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Rajasthan High Court · body

2014 DIGILAW 1814 (RAJ)

Jitendra Vyas v. State of Rajasthan

2014-11-13

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner assailing the order dated 7.9.2012 passed by the learned Additional Sessions Judge No.1, Bikaner in revision whereby the revisional court affirmed the order dated 2.1.2012 passed by the learned Additional Chief Judicial Magistrate No.2, Bikaner in criminal case arising out of FIR No.56/2006 registered at the PS Sadar, Bikaner taking cognizance against the petitioner for the offences under Sections 420 and 406 IPC. 2. Facts in brief are that the complainant respondent No.2 filed a complaint in the court of the learned ACJM No.2, Bikaner which was forwarded to the Police under Section 156 Cr.P.C. It was alleged by the complainant that he had entered into an agreement to purchase 5000 sq.yards of land from the petitioner @ Rs. 560 per sq.yard vide an agreement dated 13.4.2005. As per the complainant, he paid a sum of Rs. 2 lacs as advance to the accused petitioner. The accused whilst executing the agreement depicted himself to be the absolute owner of the land in question. The complainant thereafter repeatedly requested the accused to execute a registered sale deed but noticed that the accused was evading the issue. A notice was sent to the accused for executing the sale deed but despite receipt of notice, the accused failed to comply with the terms and conditions of the agreement. 3. The Police investigated the matter and submitted a Final Report in the matter. The complainant respondent No.2 filed a protest petition and contested the negative Final Report. The complainant examined himself and some witnesses under Sections 200 and 202 of the Cr.P.C. The trial Court vide order dated 2.1.2012 rejected the negative Final Report and took cognizance against the petitioner for the above mentioned offences. The petitioner challenged the order taking cognizance by way of a revision and the revisional court too affirmed the order of cognizance and rejected the revision. Hence, this misc. Petition. 4. Shri N.S.Rathore learned counsel for the petitioner vehemently contended that no concealment was made by the petitioner whilst executing the agreement in favour of the complainant respondent No.2. It was specifically mentioned in the agreement that the petitioner had purchased the land in question from Pratap Singh through his power of attorney holder Nand Lal. Hence, this misc. Petition. 4. Shri N.S.Rathore learned counsel for the petitioner vehemently contended that no concealment was made by the petitioner whilst executing the agreement in favour of the complainant respondent No.2. It was specifically mentioned in the agreement that the petitioner had purchased the land in question from Pratap Singh through his power of attorney holder Nand Lal. He submitted that the agreement bears a specific recital that the petitioner was holding the land on the basis of an authorisation of the original khatedar Nand Lal through his power of attorney holder Pratap Singh. He, therefore, submitted that a dispute of purely civil nature where the complainant if aggrieved should have taken action by filing a suit for specific performance has been manipulated and converted to criminal proceedings for oblique motives. Learned counsel further submitted that it is the complainant, who breached the terms and conditions of the contract and failed to make remaining payment towards the agreement. On this, the petitioner sent a registered notice to the complainant to make payment of the remaining consideration by 23.5.2005 in terms of the agreement and get the sale deed registered. The complainant did not respond to the notice. The advance amount was forfeited in terms of the agreement because the complainant did not comply with his side of the agreement. Thereafter, the complainant pressurised the accused to reimburse the advance paid by him. The petitioner refused to repay the amount because it was so agreed by the complainant whilst executing the document that if the remaining sale consideration was not paid by 23.5.2005, the advance amount would be forfeited. Learned counsel thus submitted that ex-facie, no offence whatsoever is made out in this case so as to justify the order taking cognizance. 5. Per contra, Shri H.S.Shrimali the learned counsel appearing for the respondent No.2 complainant vehmently opposed the submissions advavnced by the learned counsel for the petitioner. He tried to convince this Court that the petitioner did not have any authority to sell the plot in question. He acted fraudulently and by giving a false information to the complainant, he induced him into the deal. He submitted that not only the agreement was fraudulent but thereafter, the accused also misappropriated the sum of Rs. 2 lacs paid by the complainant to the petitioner as an advance. He acted fraudulently and by giving a false information to the complainant, he induced him into the deal. He submitted that not only the agreement was fraudulent but thereafter, the accused also misappropriated the sum of Rs. 2 lacs paid by the complainant to the petitioner as an advance. Therefore, he submitted that no interference is called for in the orders passed by the subordinate courts and the misc. Petition be dismissed. 6. The question, which falls for consideration in this case is as to whether the allegations of the complainant are only in relation to the non-execution of the agreement to sale by having the sale registered or beyond that. If so, the said grievance could only have been redressed by filing a suit of specific performance of contract. The complainant rather than using the appropriate civil remedy has entangled the petitioner in this criminal prosecution. Notwithstanding the above situation, it is to be examined as to whether the petitioner fraudulently induced the complainant to enter into the agreement without having any authority to sell the land or by making a misrepresentation. The complainant did not even make a whisper of allegation in his complaint that the petitioner made any misrepresentation to him whilst executing the agreement. The agreement itself clearly recites that the petitioner was having the land on the strength of an agreement executed in his favour by Pratap Singh, the power of attorney holder of the khatedar Nand Lal Mali. Para No.2 of the agreement specifically recites that the petitioner was having the land on the strength of the agreement executed in his favour by the power of attorney holder and upon the purchaser standing by his side of the contract, the accused would get the land registered in the name of the complainant or any other person proposed by him. Thus, from a bare look at the agreement, it is evident that the accused did not give any false information to the complainant whilst executing the agreement. All relevant and material facts were specifically set out in the agreement and the complainant agreed to the terms of agreement being fully aware about the consequences ensuing therefrom. The complainant was required to make payment of the remaining sale consideration by 23.5.2005. All relevant and material facts were specifically set out in the agreement and the complainant agreed to the terms of agreement being fully aware about the consequences ensuing therefrom. The complainant was required to make payment of the remaining sale consideration by 23.5.2005. The consequential effect of the failure to make payment of the remaining consideration amount by the scheduled time i.e. 23.5.2005 is specifically mentioned in the agreement as forfeiture of the advance amount. The complainant conveniently failed to mention in his complaint as to whether he ever contacted the petitioner and offered the remaining sum of the sale consideration before 23.5.2005. He claims to have given a registered notice to the accused on 1.8.2005 but by that time, the duration of the agreement had already come to an end. In this view of the matter, ex-facie it is evident that the accused has committed no offence whatsoever. The admitted facts as set out in the complaint and the other material available on record definitely disclose a dispute of pure civil nature and nothing beyond that. The complainant as a matter of fact has misused the process of criminal law for prosecuting the petitioner in this case. 7. Consequently, the misc. petition is allowed. The order dated 2.1.2012 passed by the learned Additional Chief Judicial Magistrate No.2, Bikaner taking cognizance against the petitioner and the order dated 7.9.2012 passed by the learned Additional Sessions Judge No.1, Bikaner in revision are hereby quashed. Stay petition is disposed of.Petition allowed. *******