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2018 DIGILAW 1075 (RAJ)

Shashi Kant Vyas v. State

2018-04-25

SANDEEP MEHTA

body2018
JUDGMENT : Sandeep Mehta, J. These three petitions under Sections 482 Cr.P.C. have been filed by the accused petitioner Shashi Kant seeking quashing of three identical F.I.Rs. No.523/2014, 400/2014 and 524/2014 respectively registered against him at the P.S. Udaimandir, District Jodhpur for the offences under Sections 420 and 406 I.P.C. and hence, are being decided by this common order. 2. Facts in brief are that 30 persons including the petitioner herein jointly purchased 13 bighas of land from Khasra No.57, Village Chopasani, District Jodhpur through a registered sale deed executed in the year 1992. After execution of the said registered sale deed, the 30 purchasers bifurcated the property in separate plots after carving out roads etc. For division and identification of respective shares, mutation entries were got recorded in the names of the purchasers. The petitioner claims that this bifurcation is also recorded in the Jamabandis prepared by the Revenue Department. The petitioner's name was mentioned in the agreement at Sr.No.27. A case has been set up in the petition that the petitioner's share in the chunk of land as after bifurcation was ad-measuring 1328 sq.yards. The petitioner claims to have divided this chunk of 1328 sq.yards into 9 plots of different size and numbered them as Sr.No.2 to 10. The land fell in the vicinity of Jodhpur Development Authority ('JDA' for short), who conducted proceedings under Section 90B of the Land Revenue Act and pattas have been issued to some of the original purchasers. Feeling dire need of money, the petitioner claims to have sold plots No.8, 9 and 10 ad-measuring 200 sq.yards to the complainants herein through registered sale deeds executed on 5.8.1995. It was categorically mentioned in the sale deeds that possession was handed over to the respective purchasers. The three purchasers, complainants herein have now initiated the instant prosecution of the petitioner by filing three separate F.I.Rs. No.523/2014, 400/2014 and 524/2014 respectively registered at the P.S. Udaimandir, Jodhpur for above offences. It is alleged that the petitioner acted with a grossly fraudulent motive and intention while selling them the plots in question. The petitioner was known to the complainants and he used to frequent their homes. He fraudulently lured the complainants into purchasing the plots in question by giving them an impression that he had carved out a scheme named Sidharth Nagar in chunk of land. The petitioner was known to the complainants and he used to frequent their homes. He fraudulently lured the complainants into purchasing the plots in question by giving them an impression that he had carved out a scheme named Sidharth Nagar in chunk of land. Thereupon, as mentioned above, the complainants purchased the plots in question for a consideration of Rs.24,000/- each from the petitioner through registered sale deeds. The complainants further alleged that they used to go and check their plots from time to time. In the year 2008, the complainants claim to have acquired information that the mutation of the disputed land had never been entered in the name of the accused Shashi Kant Vyas and that he had surrendered entire land of Khasra No.57 in the Jodhpur Development Authority (JDA) with the intention of fraudulently usurping the plots purchased by complainants as well. The complainants too approached the JDA and made an endeavour to procure pattas for their plots but were told that the pattas could only be issued in the name of Shashi Kant. Thereafter, the complainants claim to have approached Shashi Kant and requested him to get the pattas in their names. However, soon thereafter, Shashi Kant approached the complainants and asked them to give up their plots, return the documents and take back the consideration amount. Upon this, the complainants became suspicious about his motives. Finally, the complainants were told that they could not get Pattas of any plot whatsoever and that they were free to take whatever action they desired. With these aspertions, the impugned F.I.Rs. No.523/2014, 400/2014 and 524/2014 respectively came to be lodged against the petitioner Shashi Kant Vyas at the P.S. Udaimandir for the offences under Sections 420 and 406 I.P.C. and investigation was commenced. 3. The accused petitioner Shashikant has challenged these F.I.Rs. by filing these three misc. petitions No.3138/2014 (F.I.R. No.523/2014), 3137/2014 (F.I.R. No.524/2014) and 3136/2014 (F.I.R. No.400/2014) before this Court under Section 482 Cr.P.C. This Court gave interim protection to the petitioner in all the three matters and directed him to join investigation. Admittedly, the petitioner has appeared before the Investigating Officer on number of occasions and has presented all his documents. In the hearing held on 4.4.2016, this Court was apprised that the petitioner neither applied for nor did he acquire Pattas of the plots sold to the complainants. Admittedly, the petitioner has appeared before the Investigating Officer on number of occasions and has presented all his documents. In the hearing held on 4.4.2016, this Court was apprised that the petitioner neither applied for nor did he acquire Pattas of the plots sold to the complainants. By way of a subsequent development, the complainants' plots came in a width of 75 meters from each side of the highway which was declared to be in the green corridor by the State Government's Urban Development Department and that is why, the JDA was not issuing the pattas to them. After considering the import of these submissions, the Court directed the Investigating Officer to get a report of demarcation of land from the concerned Patwari. However, the report dated 26.8.2017 which was submitted for the Court's perusal was totally perfunctory. 