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2015 DIGILAW 210 (BOM)

Shyamla v. State of Maharashtra

2015-01-21

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Heard. Admit. Heard finally by consent of the parties. 2. By this application, the applicant-accused is seeking her discharge from Regular Criminal Case No. 923 of 2009 pending on the file of Judicial Magistrate, First Class, Nagpur, in which, the applicant is being prosecuted for an offence punishable under Section 420 of the Indian Penal Code. 3. Complaint against the applicant has been filed by respondent No. 2 on 15/01/2008 alleging that although the applicant had agreed to sell an immovable property belonging to her to the son of the complainant by an agreement dated 31/10/2000 and had also handed over possession of the properly to the son of the complainant, the applicant executed registered sale deed dated 14/12/2001 on 29/12/2001 in favour of one Ghanshyam Pathak, alleged to be a middleman or broker for the transaction between son of the complainant and the applicant and thus cheated son of the complainant. 4. According to respondent No. 2, execution of the registered sale deed in December, 2001 by the applicant in favour of Ghanshyam Pathak sufficiently disclosed the fact that to the knowledge of the applicant, the applicant never intended to transfer and sell her property to Kishor Shashikant Siras, son of the complainant-respondent No. 2, and she had falsely made Kishor to believe that she would be executing sale deed of the property in his favour on a subsequent date. The complaint has been lodged on 15/01/2008 and after the investigation was over, the charge-sheet was filed, presently, the case is pending at the stage of framing of charge. 5. Learned Counsel for the applicant has submitted that no prima-facie case has been made out against the applicant as the necessary ingredient of presence of dishonest intention since the date of transaction has not been established by the prosecution. In support, he has taken me through the averments made in Regular Civil Suit No. 477 of 2003 filed by Kishor Siras against the applicant and in the written statement filed in this suit by the applicant on 26/10/2004 and also the pleadings of the applicant in another suit being Regular Civil Suit No. 862 of 2004 filed by her against Ghanshyam Pathak for declaration that the sale deed dated 14/12/2001 allegedly executed by the applicant in favour of Ghanshyam Pathak is fraudulent and hence null and void. He also submits that the first information report has been filed almost after the period of six years from the date of knowledge about existence of the alleged sale deed dated 14/12/2001 and no explanation has been given in the F.I.R. about this delay, which is fatal to the prosecution case. 6. Learned Counsel for respondent No. 2 submits that the execution of sale deed dated 14/12/2001 by the applicant in favour of Ghanshyam Pathak is sufficient indicator of presence of dishonest intention on the part of the applicant since beginning of the transaction and therefore, at this stage, there is sufficient material available on record to warrant proceeding further of the prosecution case against the applicant. He submits that if the applicant-accused is submitting that sale dated 14/12/2001 has been obtained by fraud from her, it would be a matter of defence and therefore would have to be considered on merits of the case and not at this stage. He further submits that upon entire reading of the F.I.R., it can be seen that as soon as knowledge about existence of registered sale deed was gathered by the complainant, the F.I.R. has been lodged and in any case, the question of delay in filing of the F.I.R., which pertains to merits of the case, has to be considered at appropriate time when detailed evidence is available. On these grounds, he urges that the application be rejected. 7. Learned A.P.P. for the State has adopted the arguments advanced by learned Counsel for respondent No. 2 and supports the case of respondent No. 2. 8. Upon going through the F.I.R. dated 15.01.2008 and also the relevant documents as filed on record of this case, I find that there is great substance in the argument canvassed by learned Counsel for the applicant and there is no substance in the argument advanced by learned Counsel for respondent No. 2. 9. In order to make out an offence punishable under Section 420 IPC, it is well settled law that dishonest intention must be shown to be present since the beginning of the transaction and if there is a promise given by one person to another to do something, which promise that person is unable to keep most of the times it would be a simple breach of contract for which remedy lies before Civil Court. In order to make out an offence of cheating, it has to be shown that a promise is given which is known to be false to the promiser at the time of making of it and it is followed by breach of that promise. In other words, it has to be shown that something was promised to be done, though the promiser never intended to do it. Such an intention on the part of the promiser, it being relating to state of mind of a person, has to be gathered from the facts and circumstances surrounding the case. In the instant case, except for the fact that after execution of agreement dated 31/10/2000 by the applicant in favour of Kishor Siras, the applicant executed registered sale dated 14/12/2001 in favour of one Ghanshyam Pathak, there is no other attending factor or circumstance from which some inference about presence of dishonest intention since the beginning of the transaction dated 31/10/2000 present on record. But, in the facts and circumstances peculiar to this case, even the circumstance of registered sale deed subsequently executed would not help in drawing a prima-facie presumption about existence of dishonest state of mind of applicant since inception of the agreement dated 31/10/2008. 