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2015 DIGILAW 209 (JHR)

Lilawati Devi v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

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JUDGMENT :- RONGON MUKHOPADHYAY, J. 1. Heard Mr. Shailesh, learned counsel appearing on behalf of the petitioner and Mr. Vikas Kishore, learned counsel appearing on behalf of the State. No one appears on behalf of the opposite party No. 2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with C.P. Case No. 1114 of 1999 including the order dated 25.01.2001 passed by the learned Judicial Magistrate, Dhanbad by which cognizance has been taken for the offence u/s. 420/406 of the Indian Penal Code (IPC). 3. The prosecution story as would appear from the complaint petition instituted by the opposite party No. 2 herein is that the accused petitioner is the sole and absolute owner of the scheduled land given in the complaint petition and was having right, title, interest and possession over the said land since the year 1979. It was alleged that on 21.9.1996 by virtue of sale agreement, accused had sold the entire land mentioned in the schedule to the complainant on a consideration amount of Rs. 55,000/- and on that date itself the complainant paid Rs. 53,000/- to the accused. It was also alleged therein that instead of adhering to the undertaking given by the accused for registration of the land in favour of the complainant, inspite of lapse of almost 3 years, the registration was not done. It has further been alleged that a legal notice was also given to the accused and verbal requests were also made on several occasions to return back the consideration amount but the same was not acted upon by the accused resulting in filing of the complaint petition. 4. The learned counsel for the petitioner has submitted that the complaint petition does not reveal any criminal offence and the learned Judicial Magistrate, Dhanbad only in a mechanical manner without considering the fact that there are no sufficient grounds to proceed with the case, took cognizance for the offences u/s. 420/406 IPC. He has further submitted that admittedly the advance consideration amount of Rs. 53,000/- was paid to the petitioner in the year 1996 and the present complaint case has been instituted after a considerable delay of almost 3 years and no plausible explanation has been given by the complainant with respect to the delay in filing of the complaint. He has further submitted that admittedly the advance consideration amount of Rs. 53,000/- was paid to the petitioner in the year 1996 and the present complaint case has been instituted after a considerable delay of almost 3 years and no plausible explanation has been given by the complainant with respect to the delay in filing of the complaint. He has further submitted that no offence u/s. 406/ 420 IPC is made out against the petitioner. 5. Learned counsel for the State on the other hand has submitted that the petitioner had taken Rs. 53,000/- out of a total consideration amount of Rs. 55,000/- and neither did he register the land in favour of the complainant nor did he return back the advance money to the complainant which reveals an offence u/s. 406/420 IPC. 6. After hearing the learned counsel for the parties and on perusal of the records, I find that even though in the complaint petition it has been stated that the advance was given on 21.9.1996 to the tune of Rs. 53,000/- but in the Solemn Affirmation, the complainant has stated that she had given the advance in the year 1994. Apart from the said discrepancies in the complaint as well as in the statement on Solemn Affirmation by the complainant, the other noticeable fact which emerges in the present case is that the acts which has been alleged by the complainant against the petitioner is with respect to breach of the terms and conditions of the agreement for which proper recourse for the complainant was to file a suit for specific performance of contract. The complainant instead of seeking appropriate remedy before the civil court has instituted the present complaint case and in absence of any criminal intent on the part of the petitioner as would appear from the perusal of the complaint petition, no criminal proceeding with respect to the same can be allowed to be continued. The test u/s. 482 Cr. P.C. for this Court is to see whether the allegations in the complaint discloses a criminal offence or not. No doubt it is a settled law that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the complainant itself cannot be a ground to quash a criminal proceeding. No doubt it is a settled law that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the complainant itself cannot be a ground to quash a criminal proceeding. In the case of Alpic Finance Ltd. vs. P. Sadasivan and Another, 2001 (3) SCC 513 it was held as follows:- "10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under Section 420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception." 7. There is no inkling in the entire complaint petition with respect to fraudulent or dishonest inducement on the part of the petitioner or that there was an intention to cheat from the very inception. The entire allegation smacks of a civil flavour and the criminal intent which is the backbone of initiation of any criminal proceeding is conspicuous by its absence. 8. After a thoughtful consideration to the facts on the record and on the basis of what has been discussed above, I am of the view that continuation of the criminal proceeding against the petitioner would be a miscarriage of justice thereby necessitating interference by this Court by invoking the inherent jurisdiction as provided under Section 482 Cr. P.C. 9. Accordingly, this application is allowed and the entire criminal proceedings in connection with C.P. Case No. 1114 of 1999 including the order dated 25.01.2001 passed by the learned Judicial Magistrate, Dhanbad is quashed.