4. Thereupon, the matters were again taken up on 1.8.2017 on which date, the Patwari JDA as well as Patwari (Revenue) concerned appeared in the Court and stated that physical verification of the disputed lands could not be done owing to lack of information and coordination. The Investigating Officer present in the Court stated that the predecessor Investigating Officer being the Additional Commissioner of Police had already completed the investigation concluding that the accused petitioner is responsible for the offences attributed to him. 5. As the entire dispute revolves around the measurement, demarcation and identification of the lands in question and since there is no dispute that the petitioner while selling the plots to the complainant had a valid title, this Court gave a pertinent direction to the Investigating Officer on 1.8.2017 to get the physical verification of the land in question carried out in presence of the Patwaris and parties concerned. Finally, a report was prepared in compliance of the above directions and was presented for the Court's perusal. The relevant conclusions and findings of the factual report dated 31.8.2017 are reproduced hereinbelow for the sake of ready reference: Img 6. The conclusion and the findings of the Investigating Officer reproduced hereinabove clearly indicate that the petitioner had sold the three plots in question to the complainants by registered sale deeds way-back in the year 1995. As per the recitals appearing in the sale deeds, the respective purchasers agreed that they had received possession of the plots in question. However, there is no physical demarcation of the plots at the site. As per the recitals appearing in the sale deeds, the respective purchasers agreed that they had received possession of the plots in question. However, there is no physical demarcation of the plots at the site. The petitioner has clearly intimated to the Investigating Officer that the lands are lying open and the complainants can very well take recourse of the lawful procedure to take possession of their respective plots. The matters were thereafter heard finally on 26.10.2017. 7. Shri Mahesh Bora learned senior counsel assisted by Shri A.K. Singh learned counsel representing the petitioner in all the three matters vehemently urged that the F.I.Rs. in question are absolutely frivolous and are based on conjectures and surmises. The registered sale deeds in question were executed way-back in the year 1995. Clear recitals are made in the sale deeds that the purchasers had taken possession of their respective plots right at the time of the sale. The petitioner moved an application for surrendering and getting a patta of his remaining share of 728 sq.yards from the JDA way-back in the year 2008. The total land which came into the share of the petitioner under the sale deed executed in the year 1992 was of 1328 sq.yards. Admittedly, the petitioner applied for getting a patta of 728 sq.yards of land only. Even till date, the said chunk of 728 sq.yards is entered in the name of JDA after having been surrendered by the petitioner. The remaining 600 sq.yards is consisted by the complainant's plots. The Patwaris concerned have made repeated efforts to demarcate and identify the complainants' plots. However, manifestly, it is clear that the disputed plots purchased by the complainants have fallen within the green corridor and thus, pattas thereof cannot be issued and construction thereupon is also not permissible because of this subsequent development. Faced with this situation, the complainants started compelling the petitioner to give them alternative plots from his remaining share. He submitted that despite all these developments, the petitioner's motives are absolutely bonafide and he is ready to return the consideration amount to the complainants, who have bluntly refused to accept the same. Reliance was placed by Shri Bora on the decision rendered by Hon'ble Supreme Court in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr., (2009) 8 SCC 751 and this Court's judgment rendered in the case of Ganesh Dan Vs. Reliance was placed by Shri Bora on the decision rendered by Hon'ble Supreme Court in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr., (2009) 8 SCC 751 and this Court's judgment rendered in the case of Ganesh Dan Vs. State of Rajasthan & Anr., (2012) 4 WLC(Raj) 710. He urged that as admittedly, the land from which the petitioner sold the plots to the complainants was of clear title, manifestly, the petitioner cannot be held guilty for the offences of cheating and/or criminal breach of trust by any stretch of imagination. He urged that the consequence of the subsequent development viz. non-issuance of pattas of the disputed plots by the JDA to the complainants cannot be thrust down the petitioner's throat because this situation has arisen owing to the declaration of 75 meters of land on either side of the road as a green corridor and the JDA is not issuing pattas to the complainants on this ground. He contended that the petitioner cannot be penalized or prosecuted for this event. He further urged that the remedy if any, available to the complainants would be to file a suit for partition and demarcation and the registration of