence under Section 420 of the IPC. 2. Learned counsel for the petitioners argued that the facts, stated in the written complaint, FIR and statement recorded under Section 161 of Cr.P.C., even if accepted as it is, do not constitute offence under Section 420 of the IPC. Learned counsel for the petitioners argued that respondent No. 3 filed a civil suit against petitioner No. 1 seeking a decree for specific performance of contract, but later on, the suit has been withdrawn and instead of pursuing civil remedy available to respondent No. 3 under the law, in order to twist arm, the police machinery has been resorted to, whereas present is purely a dispute of civil nature. The allegation as stated in the complaint and the diary statement, at the most, make out a case of breach of contract and there is nothing to show mat right from the beginning and at the time of execution of agreement to sell, there was any intention to cheat. Therefore, essential ingredients of cheating as defined under Section 415 of the IPC are not made out and the institution of criminal proceedings is an abuse of process of law and an attempt of shortcut the dispute between the parties under the threat of criminal case. 3. On the other hand, learned counsel for the State argued that from the contents of written report, preliminary inquiry conducted by the police and FIR and diary statement, a prima facie case of cheating is made out. Therefore, no interference is warranted and it would be open for the petitioners to raise all defences available to them under the law in the criminal proceedings. Their defence cannot be considered at this stage. 4. Despite service of notice to respondent No. 3, he has appeared nor filed any return. 5. I have considered the rival submissions made by learned counsel for the parties and perused the records, 6. In its well known decision in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335 : AIR 1992 SC 604 ), the Supreme Court stated categories of cases by way of illustration wherein extraordinary power under Article 226 of the Constitution of India or inherent power under Section 482 of the Cr.P.C. could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, as below: "102...... (1) 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. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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. (3) Where the uncontroverted allegations made in the FIR 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. (4) Where, the allegations in the FIR 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. (5) Where the allegations made in the FIR 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. (6) 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. (7) 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". 7. (7) 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". 7. The amplitude of the power and the guiding principles for exercise of such power as laid down in the aforesaid decision have been subsequently reiterated in the plethora of decisions of the Supreme Court, some of them are-- 2000 (2) SCC 636 : ( AIR 2000 SC 754 ) (G. Sagar Suri and another v. State of U.P. and Ors.), 2000 (8) SCC 590 : ( AIR 2001 SC 137 ) (Roy V.D. v. State of Kerala), 2005 (1) SCC 122 : ( AIR 2005 SC 9 ) (M/s. Zandu Pharmaceutical Works Ltd. and Ors. v. MD Sharaful Haque and Anr.), 2006 (6) SCC 736 : 2006 AIR SCW 3830 (M/s. Indian Oil Corporation v. M/s. NEPC India Ltd., and Ors.) and so on. 8. The scope and power and limitation in the matter of quashing of criminal proceedings again came up for consideration before a larger Bench of the Supreme Court in the case of Inder Mohan Goswami and another v. State of Uttaranchal and others (2008 (1) SCC (Cri) 259 : AIR 2008 SC 251 ), wherein the principles laid down in the aforesaid decision were again reiterated by the Supreme Court while dealing with a case relating to quashing of criminal proceeding in exercise of power under Section 482 of the Cr.P.C. The Supreme Court again considered the scope and ambit of power under Section 482 of the Code in the case of Hira Lal and Ors. v. State of Uttar Pradesh and Ors. (2009) 11 SCC 89 : ( AIR 2009 SC 2380 ) in following words: "12. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide". One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide". Similar is the view taken in the case of Harmanpreet Singh Ahluwalia and others v. State of Punjab and Ors (2009) 7 SCC 712 : (2009 AIR SCW 3976). 9. The contentions raised by learned counsel for the parties are therefore required to be examined in the light of principles which have been stated and re-stated in the aforesaid decisions, in order to find out whether a case of quashing criminal proceedings constituted upon FIR is made out so as to warrant interference by this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India. 10. From the written report, FIR and diary statements, it is found that the complainant alleged cheating, and offence under Section 420/34 of the IPC has been registered by the police against the petitioners. 11. Section 420 of the IPC provides for punishment for cheating and dishonestly inducing delivery of property. "Cheating" has been defined in Section 415 of the IPC, which is reproduced as below: "415. 