Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 48 (GUJ)

SAIYEAD SIRAZUDDIN KUTBUDDIN v. STATE OF GUJARAT

2014-01-16

R.M.CHHAYA

body2014
JUDGMENT 1. By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 the petitioner has prayed for quashing the complaint dated 3.7.2004 bearing Criminal Case No. 59 of 2005 as well as order dated 22.1.2013 passed by Metropolitan Magistrate, Court No.19, Ahmedabad. 2. The facts which can be culled out from the record of the petition are as under. 3. That respondent no.2 herein, filed a complaint against five persons including the present petitioner which came to be registered as Police Inquiry Case No. 40 of 2004 for the alleged offences u/s. 406, 420, 468, 471, 506(2), 294(b) and 114 of IPC. The record of the petition reveals that during the pendency of the inquiry before the learned Metropolitan Magistrate, the original accused nos.2 to 5 have expired. The complaint in question recites that the original complainant (respondent no.2) has filed the present complaint on behalf of his mother on the ground that the mother of the complainant is aged, weak and sick and therefore on the basis of special power of attorney the present complaint is filed. The complainant has stated that the mother of the complainant entered into an agreement to sell with the present petitioner and three others to purchase the land bearing survey no. 917 of village Vatva, Near Ambica Tubes, Vatva on 18.4.2004 on non judicial stamp of Rs.50/-. It is further averred in the complaint that the said agreement to sell was executed before the Notary Shri N.A. Sevak and two other persons viz. Jakirhusain Ahmedhusain and the complainant himself have attested the said agreement before the Notary. The complaint also recites other conditions of sale entered into between the parties and has averred that possession of the land in question has been handed over by the accused persons including the present petitioner to the mother of the complainant and the mother of the complainant is in possession of the land in question. The complaint also recites that after the said transaction the heirs of late Imambibi Abanmiya sent notice and thereafter have filed suit in the Civil Court being Civil Suit No.3464 of 1999. The complaint also reveals that another suit being Civil Suit No. 968 of 2002 was filed by Fatmabibi Kutbuddin after due notice. The complaint also recites that after the said transaction the heirs of late Imambibi Abanmiya sent notice and thereafter have filed suit in the Civil Court being Civil Suit No.3464 of 1999. The complaint also reveals that another suit being Civil Suit No. 968 of 2002 was filed by Fatmabibi Kutbuddin after due notice. It is contended by the complainant that after filing of the suit the complainant inquired from the present petitioner about the same. The complaint further reveals that thereafter the petitioner as well as one Nasruddin Kutbuddin Saiyad, one of the accused who expired, issued notice to the mother of the complainant denying the fact of agreement to sell dated 18.4.2004 and also amount of Rs. 5 lacs having been accepted by them as earnest money. It further recites that by such a legal notice the petitioner as well as Nasruddin denied the existence of the agreement to sell and contended that the signatures were made to approach the Municipal Corporation for de-reserving the land in question. It is further averred by the complainant that the mother of the complainant immediately filed Civil Suit No. 1485 of 2004 on 27.5.2004 before the City Civil Court, Ahmedabad and has obtained the order of 'status-quo'. It further reveals that the City Civil Court was pleased to appoint Court Commissioner and the report of the Commissioner indicates that the mother of the complainant is in possession of the same. It is further averred in the complaint that the complainant is ready and willing to comply with the order passed by the City Civil Court and is also ready to pay remaining amount of the sale price. It is also averred in the complaint that the witnesses have filed affidavit in the Civil Court stating that the banakhat dated 18.4.2004 is legal and valid. 4. In the impugned complaint it is alleged that on 15.6.2004 all the accused had intercepted the complainant, near Bibitalav, Vatva Cross Roads and used abusive language to the complainant and misbehaved with the complainant and threatened the complainant with dire consequences if the agreement to sell is not withdrawn. It is alleged that Alpesh Keshavlal Patel and Sunil L. Shah intervened and started shouting and therefore all the four accused, including the petitioner ran away. On this factual background the complainant has alleged that all the accused, including the petitioner have committed the offences as alleged. It is alleged that Alpesh Keshavlal Patel and Sunil L. Shah intervened and started shouting and therefore all the four accused, including the petitioner ran away. On this factual background the complainant has alleged that all the accused, including the petitioner have committed the offences as alleged. It may be noted that the complaint came to be filed before the learned Metropolitan Magistrate which came to be registered as Criminal Case No. 59 of 2005. It appears from the record of the petition that the learned Metropolitan Magistrate has taken statements of witnesses, the mother of the complainant and ultimately issued process as provided u/s. 204 of the Code. The record indicates that by order dated 22.1.2013 the learned Metropolitan Magistrate, Court no.19, Ahmedabad framed charge on the basis of the statements of the witnesses. It is also recorded in the order that except the petitioner other five accused have expired. It is also recorded by learned Magistrate that the complaint stands abated qua the original accused nos. 2, 3, 4 & 5. 5. Heard Mr. A.J.Memon, learned Advocate for the petitioner, Ms. Sandhya Natani, learned Advocate for respondent no.2 and Mr. Alkesh Shah, learned APP. for respondent-State. 