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2016 DIGILAW 1179 (RAJ)

Mukesh v. State of Rajasthan

2016-08-12

P.K.LOHRA

body2016
JUDGMENT : Mr. P.K. Lohra, J. 1. Accused petitioners, by this misc. petition, have invoked inherent powers of this Court under Section 482 Cr.P.C. for quashing FIR No.238/2016, registered at Police Station, Pratap Nagar, District Bhilwara. In the impugned FIR, the respondent-complainant has alleged offence under Section 406, 420 and 120B IPC against the petitioners. 2. Succinctly stated, the facts of the case are that respondent No.2, complainant, filed a criminal complaint against the petitioners before Chief Judicial Magistrate, Bhilwara (for short, 'learned trial Court'), alleging offence under Section 406, 420 and 120-B IPC. In the complaint, it was alleged by the complainant that two incumbents; viz., Mukesh s/o Kanwar Lal and Sanjay s/o Jagdish Jagetiya, who are petitioners No.1 and 2, having close acquaintance with him, came to his house with other accused petitioners and gave an offer for purchasing ?rd share of their land measuring 6 bighas in Khasra No.5607/2 situated at the bank of patwar area, Tehsil and District Bhilwara, for a consideration amount of Rs. 40,60,000/-. It was also averred in the complaint that while acceding to the proposal of petitioners No.3 to 7, he agreed to purchase ?rd share of the said agriculture land and sale-deeds were registered on 13th of December 2011 and 10th of February 2012 respectively. Specific allegation is made in the complaint that the vendors, i.e. petitioners No.3 to 7, assured him that as and when he will develop a colony on the land in question, they will accompany him for measurement of the land. Similarly, for the adjacent land of Khasra No. 5807/1 ad-measuring 2 bighas 4 biswas, petitioners No. 8 and 9 sold land of their 5/7 share and for Khasra No.5952/5607 land ad-measuring 5 bighas 19 biswas, 5/7 share for consideration amount of Rs.42 lacs. The sale-deed of the aforesaid land was also registered by petitioners No.8 and 9 in his favour on 13.12.2011. The complaint further reveals that when the complainant called surveyor for preparing lay out plan and land was measured, the land available at the site was 4 bighas 9 biswas instead of 7 bighas 13 biswas. The sale-deed of the aforesaid land was also registered by petitioners No.8 and 9 in his favour on 13.12.2011. The complaint further reveals that when the complainant called surveyor for preparing lay out plan and land was measured, the land available at the site was 4 bighas 9 biswas instead of 7 bighas 13 biswas. With these positive assertions, it is stated in the complaint that when the complainant brought this fact to the notice of petitioners, he was assured by the petitioners that they will repay the consideration amount of the land measuring 3 bighas and 4 biswas which is not available at the site but despite assurance, as per complainant, the amount was not paid by the petitioners for 3 bighas and 4 biswas land and as such they have cheated him and the committed the aforesaid offences. 3. The learned trial Court sent the complaint for investigation to the police under sub-section (3) of Section 156 Cr.P.C. On receipt of the complaint, FIR No.238/2006 is registered at Police Station Pratap Nagar, District Bhilwara and investigation is going on. In order to challenge FIR, it is pleaded in the petition that entire story narrated in the complaint is based on concocted and fabricated facts and same is contrary to the recitals of the sale-deeds. It is also averred in the petition that investigation is being conducted by police in collusion with the complainant. Precisely, the petitioners have challenged the FIR with specific plea that the FIR is not disclosing any cognisable offence against them. In order to substantiate their plea, the petitioners have also submitted in their petition that after sale transaction the land was mutated in the name of complainant and the same has also been converted after requisite proceedings under Section 90-B of the Rajasthan Land Revenue Act. With all these assertions, petitioners have categorized the FIR as frivolous, vexatious and oppressive and craved for quashing the same by exercising inherent powers. 4. At the threshold, when the matter came up before the Court on 4th of July 2016, the counsel for the complainant appeared and on that day learned Public Prosecutor was asked to produce case diary in the matter. 5. Before producing the case diary, learned Public Prosecutor also submitted factual report dated 18th of July 2016 to show progress in investigation. 6. 5. Before producing the case diary, learned Public Prosecutor also submitted factual report dated 18th of July 2016 to show progress in investigation. 6. The learned counsel for the petitioners has argued that bare reading of FIR makes it abundantly clear that it is not disclosing offence under Section 420 and 406 IPC. Learned counsel would contend that originally agriculture land was sold to the complainant and later on order under Section 90-B of the Land Revenue Act was also passed, clearly goes to show that there is no discrepancy in the measurement of the land sold by the petitioners to the complainant so as to make out offence under Section 420, 406 IPC. Learned counsel for the petitioners further submits that FIR has been lodged after six years and therefore it is a fit case wherein inherent powers are to be exercised for quashing the same. In support of his arguments, learned counsel for the petitioners has placed reliance on a decision of Supreme Court in Rajiv Thapar and Ors. v. Madan Lal Kapoor (2013 AIR SCW 784). 