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2017 DIGILAW 1620 (BOM)

Ganesh v. State of Maharashtra

2017-08-08

M.G.GIRATKAR, VASANTI A.NAIK

body2017
JUDGMENT : Vasanti A Naik, J. 1. Rule. Rule made returnable forthwith. The criminal writ petition is heard finally at the stage of admission with the consent of the learned counsel for the parties. 2. By this writ petition, the petitioner seeks the quashing of the first information report registered against the petitioner for an offence punishable under section 420 read with section 34 of the Penal Code. 3. Few facts giving rise to the petition are stated thus: The petitioner and the respondent No.4 had entered into an agreement of sale in respect of plot No.96 at Mouza Sawangi in Wardha District on 07/03/2007. The parties were bound by the terms and conditions recorded in the agreement of sale dated 07/03/2007. There were some disputes between the parties and the petitioner did not execute the sale deed of the property that was agreed to be sold by the agreement dated 07/03/2007. On 28/02/2017, i.e. ten years after the execution of the agreement of sale, the respondent No.4 lodged a report alleging therein that the petitioner had committed an offence punishable under section 420 of the Penal Code. It was alleged by the respondent No.4 in the said complaint that the petitioner and the respondent No.4 had entered into an agreement for selling the plot of land for a sum of Rs.2,30,750/- and a sum of Rs.80,000/- was paid by the respondent No.4 to the petitioner towards earnest amount and the balance consideration was liable to be paid by the applicant from time to time. It is alleged in the complaint that the petitioner and his partner were called upon by the respondent No.4 from time to time to execute the sale deed of the concerned plot in favour of the respondent No.4 and/or to return the amount that was paid to the petitioner towards earnest money and the consideration for the execution of the sale deed. It is alleged in the complaint that the petitioner started avoiding the respondent No.4 by not receiving his calls and by disconnecting and switching off the phone. It is alleged in the complaint that the petitioner had cheated the respondent No.4. 4. It is alleged in the complaint that the petitioner started avoiding the respondent No.4 by not receiving his calls and by disconnecting and switching off the phone. It is alleged in the complaint that the petitioner had cheated the respondent No.4. 4. On the basis of the first information report, the respondent Nos.1 to 3 investigated in the matter and on the basis of the material, secured by the respondent No.3 during the investigation, registered an offence punishable under section 420 of the Penal Code against the petitioner. The petitioner has sought the quashing and setting aside of the first information report registered against him as according to him, the ingredients of the provisions of section 420 of the Penal Code cannot be made out on the basis of the first information report as also the material on the basis of which the crime is registered. 5. Shri J.M. Gandhi, the learned counsel for the petitioner, submitted that an agreement of sale was executed between the petitioner and the respondent No.4 in the year 2007 and more than ten years later the respondent No.4 has falsely filed the complaint against the petitioner with a view to pressurise the petitioner in a matter arising out of a contract and which is clearly of a civil nature. It is submitted that the essential ingredient of the offence punishable under section 420 of the Penal Code is that, there should be a dishonest intention to deceive another person. It is submitted that on the basis of the first information report, even if it is accepted at its face value as also the documents available with the respondent Nos.1 to 3, it cannot be said that the essential ingredient for the offence punishable under section 420 of the Penal Code could be made out. It is submitted that similar type of cases came up before the Hon’ble Supreme Court and by the judgments, reported in (2012) 2 SCC (Criminal) 650 (Thermax Ltd. v. K.M.Johny), AIR 2008 SC 251 (Inder Mohan Goswami v. State of Uttaranchal) and 1999 Cri.L.J. 598 (Nageshwar Prasad Singh v. Narayan Singh), it is held by the Hon’ble Supreme Court that a liability, if any, arising out of a breach of contract would be of a civil nature and not criminal and in such circumstances, the criminal proceedings are liable to be quashed. It is stated that in all the matters before the Hon'ble Supreme Court, there was a contract executed between the parties for the sale of the property and when the property was not sold and a sale deed was not executed in favour of the vendee, the vendee had filed the complaint against the vendor under section 420 of the Penal Code. It is submitted that since the essential ingredient of an offence punishable under section 420 of the Penal Code cannot be prima facie made out, the prayer made by the petitioner needs to be granted. 6. Shri Ambarish Joshi, the learned Additional Public Prosecutor appearing for the respondent Nos.1 to 3 submitted that the first information report was registered against the petitioner under section 420 read with section 34 of the Penal Code as according to the respondent No.4, the petitioner had cheated the respondent No.4 by refusing to execute the sale deed in his favour after receiving the consideration for the sale of the property. It is stated that the investigation in the matter is still in progress and in the circumstances of the case, it cannot be said that the first information report was wrongly registered against the petitioner. 