Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 568 (JK)

Saroj Bala v. Kuldeep Singh

2013-09-20

ALI MOHAMMAD MAGREY

body2013
1. In this petition under Section 561-A Cr. P. C., the following prayer has been made: "It is accordingly prayed that the complaint lodged by respondent No. l herein against the petitioner, her husband respondent No. 2 and respondent no.3 herein, order of cognizance and all other proceedings instituted by the court of Magistrate 1st class (Sub-Judge) Jammu be quashed. Such other order or direction as this Hon'ble Court may in the facts and circumstances of the case deem fit or proper, may also be passed in favour of the petitioner." 2. The present proceedings emanate from a complaint filed by respondent No. l herein before the learned Judicial Magistrate (Sub-Judge), Jammu for offences punishable under sections 420/406 RPC. The allegations leveled in the complaint are that accused Manjeet Singh, respondent no.2 herein, executed a sale agreement dated 07.12.2006 with respondent no.3 in respect of a structure standing on land measuring 4544 SFT with dimensions 71' x 64', comprised in Khasra nos. 146 and 213/min, situate at Bund, Lambert Lane, Srinagar, in consideration of payment of Rs. 9,00,000.00. On the same day, respondent no.2 also executed a General Power of Attorney in favour of respondent no.3 with authorization to sell the aforesaid land. Thereafter, on 26.09.2007, respondent no.2 through his aforesaid Attorney, i.e., respondent no.3, executed an agreement-cum-declaration deed relinquishing the aforesaid land measuring 4544 SFT in favour of one Javaid Ahmad Zahid to the extent of 40% and three other persons, namely, Kuldeep Singh (complainant), Chowdhary Mohammad Razak and Mrs. Mini Sehgal (wife of the Attorney holder) to the extent of 60% of the aforesaid land to be shared by them equally. The land at the time of all these transaction was subject matter of litigation between respondent No. l & others on the one hand and the Government of Jammu and Kashmir on the other, wherein respondent no. 2 and others had laid a claim that in terms of Government order passed in that behalf in 1981 they were entitled to proprietorship of the land in question on payment of half of the market price. That litigation was pursued upto the Supreme Court and finally culminated into a decision in favour of respondent No. l and others. 2 and others had laid a claim that in terms of Government order passed in that behalf in 1981 they were entitled to proprietorship of the land in question on payment of half of the market price. That litigation was pursued upto the Supreme Court and finally culminated into a decision in favour of respondent No. l and others. The State Government ultimately vide order dated 08.07.2009 transferred the lease hold rights on proprietary basis in favour of respondent no.2 & others on payment of price equivalent to half of the market price of Rs. 18.00 lack per Kanal. 3. It is stated by the complainant that he alone was entitled to deposit the cost of his portion of the land pursuant to Government order dated 08.07.2009, but the accused with criminal and dishonest intention of cheating him and committing breach of trust, initially revoked the authority of the complainant by notice dated 29.07.2010 and, thereafter, deposited the price of the land (in possession of the complainant) with the Government in pursuance of Government dated 8.7.2009 on 23.8.2010 and that all this has been done by the accused with a view to dispose of their entire land, including the land which belongs to the complainant and that the accused are vigorously negotiating with the prospective buyers. It is also alleged by the complainant that it is he who had incurred the litigation expenses to the tune of Rs. 50.00 lakhs on behalf of respondent no.2 and others. 4. The learned Judicial Magistrate initially thought it expedient to postpone the issuance of process and, in order to ascertain the truthfulness or falsehood of the complaint, he referred the complaint to SP City, Jammu in terms of Section 202 Cr. P. C. for an enquiry. On receipt of the police report, the learned Magistrate, vide order dated 22.1.2011, took cognizance of the offences punishable under Sections 420/406 RPC and ordered issuance of process against the accused. On the next date of hearing fixed in the complaint, respondent no.3 herein alone appeared before the learned Magistrate. Accused No. l and 2, i.e., the petitioner and respondent no.2 herein have yet not appeared before the learned Magistrate. Petitioner has straight away come to this Court through the medium of the present petition seeking quashing of the complaint and the cognizance taken by the learned Magistrate. 5. Accused No. l and 2, i.e., the petitioner and respondent no.2 herein have yet not appeared before the learned Magistrate. Petitioner has straight away come to this Court through the medium of the present petition seeking quashing of the complaint and the cognizance taken by the learned Magistrate. 5. I have heard learned counsel for the parties, perused the trial court record and considered the matter. 