7. Per contra, learned Public Prosecutor submits that during investigation it has revealed that land measuring 7 bighas 13 biswas is not available at the spot and this fact was within the knowledge of the petitioners yet without disclosing this material fact, petitioners have entered into sale transaction with the complainant and therefore offence under Section 420 and 406 IPC is made out against them. Learned Public Prosecutor has vehemently argued that the investigating agency has made sincere endeavour to take measurement of the land and thereupon it is unearthed that land available at the site is less than shown in the revenue record and in fact land available at the site is falling short of 3 bighas 4 biswas in comparison to the sale-deeds. Learned Public Prosecutor has urged that the 90-B order was made on the basis of revenue record and therefore the same cannot be cited as a mitigating circumstance so as to absolve the petitioners from their offence of criminal breach of trust and cheating within the four corners of Section 406 and 420 IPC respectively. Learned Public Prosecutor further submits that the accused petitioners have dishonestly induced the complainant for delivery of property and therefore it is not a case wherein inherent powers can be exercised for quashing the FIR. 8. Learned Public Prosecutor further submits that the accused petitioners have dishonestly induced the complainant for delivery of property and therefore it is not a case wherein inherent powers can be exercised for quashing the FIR. 8. Learned counsel for the complainant, Mr. Sunil Mehta, submits that a bare reading of FIR and its meaningful consideration makes out a case of criminal breach of trust and cheating by the petitioners. Learned counsel further submits that the recitals contained in the FIR are clear and unequivocal so as to disclose commission of cognisable offence by the petitioners and therefore present one is not a fit case wherein inherent powers are to be exercised for quashing the FIR. In support of his arguments, learned counsel for the complainant has placed reliance on a decision of Supreme Court in Teeja Devi alias Triza Devi v. State of Rajasthan [ (2014) 15 SCC 221 ] and order passed by this Court on 19th of July 2016 in S.B. Criminal Misc. Petition No.1513 of 2016 with two other connected petitions. 9. I have heard learned counsel for the petitioners, learned Public Prosecutor as well as learned counsel for the complainant and thoroughly scanned the case diary with factual report. 10. In order to examine the sustainability of the challenge to impugned FIR, it is imperative for this Court to examine threadbare the recitals of the FIR. A bare reading of FIR makes it explicitly clear that sale transaction in the form of three different sale deeds has taken place between respondent No.3 to 9 and the complainant and as per the sale deeds accused petitioners have sold total agricultural land to the complainant ad-measuring 7 bighas and 13 biswas. It is also borne out from the FIR that when the land was measured, the available land was 4 bighas and 9 biswas and the same was falling short of 3 bighas and 4 biswas in terms of sale deeds. The complainant has also made endeavour to highlight a very vital fact in the FIR that when this fact was brought to the notice of petitioners they assured him to refund the consideration amount of land measuring 3 bighas 4 biswas but later on declined to abide by their assurance. Therefore, in that background, it is rather difficult to comprehend that the FIR is not disclosing commission of cognisable offence by the petitioners. Therefore, in that background, it is rather difficult to comprehend that the FIR is not disclosing commission of cognisable offence by the petitioners. The three sale deeds, which were executed by the petitioners in favour of respondent complainant, clearly and unequivocally denotes transaction of sale between the parties for land ad-measuring 7 bighas and 13 biswas for which consideration amount was passed on by the complainant to the petitioners. When the consideration amount was paid by the respondent-complainant for land measuring 7 bighas and 13 biswas, obviously if the land at the site is falling short of requisite measurement, which in the instant case as per complainant is almost 3 bighas and 4 biswas, prima facie case offence of criminal breach of trust is made out. As per FIR, at the behest of petitioners No.1 and 2, the other petitioners induced complainant to purchase the land which eventually was not matching the measurements incorporated in the three sale deeds. Therefore, in the considered opinion of Court, recitals in the FIR, prima facie, discloses the offence of 420 IPC. The Investigating Agency has also made it clear that the land available at the site is not matching the three sale deeds and the same is hardly 4 bighas and 9 biswas. In these circumstances, a close scrutiny of the FIR and upon construing the same in the backdrop of available materials, I am at loss to say that it is rather difficult to comprehend that FIR is not disclosing the commission of cognisable offence. 11. In Rajeev Thapar and Ors. v. Madan Lal Kapoor (2013 AIR SCW 784), Supreme Court was pleased to exercise inherent powers at the pre-trial stage for quashing the FIR, by relying on the material produced by the accused of sterling and impeccable quality. The Supreme Court has opined that in the given case defence material can be relied upon to quash the proceedings. The Court held: "We shall now advert to the allegation made in the complaint by Madan Lal Kapoor, that there was non-cordiality of relations between the deceased Dr. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in constant and regular contact with the other family members also. Monica Thapar, and her in-laws. Telephone bills demonstrate, that phone calls were regularly made from the residence of Rajiv Thapar (appellant no. 1), to the maternal family of Dr. Monica Thapar. The family of the husband of Dr. Monica Thapar was in constant and regular contact with the other family members also. This relationship is shown to have been subsisting even at the time of the illness of Dr. Monica Thapar which proved to be fatal. Of utmost importance is a letter written by Rajiv Kapoor (the brother of the deceased, and the son of Madan Lal Kapoor, the respondent-complainant). In a letter dated 22.9.1992, just four days before the death of Dr. Monica Thapar (on 26.9.1992), Rajiv Kapoor showered praise on the immediate family of Rajiv Thapar residing at Delhi. His letter to his sister describes her in-laws in Delhi, as "very affectionate and very caring". The telephone bills, as also the letter addressed by Rajiv Kapoor to his sister (Dr. Monica Thapar), are materials of sterling quality. Neither of the said materials has been controverted, either on veracity or on truthfulness. All this, in our opinion, would undoubtedly and inevitably result in concluding, that the relationship between the two families was cordial and affectionate. Clearly contrary to what has been alleged in the complaint." 12. The Court also made endeavour to examine the ambit and scope of inherent powers under Section 482 Cr.P.C. and issued a word of caution that at the pre-trial stage evaluation of truthfulness or otherwise allegations levelled by the prosecution/complainant are not required to be gone into. The Court held: "The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held." Therefore, this judgment cannot render any assistance to the cause of the petitioners. Even otherwise, the judgment as such is distinguishable in the light of facts and circumstances of the instant case. The powers possessed by this Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. It is trite that inherent power should not be exercised to stifle a legitimate prosecution. 13. The argument of the learned counsel for the petitioners that complaint was filed belatedly is also of no avail and consequence inasmuch as some delay in filing the complaint is no ground for quashing the same. Reliance in this behalf can be profitably made to a decision of Supreme Court in Jagdish Ram v. State of Rajasthan and Anr. [ (2004) 4 SCC 432 ]. The Court held: "It is to be borne in mind that the appellant has been successively approaching the High Court every time when an order taking cognizance was passed by the Magistrate. It is because of the appellant that the criminal proceedings before the Magistrate did not cross the stage of taking cognizance. As earlier noticed, since earlier judgments of the High Court have attained finality, we are not going into correctness of these judgments. It is because of the appellant that the criminal proceedings before the Magistrate did not cross the stage of taking cognizance. As earlier noticed, since earlier judgments of the High Court have attained finality, we are not going into correctness of these judgments. When third time the appellant was not successful before the High Court, he has approached this Court and at his instance the proceedings before the trial court were stayed. In fact, from 1986 till date the criminal case has not proceeded further because of the appellant. It would be an abuse of the process of the court if the appellant is now allowed to urge delay as a ground for quashing the criminal proceedings. In considering the question whether criminal proceedings deserve to be quashed on the ground of delay, the first question to be looked into is the reason for delay as also the seriousness of the offence. Regarding the reasons for delay, the appellant has to thank himself. He is responsible for delay. Regarding the seriousness of the offence, we may notice that the ill of untouchability was abolished under the Constitution and the Act under which the complaint in question has been filed was enacted nearly half a century ago. The plea that the complaint was filed as a result of vindictiveness of the complainant is not relevant at this stage. The appellant would have adequate opportunity to raise all pleas available to him in law before the trial court at an appropriate stage. No case has been made out to quash the criminal proceedings on the ground of delay." 14. While dealing on the inherent powers for quashing FIR, in Teeja Devi alias Triza Devi (supra), the Supreme Court has held: "It has been rightly submitted by the learned Counsel for the Appellant that ordinarily power Under Section 482 of the Code of Criminal Procedure should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognisable offence in accordance with the provisions of Code of CrPC. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognisable offence, interference with the investigation is not proper and it can be done only in rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious." "We have no hesitation in holding that in the facts of the case, the High Court was not justified in interfering with the police investigation and quashing the FIR. This is not at all a rare case. Without a thorough investigation, it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence the investigation should have been allowed to continue so that on filing of the report Under Section 173 CrPC the affected party could pursue its remedy against the report in accordance with law. Keeping in view the fact that the criminal case was at the stage of investigation by the police the High Court was not justified in holding that the investigation of the impugned FIR is totally unwarranted and that the same would amount to gross abuse of the process of the court." 15. The aforesaid decision of the Supreme Court is also followed by this Court in Smt. Godawari Devi v. State of Rajasthan and Anr. (supra) and while relying on the decision of Supreme Court in State of Haryana v. Bhajan Lal and Ors. [1992 Supp (1) SCC 335], the Court has declined to quash the FIR. It is also pertinent to note here that investigation in the matter is going on and therefore looking to the nature of allegations contained in the FIR, apparently, there is no reason to exercise inherent powers in absence of abuse of the process of the Court or otherwise to secure the ends of justice. 16. Resultantly, the petition fails and same is hereby dismissed.