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Madhya Pradesh High Court · body

2017 DIGILAW 442 (MP)

Keshav Upadhyay v. State of M. P.

2017-04-03

G.S.AHLUWALIA

body2017
ORDER 1. This petition under section 482 of CrPC has been filed for quashing the FIR at Crime No.683/2015 registered by Police Station Morar, District Gwalior for offences punishable under sections 420, 467, 468, 471 and 34 of IPC. 2. The prosecution story in short is that the applicant is an employee of M/s. Assotech C.P. Infrastructure Pvt. Ltd. and is serving as Manager and he has to perform his duty as per the directions given by the superior authority. M/s. Assotech C.P. Infrastructure Pvt. Ltd. is a Private Limited Company engaged in the business of construction of housing duplexes in the name of Windsor Hills in City Gwalior. Villa No.A-4 was allotted to the respondents No.2 and 3 by the company vide allotment letter dated 8.11.2011 for consideration of Rs.1,06,60,000/-. At the time of allotment, the terms and conditions in detail were also agreed upon between the parties. Respondents No.2 and 3 were under obligation to make payment of price money of the Villa as per the installments fixed in the allotment letter, however, they failed to honor their part of contract. Respondents No.2 and 3 obtained home loan facility from Diwan Housing Finance Ltd. and a tripartite agreement was entered into between M/s. Assotech C.P. Infrastructure Pvt. Ltd., respondents No.2 and 3 and Diwan Housing Finance Ltd. and as per the condition of tripartite agreement, Diwan Housing Finance Ltd. was to reimburse the installment in favour of the company after the margin money was deposited by the complainants/ respondents No.2 and 3 as well as the written consent is given by them. In spite of availing the loan facility, respondents No.2 and 3 did not make the payment of installments and therefore various reminders were sent to them. Under these circumstances, M/s. Assotech C.P. Infrastructure Pvt. Ltd. invoked Clause 13 of the terms and conditions of the allotment letter and cancelled the allotment. It is further submitted that the complainants/ respondents No.2 and 3 have filed a civil suit and thereafter on the basis of false and concocted allegations, a complaint was lodged in the police station against the applicant. It was alleged in the complaint that in spite of payment of Rs.14 lacs to the applicant and in total Rs.62 lacs to M/s. Assotech C.P. Infrastructure Pvt. Ltd., the company is going to allot/sell the aforesaid duplex to somebody else. It was alleged in the complaint that in spite of payment of Rs.14 lacs to the applicant and in total Rs.62 lacs to M/s. Assotech C.P. Infrastructure Pvt. Ltd., the company is going to allot/sell the aforesaid duplex to somebody else. On the basis of these allegations the police registered the offence. 3. It is submitted by the counsel for the applicant that if the entire allegations as mentioned in the application are taken on their face value, then it would be clear that it is a case which can be said to be predominantly of civil in nature. The dispute between the parties is about nonpayment of timely installments by the complainants/respondents No.2 and 3 and if M/s. Assotech C.P. Infrastructure Pvt. Ltd. had invoked Clause 13 of the terms and conditions of allotment letter, then it can not be said that any criminal offence has been committed by the applicant. To buttress his contention, counsel for the applicant has relied upon the judgment of the Supreme Court in the case of Amit Kapoor v. Ramesh Chander, [ (2012)9 SCC 460 ]. 4. Per contra, it is submitted by the counsel for the respondents that the parties have compromised and have settled their dispute and if the FIR is quashed, then the complainants have no objection. 5. Considered the submissions made by the counsel for the parties. 6. If the allegations made in the complaint are considered on their face value, then it is clear that the respondents No.2 and 3 had entered into an agreement to purchase duplex Villa No.A-4 in Windsor Hills, which is being constructed by M/s. Assotech C.P. Infrastructure Pvt. Ltd. They got the property financed from Diwan Housing Ltd. but according to the applicant because of non payment of installments M/s. Assotech C.P. Infrastructure Pvt. Ltd. exhausted Clause 13 of the terms and conditions of allotment letter and cancelled the allotment, then it can not be said that the intention of the applicant since from inception was to cheat respondents No.2 and 3. If the respondents No.2 and 3 had signed the terms and conditions, then they are under obligation to honour their part of contract. In case of any contractual dispute, the remedy lies in the civil Court. 7. If the respondents No.2 and 3 had signed the terms and conditions, then they are under obligation to honour their part of contract. In case of any contractual dispute, the remedy lies in the civil Court. 7. The Supreme Court in the case of All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain, [ AIR 2008 SC 247 ], has held as under : “We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice”. The Supreme Court in the case of Paramjeet Batra v. State of Uttarakhand [ 2013(I) MPWN 56 = (2013)11 SCC 673 ], has held as under : “While exercising its jurisdiction under section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of Court”. The Supreme Court in the case of International Advanced Research Centre for Powder metallurgy and new Materials (ARCI) v. Nimra Cerglass Technics (P) Ltd. [ (2016)1 SCC 348 ], held as under : “12. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior Court of the State should refrain from analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under section 482 CrPC should not be exercised to stifle a legitimate prosecution. Power under section 482 CrPC. is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. Vide State of Haryana and others v. Bhajan Lal and others, [1992 Supp.