6. Mr. Memon, learned Advocate for the petitioner has contended as under : (a) that the complaint itself is not maintainable as it is nowhere stated in the complaint that the complaint is filed on behalf of the mother as special power of attorney. (b) It is contended that power of attorney cannot depose in place of principal. (c) Even though it was contended before the learned Magistrate that the complaint and the preliminary evidence do not disclose prima facie any offences against the accused as alleged, the impugned order is passed. (d) It was contended that on the contrary it is the case of the complainant that the mother was in possession of the land in question. Therefore, even if the complaint is taken at its face value none of the ingredients of sections 405 & 415 of IPC can be culled out from the impugned complaint and hence no offence as alleged can be said to have been committed by the petitioner. Therefore, even if the complaint is taken at its face value none of the ingredients of sections 405 & 415 of IPC can be culled out from the impugned complaint and hence no offence as alleged can be said to have been committed by the petitioner. (e) It was contended that there is no delay in approaching this Court as the petitioner has approached this Court immediately after the charge came to be framed on the basis of the preliminary evidence vide order dated 22.1.2013. (f) It was contended that the impugned complaint is false, frivolous and vexatious and the same deserves to be quashed as prayed for by exercising inherent power u/s. 482 of the Code. 7. Per contra Mr. Alkesh Shah, learned APP. For respondent-State and Ms. Sandhya Natani, learned Advocate for the original complainant have contended that : (a) the present petition is filed after 9 years of the filing of the complaint and therefore on ground of delay the petition deserves to be dismissed. (b) it was contended that the preliminary evidence collected by the learned Magistrate establishes that prima facie the offences are committed by the petitioner. (c) it was contended that the learned Magistrate after considering preliminary evidence and on correct appreciation of preliminary evidence rightly passed the order dated 22.1.2013. (d) it was contended that as the complaint does disclose the offence as alleged this is not a fit case in which this Court would exercise its inherent power u/s. 482 of the Code. 8. No other and further submissions are made by the learned Counsel appearing for the respective parties. 9. As noted hereinabove, the impugned complaint relates to a transaction of sale of land belonging to the accused. The complaint clearly spells out that same relates to the alleged agreement to sell dated 18.4.2004. The complaint also recites that complainant's mother has also filed Civil Suit in the City Civil Court which is pending wherein 'status-quo' is granted. The complaint also reveals that other civil suits are also pending in relation to the land in question. It is therefore established that the impugned complaint relates to a transaction which is predominantly of a civil nature. The complaint also discloses that the dispute which is of civil nature is pending before the competent Civil Court. The complaint also reveals that other civil suits are also pending in relation to the land in question. It is therefore established that the impugned complaint relates to a transaction which is predominantly of a civil nature. The complaint also discloses that the dispute which is of civil nature is pending before the competent Civil Court. Even as per the preliminary evidence recorded by learned Magistrate it clearly bornes out that it relates to the land transaction for which the civil suit is already pending. On bare reading of the complaint itself it further transpires that mother of complainant no.2 as per version of the complaint based upon Commissioner's report is in possession of the land in question. In view of these facts therefore, it cannot be said that the petitioner accused was interested with some property or with dominion or power over it. Considering the fact that even according to the complaint mother of the complainant is in possession of the land in question which belongs to the accused. In light of such facts, it cannot be said that there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of law or legal contract by accused itself or by someone else which he willingly supposed to do. Only because the petitioner has challenged the validity of the alleged banakhat by issuing notice which is subject matter of the suit it cannot be said that the petitioner has committed criminal breach of trust and/or that the petitioner has committed offence of cheating. The learned Magistrate has overlooked this fact while passing the impugned order dated 21.1.2013. Similarly even if the FIR is taken as its face value none of the ingredients of section 468 or sections 471 and 294(b) or section 114 of IPC is made out. As far as the allegation for the alleged offence u/s. 406(2) of IPC is concerned, the preliminary evidence which is collected on the basis of statement made by witnesses also does not inspire any confidence. As far as the allegation for the alleged offence u/s. 406(2) of IPC is concerned, the preliminary evidence which is collected on the basis of statement made by witnesses also does not inspire any confidence. The facts which can be culled out from the impugned complaint as well as the record of the petition indicate that the same relate to purely a civil transaction of sale between the mother of the complainant and the accused which is the subject matter of civil suit and therefore the impugned complaint does not disclose prima facie any offence u/s. 406, 420, 468, 471, 506(2), 294(b) and 114 of IPC. 10. Mr. Memon, learned Advocate for the petitioner has rightly contended that there is no delay in approaching this Court by way of this petition, though the complaint is filed in 2005 and the charges came to be framed against the present petitioner by order dated 22.1.2013 and as such there is no delay in approaching this Court. On bare reading of the complaint it transpires that the complainant has converted purely a civil dispute into criminal case having already resorted to civil proceedings. The complaint even if is taken on its face value lacks the basic ingredients of criminal breach of trust i.e. entrustment and also lacks basic ingredients of cheating and any other offence as alleged. 