7. Shri Khan, the learned counsel for the respondent No.4, submitted that the petitioner had executed an agreement of sale in favour of the respondent No.4 on 12/02/2007 as one of the vendors and though the consideration for the sale of the concerned plot was paid to the petitioner, the petitioner avoided to execute the sale deed in favour of the respondent No.4, despite several requests. It is stated that instead of executing the sale deed in favour of the respondent No.4, the petitioner and the other partner have executed the sale deed in favour of Shri Romit Heda and have thereby cheated the respondent No.4. 8. On a reading of the judgments rendered by the Hon’ble Supreme Court as also the provisions of section 420 of the Penal Code, it appears that the ingredient of the offence punishable under section 420 of the Penal Code cannot be prima facie made out in the instant case as the material on record shows that the transaction between the petitioner and the respondent No.4 was an agreement to sell the property and the dispute is of a civil nature. There has to be a dishonest intention to deceive another person for making out an offence punishable under section 420 of the Penal Code. Neither are the said ingredients prima facie made out from the first information report lodged by the respondent No.4 against the petitioner nor are they made out from the agreement of sale and the other documents on the basis of which the respondent Nos.1 to 3 have registered the first information report against the petitioner under section 420 of the Penal Code. It is held by the Hon’ble Supreme Court in the judgment, reported in (2012) 2 SCC (Criminal) 650 that with a view to avoid the period of limitation under civil law, criminal proceedings cannot be resorted to. In the case before the Hon’ble Supreme Court, the parties had executed some purchase orders in the year 1995 and the complaint was filed by one of the parties to the agreement/purchase orders in the year 2002 and in those set of facts, the Hon’ble Supreme Court held that the complainant in the said case was trying to circumvent the jurisdiction of civil courts which estopped him from proceeding on account of law of limitation, which was impermissible. In similar set of facts, the Hon’ble Supreme Court has held in the judgments reported in AIR 2008 SC 251 and 1999 Cri.L.J. 598 that the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendentta or with an ulterior motive to pressurise the accused. In the aforesaid cases, criminal proceedings under section 420 of the Penal Code were instituted against the accused in matters arising out of the breach of contract. The Hon’ble Supreme Court, therefore, held in the judgments that liability, arising out of the breach of contract is of a civil nature and not criminal. In the instant case, an agreement of sale was executed between the petitioner and the respondent No.4 in the year 2007 and if the petitioner had not executed the sale deed in favour of the respondent No.4, as per the agreement, the respondent No.4 was free to institute civil proceedings for appropriate relief. However, instead of doing so, the respondent No.4, with a view to pressurise the petitioner, filed the complaint against him for an offence punishable under section 420 of the Penal Code. However, instead of doing so, the respondent No.4, with a view to pressurise the petitioner, filed the complaint against him for an offence punishable under section 420 of the Penal Code. As held by the Hon’ble Supreme Court, in the case of State of Haryana v. Bhajan Lal, reported in (1992) SCC (Cri) 426 that where the allegations made in the first information report or the complaint, even if they are accepted at their face value and in the entirety do not prima facie constitute any offence or make out a case against the accused, the High Court would exercise its extraordinary jurisdiction under section 482 of the Criminal Procedure Code to quash and set aside the proceedings. The law laid down by the Hon’ble Supreme Court is reiterated in the subsequent judgments, reported in (2004) 6 SCC 522 (State of A.P. v. Golconda Linga Swamy) and (2005) 1 SCC 122 (Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque). It is held by the Hon’ble Supreme Court in the judgment, reported in (2005) 1 SCC 122 that it would be an abuse of process of the court to allow any action which would result in injustice and prevent the promotion of justice. It is further held in the said decision that in exercise of the powers, the court would be justified in quashing any proceedings if it finds that the initiation/continuation of it, amounts to abuse of the process of the court or quashing of the proceedings would otherwise serve the ends of justice. It is held that when the complaint is sought to be quashed, it is permissible for the court to look into the matter to assess what the complainant has alleged and whether any case is made out even if the allegations are accepted in the totality. In the instant case even if the allegations are accepted in the totality, no case is made out for registering an offence against the petitioner under section 420 read with section 34 of the Penal Code. 9. Hence, for the reasons aforesaid, the criminal writ petition is allowed. The offence registered against the petitioner under section 420 read with section 34 of the Penal Code bearing Crime No.27 of 2017 as also the further proceedings arising there from, are hereby quashed and set aside. Rule is made absolute in the aforesaid terms.