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 person 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". Explanation -- A dishonest concealment of facts is a deception within the meaning of this section". The ingredients and essence of cheating were examined by the Supreme Court in the matter of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), while considering whether a case for quashing FIR is made out in exercise of power under Section 482 of the Code. It was observed as under: "42. The ingredients and essence of cheating were examined by the Supreme Court in the matter of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), while considering whether a case for quashing FIR is made out in exercise of power under Section 482 of the Code. It was observed as under: "42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning". In the matter of Dalip Kaur and Ors. v. Jagnar Singh and another (2009) 14 SCC 696 : ( AIR 2009 SC 3191 ), the Supreme Court had an occasion to examine the provision contained in Section 415 of the IPC which defines the cheating. It was observed as under: "8.... An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating". In the case of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), while examining whether a case of quashing FIR is made out or not, the question which the Supreme Court posed to itself was: "38. The question before us is -- whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal? In the case of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), while examining whether a case of quashing FIR is made out or not, the question which the Supreme Court posed to itself was: "38. The question before us is -- whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467and 120B, IPC?' For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint." While undertaking similar examination in the matter of quashing of FIR, in the case of Dalip Kuar (supra), the Supreme Court stressed upon the approach required to be adopted by the High Court, in following words: "10. 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". 12. The entire allegation against the petitioners as stated in the written complaint, FIR, enquiry report and case diary statements placed on record, reveal that the allegations against petitioner No. 1 is that she entered into an agreement to sell an open land with respondent No. 3 and received consideration. Thereafter, despite repeated request of respondent No. 3, she did not execute sale deed and later on, it was found that the petitioner No. 1 sold that particular land to one Santosh Ueky. The alleged facts in the complaint are that the agreement to sell was executed on 6-7-2002. Thereafter, instead of executing sale deed in favour of respondent No. 3, a sale deed was executed in favour of one Santosh Ueky on 31-8-2003. The alleged facts in the complaint are that the agreement to sell was executed on 6-7-2002. Thereafter, instead of executing sale deed in favour of respondent No. 3, a sale deed was executed in favour of one Santosh Ueky on 31-8-2003. In the written report, FIR and case diary statements, it is nowhere stated that at the time of entering into the agreement to sell, the property was not registered in the name of petitioner No. 1 or before that date, the entire property was either sold to someone else or an agreement to sell in respect of that property was executed in favour of some other person and this fact was suppressed or that the land was already encumbered under some other transaction which was suppressed at the time of entering into agreement to sell. Therefore, in the absence of there being any material, much less the allegation that there was an intention to cheat at the very inception and beginning of the transaction, the entire allegation of fact even if taken on their face value only amounts to allegation of breach of contract and nothing more. It is extremely relevant to note that respondent No. 3 had filed a suit seeking decree of specific performance against petitioner No. 1 on 5-7-2005, but later on, did not pursue the civil remedy, obviously because respondent No. 3 thought that the civil remedy would be time consuming and, therefore, in order to shortcut, lodged report in the police station so that police could twist the arms of the petitioners. 13. It would be apt to mention what the Supreme Court has observed with regard to increasing tendency of converting civil dispute into criminal cases. In the case of G. Sagar Suri ( AIR 2000 SC 754 ) (supra), the Supreme Court observed as under: "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice". The aforesaid growing tendency was again noticed by the Supreme Court in the case of M/s Indian Oil Corporation ( AIR 2006 SC 2780 ) (supra). Again in the case of Inder Mohan Goswami ( AIR 2008 SC 251 ) (supra), the Supreme Court held as under: "37. In Indian Oil Corpn. v. NEPC India Ltd. this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors...." 14. In a recent decision in the case of Chandran Ratnaswami v. K. C. Palanisamy and Ors. (2013) 6 SCC 740 : ( AIR 2013 SC 1952 ), the Supreme Court again noted the growing tendency to resort to criminal cases rather than availing the civil remedy and deprecated the same. The Supreme Court, in the case of Rama Devi v. State of Bihar and Ors. 2011 Cri LJ 652 : (AIR 2010 SC (Supp) 83), where the accused/appellant executed sale deed in favour of the complainant in respect of a plot which had already been subject matter of previous transfer, held that if the complaint was prejudiced by the fact that the accused had executed the sale deed in his favour in respect of a plot of land which had already been the subject matter of a previous transfer, he can at best question such transfer and claim damages in respect thereof, but an action in the criminal Court would not lie in the absence of any intention to cheat and/or defraud. 15. 15. This Court is not oblivious of the legal position that merely because the allegations relating to transaction between the parties give rise to a civil action, that would not be a bar to prosecution for commission of offence. However, in the peculiar nature of the allegation made in the present case, this Court has no hesitation to hold that the case stated in the complaint only makes out a case of civil dispute, bereft of any of the ingredient of commission of offence alleged under Section 420 of the IPC. 16. In the result, the entire criminal proceedings initiated against the petitioners are held to be abuse of the process of law and merely an attempt to convert a civil dispute into a criminal action. The FIR and criminal proceedings instituted against the petitioners are therefore quashed. The petition is accordingly allowed. No order as to costs. Petition allowed.