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2015 DIGILAW 1562 (RAJ)

Mukul Tiwari v. State of Rajasthan

2015-08-21

PRASHANT KUMAR AGARWAL

body2015
JUDGMENT 1. - Heard learned counsel for the parties. 2. The accused-petitioners have filed this criminal misc. petition under Section 482 Cr.P.C. with a prayer to quash and set aside FIR No.94/2014 registered at Police Station Mantown, District Sawai Madhopur for the offences under Sections 420, 467, 468 & 120-B IPC mainly on the ground that the dispute between the parties at the most is of civil nature to which colour of criminality has been given. It is to be noted that as per factual report dated 7.7.2015 after investigation offences under Sections 420 & 406 IPC have been found to be made out against the accused-petitioner-Shri Mukul Tiwari only and, therefore, now it is to be seen whether aforesaid offences are in fact made out against the petitioner or not. 3. Brief relevant facts for the disposal of this petition are that aforesaid FIR came to be registered on 10.3.2014 at the instance of the complainant-respondent with the allegation that the petitioner-Shri Mukul Tiwari entered into agreement to sell with the respondent with regard to disputed land in lieu of a total amount of sale consideration of Rs. 17 lacs and Rs. 1 lac was received by him as advance from respondent on 11.3.2005 and in this regard an agreement to sell was also executed between the parties and as per the terms and conditions of the agreement remaining amount of sale consideration was to be paid at the time of execution and registration of the sale deed. It was further alleged in the FIR that when the respondent visited the site, it was found by him that it is in the possession of several other persons since a long time. It was further averred in the FIR that the petitioner entered into agreement to sell with the respondent without disclosing the fact that the land in dispute is in possession of other persons. It was also stated that subsequently petitioner sold the land in dispute by way of a registered sale deed to one Smt. Hema Devi W/o Pukhraj Meena on 28.10.2013 in lieu of sale consideration of Rs. 60 lacs. 4. It was also stated that subsequently petitioner sold the land in dispute by way of a registered sale deed to one Smt. Hema Devi W/o Pukhraj Meena on 28.10.2013 in lieu of sale consideration of Rs. 60 lacs. 4. It was submitted by the learned counsel for the petitioners that even if for the sake of arguments allegations made in the FIR are accepted at their face value and are taken to be true and correct in its entirety, even then at the most it is a case of breach of contract on the part of petitioner-Mukul Tiwari, but only by that reason criminal liability of any kind cannot be fastened upon the petitioner. According to learned counsel for the petitioners for an offence to be made out under Section 420 IPC, well settled legal position is that fraudulent and dishonest intention to deceive some person on the part of the accused is to be disclosed at the time when promise or representation was made and offence under this provision cannot be made out merely because the accused failed to keep his promise or representation later on. According to the learned counsel for the petitioners, it is a pure and simple case of breach of contract of sale which does not constitute offence of criminal breach of trust or cheating. According to him for an offence to be made out under Section 406 IPC, it is essential to show that some property was entrusted to the accused and he converted it for his own use, but in the present case no such allegation has been made even by the complainant himself. It was contended that merely because the petitioner-Mukul Tiwari obtained a part of sale consideration from the complainant and failed to execute registered sale deed in his favour and rather executed a registered sale deed in favour of a third party, it cannot be said that petitioner has deceived the complainant or committed offence of criminal breach of trust. It was contended that merely because the petitioner-Mukul Tiwari obtained a part of sale consideration from the complainant and failed to execute registered sale deed in his favour and rather executed a registered sale deed in favour of a third party, it cannot be said that petitioner has deceived the complainant or committed offence of criminal breach of trust. It was also submitted that it was specifically mentioned in the agreement that the land in dispute is in possession of the petitioner and it is clear from all encumbrances and, therefore, it cannot be said that the petitioner concealed from the complainant the fact that the land in dispute is in possession of some other persons more particularly in view of the fact that no evidence is available on record showing possession of any other person. It was further submitted that the complainant agreed to purchase the land in dispute from the petitioner after satisfying herself that the petitioner is owner of the same and is in its peaceful possession and, therefore, she is not entitled to now allege that on site inspection it was found by her that it is in the possession of other persons. It was also submitted that as per the agreement dated 11.3.2005, remaining amount of sale consideration of Rs. 16 lacs was to be paid by the respondent to the petitioner at the time of execution and registration of the sale deed but the respondent took no steps for execution and registration of the sale deed for several years and, therefore, the agreement stood automatically cancelled and the petitioner became entitled to sell land in dispute to any other person. It was submitted that concerned SDO vide order dated 3.9.2013 passed in Case No.23/2012 and order dated 18.10.2012 passed in Case No.15/2012 has found that petitioner is in possession of the land in dispute and these orders can be taken into consideration even at this stage of the proceedings. In support of his submissions, learned counsel for the petitioners relied upon the cases of Md. Ibrahim & Ors. v. State of Bihar & Anr. reported in (2009) 8 SCC 751 , Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. reported in AIR 2008 SC 251 , State of Kerala v. A. Pareed Pillai & Anr. reported in AIR 1973 SC 326 , Anil Kumar & Anr. v. Ajai Butail & Anr. Ibrahim & Ors. v. State of Bihar & Anr. reported in (2009) 8 SCC 751 , Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors. reported in AIR 2008 SC 251 , State of Kerala v. A. Pareed Pillai & Anr. reported in AIR 1973 SC 326 , Anil Kumar & Anr. v. Ajai Butail & Anr. reported in 1992 Cri. L. J. 2282 and Anil Mahajan v. Bhor Industries Ltd & Anr. reported in (2006) 1 SCC (Cri) 746 . 