6. Going by the specific statement of allegations made in the complaint, I do not think that any cognizable offence is made out therefrom. The crux of the allegations leveled in the complaint is contained in paragraph 4 of the complaint. The contents of the said paragraph are quoted hereunder: "That although the accused are in know of the rights, claims and interests of the complainant over his portion of land with respect to which he alone have to deposit the price fixed by the Government vide Govt. order dated 8.7.2009 but the accused with common criminal dishonest intention of cheating and breach of trust initially invalidly revoked the authority of complainant by serving simple legal notice and not otherwise and thereafter on 23.8.2010 by depositing the price of land presently in possession of the complainant and all this has been done by the accused with a view to dispose of their entire land including the land which belongs to complainant and now in order to deprive the complainant from his land as well as other claims the accused are vigorously negotiating with prospective buyers." 7. Firstly, there is no authority, whatsoever, placed on record executed by the accused in favour of the complainant which is alleged to have been withdrawn by the accused with dishonest intention. The legal notice addressed to the complainant and Chowdhary Mohammad Razak, copy whereof has been placed on the record of the trial court, speaks of some power of attorney executed on 17.5.2008. There is no such power of attorney placed on record. The power of attorney placed on the record is dated 7.12.2006 registered by the Sub-Registrar, Jammu, on the same day. It has been executed by accused No. l in favour of accused no.3. Therefore, once the document, which is alleged to have been revoked, does not exist, how come an offence of dishonesty can be attributed to the act of its revocation? It has been executed by accused No. l in favour of accused no.3. Therefore, once the document, which is alleged to have been revoked, does not exist, how come an offence of dishonesty can be attributed to the act of its revocation? Even assuming there was one; revocation of a power of attorney would not constitute an offence. It at best would constitute a cause of civil nature. Further, depositing the cost of the land would not constitute an offence of cheating and/or dishonesty, more so when the Government order speaks of transfer of the land in question in favour of Manjeet Singh and others. The complainant has not been induced to deliver any property. It is the specific assertion of the complainant that "in order to deprive the complainant from his land as well as other claims the accused are vigorously negotiating with prospective buyers". These words only speak of the apprehensions of the complainant, not the commission of the offences in question. In any case, I do not see that these allegations constitute or satisfy any of the ingredients of the offences of Sections 420/406 RPC. 8. The allegations made in the complainant make out a pure and simple case of civil nature. Criminal proceed cannot be initiated upon a transaction which is purely civil in nature. It is settled law that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. Reference in this connection may be made to the decision of the Supreme Court in Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 , cited and relied upon by the learned counsel for the petitioner herein. In the instant case, it is not the case of the complainant that the deception was played at the very inception. 9. Mr. M. A. Goni, learned senior counsel for the contesting respondents cited and relied upon the decision of the Supreme Court in CBI v. K. M. Sharan, 2008 (2) JT 595 in support of the proposition that the inherent powers under section 561-A Cr.P.C. have to be exercised sparingly, carefully and with great caution. 9. Mr. M. A. Goni, learned senior counsel for the contesting respondents cited and relied upon the decision of the Supreme Court in CBI v. K. M. Sharan, 2008 (2) JT 595 in support of the proposition that the inherent powers under section 561-A Cr.P.C. have to be exercised sparingly, carefully and with great caution. The learned senior counsel has also cited and relied upon the decision of the Supreme Court in P. Swaroopa Rani v. M. Hari Narayana, 2008(2) Supreme 445 ; Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn), 2009 (4) Supreme 222 . In the said cases, the Supreme Court has held that in a given case civil proceedings and criminal proceedings can proceed simultaneously and whether civil or criminal proceedings shall be stayed depends upon the facts and circumstances of each case. There can be no dispute about the law enunciated by the aforesaid judgments. These judgments are clearly distinguishable viz-a-viz the facts in the present case. 10. In light of the above, I am convinced that the cognizance taken by the learned Judicial Magistrate and issuance of process are abuse of the process of law. This petition is, accordingly, allowed. The cognizance taken by the learned Judicial Magistrate and the proceedings drawn in consequence thereof are quashed. Registry to return the trial court records alongwith a copy of this judgment to the court concerned.