10. In the F.I.R. dated 15/01/2008 the complainant has not stated anything about the date or period of time when he obtained knowledge about registration of sale deed on 29/12/2001. He has stated that he learnt that some person had obtained no objection certificate regarding transfer of the property in question from Welcome Cooperative I lousing Society Ltd., Nagpur and some time thereafter, but before filing of the F.I.R. on 15/01/2008, he learnt that the property in question had been shown to be in possession of a person, who was mediator or broker for the transaction in between Kishor and the applicant in respect of the agreement to sale of the property in question. Therefore, the F.I.R. does not help us in ascertaining the period when the complainant may have got knowledge about the existence of registered sale deed in favour of Ghanshyam Pathak. Therefore, the F.I.R. does not help us in ascertaining the period when the complainant may have got knowledge about the existence of registered sale deed in favour of Ghanshyam Pathak. However, in the written statement filed by the applicant on 26/10/2004 in Regular Civil Suit No. 477 of 2004 for specific performance filed against the applicant by Kishor Siras, a specific averment was made by the applicant that by practicing fraud and misrepresentation, Ghanshyam Pathak, the mediator, had obtained from her signatures on certain documents and thus fraudulently got sale deed in respect of the property in question executed from her in his favour. From this specific averment, it can at least be found that the complainant had obtained knowledge about execution of the sale deed dated 14/12/2001 by the applicant in favour of Ghanshyam Pathak. Then, question would arise as to what the complainant was doing after obtaining such a knowledge and as to why did he not file immediately criminal complaint against the applicant. The complainant, however, gives no explanation. 11. After filing of the written statement on 26/10/2004 in Regular Civil Suit No. 477 of 2003. the applicant had also filed civil suit being Regular Civil Suit No. 863 of 2004 against Ghanshyam Pathak seeking declaration of sale deed dated 29/12/2001 as null and void having been obtained fraudulently from her. In this suit as well, the applicant's case was similar as her defence taken in her written statement filed in Regular Civil Suit No. 477 of 2003. It was her case that since the sale deed dated 29/12/2001 had been fraudulently obtained from her by Ghanshyam Pathak, the sale deed be declared as null and void and set aside accordingly. In the suit, it is significant to note here that the applicant has taken a specific stand to the effect that because of existence of fraudulent sale deed dated 29/01/2001, she was unable to execute the sale deed in favour of Kishor Siras, son of the complainant and to take the agreement dated 31/10/2000 to its logical end. In the suit, it is significant to note here that the applicant has taken a specific stand to the effect that because of existence of fraudulent sale deed dated 29/01/2001, she was unable to execute the sale deed in favour of Kishor Siras, son of the complainant and to take the agreement dated 31/10/2000 to its logical end. The defence so taken in the Civil Court by the applicant and the steps initiated by the applicant in order to see that the agreement dated 31/10/2000 is completed by execution of sale deed in respect of the property in question in favour of Kishor Siras, would show that there was no dishonest intention on her part since the beginning of the transaction or otherwise, there was no reason why she would file a civil suit seeking cancellation of sale deed immediately after getting knowledge about existence of the sale deed. This suit was filed by her in the year 2004, whereas criminal complaint has been filed by the respondent No. 2 in the year 2008, thereby ruling out the possibility of the applicant filing the civil suit as an afterthought and as a shield to protect herself in a criminal complaint Belated lodging of the criminal complaint without explanation for delay, rather, shows some mala-fides and spite on the part of the respondent No. 2 in the factual background of the complaint. All these facts and circumstances taken together will only show that the complaint taken at it's face value does not demonstrate that the applicant, when she entered into an agreement to sell with son of the complainant, never intended to fulfill the promise contained in the agreement to sell and with a view to deceive son of the complainant that she obtained payment of Rs. 90,000/- as entire consideration and price of the property in question. Only because some sale deed has been executed by the applicant, it cannot be inferred that the applicant was dishonest in her intention when she entered into an agreement to sell with son of the complainant. Something more is required to be shown and since that material is absent nor are there any allegations in the complaint from which an inference regarding existence of dishonest intention since beginning of the transaction can be made. Something more is required to be shown and since that material is absent nor are there any allegations in the complaint from which an inference regarding existence of dishonest intention since beginning of the transaction can be made. Therefore, I am of the view that this is a case wherein there is absolutely no material present on record sufficient to constitute, prima-facie, an offence of cheating punishable under Section420 of the Indian Penal Code. If the applicant is allowed to be tried in such a case, it would amount to abuse of process of law. All these aspects have not been appropriately considered by the learned Magistrate as well as learned Additional Sessions Judge when they rejected the plea of the applicant to discharge her from the case. In the result, this application deserves to be allowed. The application is allowed. Impugned orders dated 15/9/2010 passed by Judicial Magistrate, First Class, Court No. 6, Nagpur and dated 31/12/2013 passed by Additional Sessions Judge, Nagpur are hereby quashed and set aside. Application for discharge vide Exh. 19 is allowed. The applicant is discharged from the case and criminal proceedings against her has been closed.