5. On the other hand, learned Public Prosecutor assisted by the learned counsel for the complainant submitted that the present case is not simple and pure case of breach of contract giving rise to civil liability only on the part of the petitioner, but the overall conduct of the petitioner clearly shows that from the very beginning he was having fraudulent and dishonest intention to deceive the complainant as at the time of execution of the agreement it was shown that he is in peaceful possession of the land in dispute, but later on when site inspection was undertaken by the complainant it was found that the land is in possession of several other persons and, therefore, it is clear that a material fact was concealed by the petitioner at the time when the parties entered into sale transaction. It was further submitted that although remaining amount of sale consideration was agreed to be paid by the complainant to the petitioner at the time of execution of the registered sale deed, but the petitioner on one or other pretext avoided execution of the sale deed and finally without issuing notice of cancellation of agreement to the respondent sold the land to a third party by way of registered sale deed dated 28.10.2013 which fact also is clear indication that the petitioner from the very beginning was having no intention to complete the transaction although he received an amount of Rs. 1 lac as advance. It was submitted that subsequent conduct on the part of the petitioner is clear indication of criminality on his part amounting to offences under Sections 420 & 406 IPC. 1 lac as advance. It was submitted that subsequent conduct on the part of the petitioner is clear indication of criminality on his part amounting to offences under Sections 420 & 406 IPC. It was also submitted that it is well settled legal position that at the time of considering the question of quashing of FIR/complaint only prima facie has to be seen whether allegation made therein discloses essential ingredients of an offence or not and at this stage of the proceedings analysis of the allegation is not required to be made. It is also well settled legal position that for the same act of an accused civil and criminal proceeding can run simultaneously and, therefore, even if the complainant had some civil remedy available to her, it cannot be said that criminal proceedings arising from the present FIR cannot be continued. 6. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. 7. In the facts and circumstances of the case and the material made available on record and in the light of the well settled legal position, it is to be considered whether the offences under Sections 406 & 420 IPC or any of them is made out or disclosed against the petitioner-Mukul Tiwari or not.Offence under Section 406 IPC 8. For an offence to be made out under Section 406 IPC, first of all it is to be seen whether there was any criminal breach of trust as defined under Section 405 IPC on the part of the accused. As per Section 405 IPC, 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 wilfully suffers any other person so to do, commits criminal breach of trust. Thus, the first and paramount ingredient for an offence of criminal breach of trust to be made out, it is required to be shown that some property was entrusted to the accused or he having dominion over such property dishonestly misappropriated or converted for his own use that property. In the present case, it cannot be said that the amount of sale consideration paid by the complainant to the petitioner was in entrustment or the petitioner had dominion over it in any manner on behalf of the complainant. It is the case of the complainant herself that parties entered into agreement to sell and against the sale price an amount of Rs. 1 lac was paid by her to the petitioner. Thus, when the essential ingredient to make an act of an accused to be criminal breach of trust within the meaning of Section 405 is absent, the offence under Section 406 IPC cannot be said to be made out even prima facie against the petitioner and, therefore, the FIR to that extent is liable to be quashed.Offence under Section 420 IPC 9. Section 420 IPC provides that, whoever, cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and also liable to fine. It is thus, clear that for an offence to be made out under Section 420 IPC, it is to be shown that the accused cheats a person. The word "cheating" has been defined under Section 415 IPC, which provides that, 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". It is now well settled legal position that in order to constitute an offence of cheating the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act of committing cheating, but at the same time it is also well settled legal position that subsequent conduct of the accused is also a relevant factor to infer whether he had fraudulent or dishonest intention at the inception i.e. when the offence was committed. In the present case, the subsequent conduct of the petitioner as pointed out by the learned counsel for the complainant and which has already been referred above is that the petitioner on 28.10.2013 sold the land in dispute to a third party by way of registered sale deed for a sale consideration which is much higher than the sale consideration, which was to be paid by the complainant, but only by that reason it cannot be said that the petitioner from the very beginning was having a fraudulent or dishonest intention to deceive the complainant and he obtained from her money on the pretext of sale consideration against the sale of the land in dispute without any intention to sell it to her. This fact cannot be ignored that agreement to sell between the parties was executed on 11.3.2005 and the remaining amount of sale consideration of Rs. 16 lacs was to be paid by the complainant to the petitioner at the time of execution and registration of the sale deed, but no material has been filed to show that the complainant took necessary steps for execution and registration of sale deed after paying rest of the amount to the petitioner. In absence of such evidence no cheating on the part of the petitioner can be inferred merely because he subsequently sold the land in dispute to a third party. In absence of such evidence no cheating on the part of the petitioner can be inferred merely because he subsequently sold the land in dispute to a third party. So far as concealment about the fact of possession of the land in dispute is concerned, as per the agreement it was mentioned that the petitioner is in possession of the land which shows that complainant was also satisfied that the petitioner only is in possession and, therefore, she cannot be allowed now to allege that subsequently on inspection it was found by her that the same is in possession of other persons. It is the duty of the purchaser also to ascertain whether the seller is in possession of the land which he has agreed to sale to him and if the purchaser without verifying the fact of possession enters into agreement to sale he cannot be allowed later on to say that the seller concealed a material fact from him at the time when the transaction took place. Apart from that, it is clear from copy of orders filed on behalf of the petitioner that the land in dispute was in his possession only. It is thus clear that essential ingredients to make an act of an accused to be cheating within the meaning of Section 415 IPC are also absent and offence under Section 420 IPC cannot be said to be made out even prima facie against the petitioner and, therefore, FIR to that extent is also liable to be quashed. 10. Consequently, the criminal misc. petition is allowed and the FIR No.94/2014 registered at Police Station Man Town, Sawai Madhopur and subsequent investigation taken therein is quashed and set aside. In view of the order passed above, the stay application is disposed of.Petition Allowed. *******