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Allahabad High Court · body

2017 DIGILAW 1854 (ALL)

SAADAT HUSAIN v. STATE OF U. P.

2017-08-10

ABHAI KUMAR

body2017
JUDGMENT : Abhai Kumar, J. 1. Short counter affidavit filed today on behalf of opposite party no.2, is taken on record. 2. Heard learned counsel for the applicants, learned A.G.A. for the State and Sri Mukhtar Alam, learned counsel for the opposite party no.2 and perused the record. 3. It has been prayed that the criminal proceeding of the instant matter bearing Case Crime No.568 of 2004, under Sections 420, 467, 468 and 471 I.P.C., Police Station Kotwali City, District Bijnor may be quashed. 4. The brief facts of the case are as follows: The applicant no.1 purchased a piece of land of one Rashid Ali through the registered sale-deed dated 19.4.2004 and the applicant nos.2 and 3 are witnesses of the said sale-deed. The applicant no.1 raised some constructions in this land. The opposite party no.2 Tahir son of Rahmatullah lodged a report against the applicants and the applicants filed a Criminal Misc. Writ Petition against that matter and arrest of the applicants was stayed till submission of the charge-sheet. After investigation, the final report was submitted on 28.2.2005 and thereafter the complainant filed a protest petition. The learned Magistrate rejected the final report and directed for re-investigation. Against that order, the applicants filed an application under Section 482 Cr.P.C., but before that could be decided the charge-sheet has been submitted. According to the applicants Rashid Ali, who is the owner of the land in dispute, has filed a civil suit against the opposite party no.2 for the grant of permanent injunction and cancellation of the sale-deed dated 9.6.2003 executed by Rashid Ali in favour of opposite party no.2. According to the applicants, the alleged sale-deed in favour of the opposite party no.2 is a forged and fictitious document. The applicant no.1 has also filed a Civil Suit No.273 of 2004 challenging the validity of the sale-deed in favour of opposite party no.2 and in that case, an order to maintain status quo has also been passed. 5. It is submitted by the learned counsel for the applicants that parties have entered into a compromise and all the matters regarding the dispute of the property has been resolved. 5. It is submitted by the learned counsel for the applicants that parties have entered into a compromise and all the matters regarding the dispute of the property has been resolved. The Civil Suit No.273 of 2004 filed by applicant no.1 Saadat Hussain against the opposite party no.2 was compromised on 4.5.2005 before the Civil Judge (Senior Division), Bijnor and a decree has been filed as supplementary Annexure No.1 to the counter affidavit filed today and it also reveals that the opposite party no.2 also admitting the compromise reached at between the parties. The compromise which was filed in the Civil Suit No.273 of 2004 it has been specifically mentioned that criminal case lodged by the opposite party no.2 would be decided in terms of compromise arrived at between the parties. 6. From the facts, it is clear that applicant no.1 filed a civil suit for cancellation of sale-deed in favour of opposite party no.2. The original owner Rashid Ali also filed a civil suit against opposite party no.2 for cancellation of sale-deed in respect of same property, which was sold to the applicant no.1. From the facts, it can be inferred that dispute between the applicant no.1 and the opposite party no.2 was initially civil in nature and in these type of cases one of the party resorts the procedure of criminal law for exerting the pressure upon the party. 7. The Hon'ble Apex Court since the very beginning has in very clear terms held that any civil liability cannot be allowed to be executed through criminal case by exerting pressure. In V.Y. Jose and another Vs. State of Gujarat and another, 2009 (65) ACC 572, Hon'ble Apex Court in the similar circumstances held as follows: "12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. 15. There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. 15. There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition where from the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all." 8. Hon'ble Apex Court recently in International Advanced Research Centre For Powder Metallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technics Private Limited and another, (2016) 1 SCC 348 also discussed this matter and in paragraph 16 held as follows: "(16) Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar & Ors. vs. State of Bihar & Anr. (2002) 1 SCC 241 , this Court held as under: "21 ...... 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 leading to cheating." 9. The above view in Palanitkar's case was referred to and followed in Rashmi Jain vs. State of Uttar Pradesh & Anr. (2014) 13 SCC 553." Hon'ble Apex Court also considered its view held in Anil Mahajan Vs. Bhor Industries Ltd. and Indian Oil Corporation Vs. NEPC India Ltd. and other cases in this regard, clearly observed that it is the intention which is material, if the intention is bad from the very beginning then a criminal proceeding can be initiated but if in a contractual obligation one of the party failed to observe any liability, then it cannot be said that it is an act of cheating. Keeping in view the law propounded by Hon'ble Apex Court and taking into consideration the facts of this case, it can be inferred that criminal proceeding that was initiated by the opposite party no.2 was just to pressurize the applicants and dispute between the parties was essentially civil in nature. 10. Parties have buried their dispute by filing a compromise in civil proceeding before the Civil Judge (Senior Division), Bijnor and now if applicants are relegated to the lower court for facing trial that will be misuse of procedure of law. 10. Parties have buried their dispute by filing a compromise in civil proceeding before the Civil Judge (Senior Division), Bijnor and now if applicants are relegated to the lower court for facing trial that will be misuse of procedure of law. When the parties have agreed to compromise and have settled their dispute outside the Court, then it is pious duty of the Court to let them live in peace without any further dispute/litigation between the parties. 11. Consequently, the petition is allowed and the charge-sheet dated 6.3.2005 arising out of Case No.900 of 2005, under Sections 420, 467, 468 and 471 I.P.C. (State Vs. Rasid Ali and others), pending in the Court of Chief Judicial Magistrate, Bijnor is hereby quashed.