11. At this juncture, it would be advantageous to refer to the judgment of this Court in the case of Prakash Ramchandra Barot Vs. State of Gujarat & Anr. reported in 2012(1) GLR Pg.449, in para 22 to 27 this Court observed as under : “22. I may now consider whether the allegations in the complaint make out a case of 'criminal breach of trust' as defined under Section 405 of IPC. The section reads as follows :- "405. State of Gujarat & Anr. reported in 2012(1) GLR Pg.449, in para 22 to 27 this Court observed as under : “22. I may now consider whether the allegations in the complaint make out a case of 'criminal breach of trust' as defined under Section 405 of IPC. The section reads as follows :- "405. Criminal breach of trust.-- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'.” According to the Section, a 'criminal breach of trust' involves the following ingredients :- “(a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust." Taking into consideration the necessary ingredients to constitute an offence of 'criminal breach of trust', no case at all is made out by the first informant. If the dispute relates to the title of the land in question and if two sides claim to be the owner, then there is no question of any entrustment of the property or dominion over the property. It is not even the case of the first informant that the land in question was entrusted to the accused persons and they had dominion over the land and they have dishonestly misappropriated the same or converted it to their own use. 23. In the case of Onkar Nath Mishra v/s. State (NCT of Delhi), reported in (2008)2 SCC 561 , a Bench of two Judges of the Supreme Court observed that two distinct parts were involved in the commission of the offence of criminal breach of trust. 23. In the case of Onkar Nath Mishra v/s. State (NCT of Delhi), reported in (2008)2 SCC 561 , a Bench of two Judges of the Supreme Court observed that two distinct parts were involved in the commission of the offence of criminal breach of trust. The first part consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is the misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. Therefore, in relation to the offence under Section 405 IPC, the first ingredient that needs to be established is “entrustment”. In Common Cause v/s. Union of India, reported in (1999)6 SCC 667 , the Supreme Court held that :- “... A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.” 24. Now I may come to Section 420 of IPC. Section 415 of IPC deals with 'cheating' and reads as follows: "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." It is plain from a bare reading of the Section that to hold a person guilty of cheating, as defined in Section 415 of the IPC, it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do some thing which he would not otherwise do. 25. 25. The ingredients required to constitute an offence of cheating have been succinctly laid down in Ram Jas Vs. State of U.P., reported in (1970)2 SCC 740 as follows: “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property." 26. Similar views were echoed in Medchl Chemicals & Pharma (P) Ltd. v/s. Biological E. Ltd. & Ors., reported in (2000)3 SCC 269 , wherein it was observed that: "In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill the promise by itself would not attract the provisions of Section 418 or Section 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact Illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract...." 27. It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently” 12. In case of State of Haryana and others Vs. Ch.Bhajanlal, reported in AIR 1992 SC 604 , in para 108 the Apex Court has observed thus : “108. In case of State of Haryana and others Vs. Ch.Bhajanlal, reported in AIR 1992 SC 604 , in para 108 the Apex Court has observed thus : “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 F. I. R. 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 F.I.R. 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 F.I.R. 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. 5. Where the allegations made in the F.I.R. 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.” The ratio laid down by the Apex Court in the case of State of Haryana and others (supra) and the ratio laid by this Court in the case of Prakash Ramchandra Barot (supra) squarely apply to the present case. 13. It may be noted that the impugned complaint is filed by respondent no. 2 in his name. In para 2 of the complaint it is mentioned that he has filed this complaint on the basis of special power of attorney executed by his mother. However, in view of the fact that this Court is of the opinion that the impugned complaint does not disclose prima facie any offence as alleged and the civil transaction has been twisted into criminal complaint, the aspect whether the complainant (respondent no.2) was competent to file the complaint is not required to be gone into in this matter. 14. In light of the aforesaid discussion, therefore, it transpires that the impugned complaint does not prima facie disclose any offences u/s. 406, 420, 468, 471, 506(2), 294(b) and 114 of IPC and therefore any further continuance of the proceedings in pursuance to the impugned complaint as well as consequential proceedings and so also order dated 22.1.2013 passed by learned Metropolitan Magistrate (Court no.19), Ahmedabad would amount to abuse of process of Court and law and therefore in order to secure the ends of justice, this is a fit case for exercise of inherent power u/s. 482 of the Code. 15. Resultantly the petition is allowed. 15. Resultantly the petition is allowed. The complaint registered as Criminal Case No. 59 of 2005 pending before the Court of Metropolitan Magistrate, (Court No.19), Ahmedabad and subsequent proceedings arising out of the said complaint as well as order dated 22.1.2013 passed by Metropolitan Magistrate (Court No.19), Ahmedabad are hereby quashed. The observations made in this judgment are limited to this petition only and the Civil Courts shall not be influenced by the same while deciding the pending suits. Rule is made absolute accordingly.