(1) SCC 335]; State of T.N. v. Thirukkural Perumal, [ (1995)2 SCC 449 ]; and Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another, [ (2006)7 SCC 188 ]. 13. In the light of the well settled principles, it is to be seen whether the allegations in the complaint filed against ARCI 1 and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under sections 419 and 420 IPC. 13. In the light of the well settled principles, it is to be seen whether the allegations in the complaint filed against ARCI 1 and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating. The essential ingredients to attract section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 14. 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. 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 and others v. State of Bihar and another [ (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. In S.W. Palanitkar and others v. State of Bihar and another [ (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.” The above view in Palanitkar’s case was referred to and followed in Rashmi Jain v. State of Uttar Pradesh and another [(2014)13 SCC 553]. The apex Court in the case of State of Haryana v. Chaudhary Bhajanlal [ AIR 1992 SC 604 ] has held that, inherent powers of the Court can be invoked for quashing the criminal proceedings where, continuance of the same would only be abuse of process of law. The Hon'ble apex Court has held as under : (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where in the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. This Court in the case of LML Ltd v. Shri Kailash Narain Rai, [ILR (2012) MP 1471], has held as under : “In State of West Bengal v. Swapan Kumar Guha [ AIR 1982 SC 949 ], the Hon. Supreme Court has similarly held that in appropriate cases, the Court may take into consideration the relevant facts and circumstances of the case,. While considering the question whether a first information report giving rise to investigation by the police should be quashed, the Hon. Supreme Court observed in paragraph 65 as follows (AIR 1982 SC 972) : Ïn considering whether an offence into which an investigation is made or to be made, is disclosed or not, the Court has mainly to take into consideration the complaint or the first information report and the Court may in appropriate cases take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to the conclusion whether an offence is disclosed or not” ; 8. Supreme Court in the case of Amit Kapoor v. Ramesh Chander, [ (2012)9 SCC 460 ], has held as under :- “27. Having discussed the scope of jurisdiction under these two provisions, i.e., section 397 and section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the Courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under section 397 and section 482 of the Code or together, as the case may be : 27.1 Though there are no limits of the powers of the Court under section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2 The Court should apply the test as to whether the uncont-roverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate Courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 28.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 27.9 Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. 27.10 It is neither necessary nor is the Court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12 In exercise of its jurisdiction under section 228 and/or section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14 Where the charge-sheet, report under section 173 (2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the Courts exist.{Ref. State of West Bengal v. Swapan Kumar Guha, [ (1982)1 SCC 561 ]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, [ (1988)1 SCC 692 ]; Janta Dal v. H.S. Chowdhary [ (1992)4 SCC 305 ]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [ (1995)6 SCC 194 ; G.Sagar Suri v. State of U.P. [ (2000)2 SCC 636 ]; Ajay Mitra v. State of M.P.; [ 2003(1) JLJ 325 = (2003)3 SCC 11 ]; Pepsi Foods Ltd. v. Special Judicial Magistrate; [(1998) SCC 128]; State of U.P. v. O.P.Sharma; [ (1996)7 SCC 705 ]; Ganesh Narayan Hegde v. S. Bangarappa [ (1995)4 SCC 41 ]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque; [ (2005)1 SCC 122 ]; Medchal Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [ (2000)3 SCC 269 ]; Shakson Belthissor v. State of Kerala; [ (2009)14 SCC 466 ]; V.V.S.Rama Sharma v. State of U.P.; [ (2009) 7 SCC 234 ]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; [ (2009) 11 SCC 203 ]; Sheonandan Paswan v. State of Bihar; [(1987) 1 SCC 288]; State of Bihar v. P.P. Sharma; [1992 Suppl (1) SCC 222]; Lalmuni Devi v. State of Bihar; [ (2001) 2 SCC 17 ]; M.Krishnan v. Vijay Singh; [ (2001) 8 SCC 645 ]; Savita v. State of Rajasthan;[ (2005) 12 SCC 338 ]; and S.M.Datta v. State of Gujarat ; [ (2001) 7 SCC 659 ]}. 9. 9. Considering the facts and circumstances of the case, this Court is of the view that the allegations made in the complaint do not make out a case involving criminal intent on the part of the applicant. The allegations are predominantly of civil in nature and the same cannot be given colour of criminal offence. 10. This Court by order dated 8.12.2015 had stayed further proceedings in respect of FIR registered in Crime No.683/2015 by Police Station Morar, District Gwalior. Thus, it is clear that no investigation could take place in view of interim order. Accordingly, the FIR at Crime No.683/2015 registered by Police Station Morar, District Gwalior qua the applicant is hereby quashed. Application under section 482 of CrPC succeeds and is hereby allowed.