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2013 DIGILAW 759 (RAJ)

Nanchu v. State of Rajasthan

2013-04-16

R.S.CHAUHAN

body2013
JUDGMENT 1. - The petitioners have prayed for quashing the FIR No. 78/2013 lodged at Police Station Harmada, Jaipur City (North) for the offences under Sections 420, 406 and 120-B IPC. 2. Briefly, the facts of the case are that the complainant had filed a complaint before the Metropolitan Magistrate No. 25, Jaipur Metropolitan, Jaipur, wherein he claimed that his father late Shri Om Prakash had entered into an agreement to sale on 29.12.2011 with regard to a land which belonged to petitioner no. 1 Nanchu. The petitioner no. 3 Birdaram Serawat had introduced his father to petitioner no. 2 Babulal Kumhar and told him that Babulal Kumhar is interested in selling his land lying in Khasra No. 80, 81, 82, 83, 84, 85, 87, 88 and 89. According to the agreement, his father was required to pay 21,61,000/- per bigha. In pursuance of the said agreement, his father paid Rs. 5 lakhs in cash to petitioner no. 1 Nanchu and gave him two cheques of Rs. 4 lakhs each. Thus, his father gave a total of Rs. 9 lakhs to the accused persons. Despite the fact that the said amount was paid and despite the requirement of the agreement that the petitioner would get the land partitioned within six days, the petitioners failed to do so. Moreover, they failed to get sale-deed registered in favour of his father. Instead they kept on asking for more money from his father. On 12.6.2012, his father again paid Rs. 1 lakh in cash to the petitioners. Despite the transactions of money, they refused to get the sale-deed registered and sold the land to other parties. The said complaint was sent for further investigation under Section 156(3) Cr.P.C. On the basis of the said complaint, the police station Harmada, registered the FIR No. 78/2013 for the offences under Sections 420, 406 and 120-B IPC. Hence, this petition before this Court. 3. Learned counsel for the petitioners has vehemently contended that the FIR has been lodged after an inordinate delay of two years. According to the complainant, the agreement to sale was entered into on 29.12.2011 and the FIR is not lodged till 5.2.2013. Secondly, the two cheques allegedly given by the complainant's father had bounced on the ground of insufficient funds. Learned counsel for the petitioners has vehemently contended that the FIR has been lodged after an inordinate delay of two years. According to the complainant, the agreement to sale was entered into on 29.12.2011 and the FIR is not lodged till 5.2.2013. Secondly, the two cheques allegedly given by the complainant's father had bounced on the ground of insufficient funds. Since the complainant's father had given two cheques knowing fully that they will not be honoured by the Bank, therefore, it is complainant's father who had cheated the petitioners. Thirdly, the entire FIR relates to a case of civil nature. Therefore, an attempt has been made to give a criminal colour to a civil dispute. Lastly, such an FIR tentamounts to abuse of process of law. 4. Heard the learned counsel for the petitioner and perused the FIR. 5. In catena of cases, the Hon'ble Supreme Court has opined that the court should take allegations made in the FIR as un-controverted facts. In case, the allegations making out the ingredients of the alleged offence, then this Court should not interfere with the FIR in his inherent jurisdiction under Section 482 Cr.P.C. 6. The issue as to what would be the impact of the delayed FIR is an issue which cannot be decided by this Court at this stage. It is a fact in issue that needs to be adjudicated by the trial court. Therefore, merely because the FIR is delayed by two years, would not ipso facto casts a doubt on the veracity of the FIR. Hence, the contention that the mere delay proves the mala fide intention of the complainant and cast a doubt on the veracity of the FIR cannot be accepted at this juncture. 7. Although, much emphasis has been laid on the point that two cheques given by the complainant's father were dishonored, the fact remains that there are also allegations that a huge amount of almost Rs. 8 lakhs was paid in cash. Despite the payment of cash, allegedly the petitioners do not get the sale-deed registered. Moreover, they have yet to return the said amount to the complainant. There are allegations which prima facie also show the existence of criminal conspiracy. However, the issue whether the criminal conspiracy does exists between the petitioners is a matter for the trial court to appreciate. Despite the payment of cash, allegedly the petitioners do not get the sale-deed registered. Moreover, they have yet to return the said amount to the complainant. There are allegations which prima facie also show the existence of criminal conspiracy. However, the issue whether the criminal conspiracy does exists between the petitioners is a matter for the trial court to appreciate. Hence, this dispute is pre-mature for this Court to comment for existence of criminal conspiracy between the petitioners. It is indeed settled principle of law that the same set of facts make a liability to civil liability as well as criminal one. Moreover, both a civil proceeding and a criminal proceeding can co-exist simultaneously. Although it may appear that a case be of civil liability as dispute is with regard to recovery of money. Simultaneously, the allegations are that the petitioners have taken cash amount, they failed to register the sale-deed, have sold the land in dispute to a third party. Therefore, they have caused a wrongful loss to the complainant and a wrongful gain to themselves. Moreover, they have committed a criminal breach of trust. Hence, the same set of facts do lead to existence of criminal liability for the offences for which the FIR has been registered. 8. Merely because the complainant is pursuing a criminal remedy against the petitioners would not convert the FIR into an abuse of the process of law, for the law itself provide two distinct remedies to the complainant. Both these remedies, the civil and the criminal are not exclusive of each other, in fact, they can be pursued simultaneously by the complainant. 9. For the reasons stated above, this court does not find any merit in the petitioner, thereby, this petition stands dismissed.Petition dismissed. *******