the impugned F.I.Rs. for the offences of cheating and criminal breach of trust is ex-facie illegal because none of these offences are made out from the admitted allegations of the complainants. He thus implored the Court to exercise its inherent powers and quash the F.I.Rs. under challenge as they amount to a gross abuse of process of law. 8. Per contra, Shri Moti Singh learned counsel representing the complainants and the learned Public Prosecutor assisted by the Investigating Officer vehemently opposed the submissions advanced by the petitioner's counsel. They urged that the petitioner fraudulently induced the complainants into purchasing the non-existent pieces of lands. The plots were numbered fictionally because demarcation existed when the sale deeds were executed. The complainants were made to believe that the petitioner would protect their right in the land in question whenever formal demarcation was carried out. However, he failed to honour to his promise and filed the application for conversion of the entire share of land devolving upon him under the registered sale deed dated 8.12.1992. Thereby, the petitioner has not only cheated the complainants but thereafter, he has attempted to usurp the three plots sold to the complainants. However, he failed to honour to his promise and filed the application for conversion of the entire share of land devolving upon him under the registered sale deed dated 8.12.1992. Thereby, the petitioner has not only cheated the complainants but thereafter, he has attempted to usurp the three plots sold to the complainants. Shri Moti Singh relied upon the following judgments 1. State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) SCC(Cri) 426 2. M/s. Medchl Chemicals & Pharma Pvt. Ltd. Vs. M/s. Biological E. Ltd. & Ors., (2000) SCC(Cri) 615 3. T. Vengama Naidu Vs. T. Dora Swamy Naidu & Ors., 2007 2 WLC(SC) Cri 101 4. Padal Venkata Ram Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy & Ors., (2012) 1 SCC(Cri) 603 5. Veer Prakash Sharma Vs. Anil Kumar Agarwal & Anr., (2007) 7 SCC 373 6. Satish Mehra Vs. State of N.C.T. of Delhi & Anr., (2013) AIR(Supreme Court) 506 7. Yash Sharma & Ors. Vs. Mohan Dev Sharma & Anr., 2013 3 WLC(Raj) 641 8. Rama Prakash Bhargav Vs. State of Rajasthan & Anr., 2013 4 WLC(Raj) 451 9. Umesh Zadgaonkar & Ors. Vs. The State of Rajasthan & Anr., 2013 3 WLC(Raj) 666 10. Mahesh Choudhary Vs. State of Rajasthan, 2008 1 WLC(Raj) 188 and urged that mere availability of civil remedy with the complainants cannot be construed as a valid ground to quash the prosecution at the inception when the allegations set out in the F.I.Rs. do disclose the requisite and necessary ingredients of the offences alleged. He thus implored the Court to reject these misc. petitions. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 9. Law is well settled by a catena of judgments rendered by Hon'ble Supreme Court including that of Mohd. Ibrahim relied upon by Shri Bora that for constituting an offence under Section 420 I.P.C., the prosecution has to set out clear and unimpeachable case that intention of the accused was to cheat right at the inception of the contract. So-called development of fraudulent intention at a subsequent stage would not bring the act complained of within the purview of cheating. So-called development of fraudulent intention at a subsequent stage would not bring the act complained of within the purview of cheating. Apparently, looking to the admitted allegations in all the three FIRs, it is clear that the accused sold three plots measuring 200 yards each to the complainants' herein from his share of 1332 yards in the Khasra No.57 of the revenue village Chopasani. Admittedly, the accused acquired a valid title for this chunk of land through a registered sale deed in the year 1992. The sale deeds in favour of the complainants were executed in the year 1995. It is pertinently mentioned in each sale deed that the purchaser had been given his/her respective plot. The complainants have categorically stated in the F.I.R. that they used to go and check their plots from time to time. The accused petitioner initiated proceedings for getting a patta for his remaining share of land by taking recourse of the procedure provided under Section 90B of the Land Revenue Act. It is an admitted position from the record and duly verified from the Investigating Officer's factual report (the contents whereof have been reproduced hereinabove), that only 728 sq.yards land was surrendered by the accused petitioner in the JDA for getting a patta thereof in his name. The total chunk of land was 1332. sq.yards and thus admittedly, the complainants' plots which admeasured at 200x3=600 sq.yards were not disturbed by the petitioner. Manifestly thus, the allegations set out by the complainants in their F.I.Rs. that the accused fraudulently deprived them of their plots by filing application for surrendering the entire plot admeasuring 1332 yards and getting patta thereof from the JDA is only fictional and conjectural. As a matter of fact, the entire controversy is plain and simple a dispute of demarcation and identification of the particular share of the land in reference to the disputed sale deeds and nothing beyond that. From the admitted and highest allegations as set out in the FIR, there is no such material which can satisfy the Court that the intention of the accused was to cheat the complainants at the inception. For the first time, this allegation was levelled by the complainants after almost 19 years. The entire dispute seems to have arisen when the accused and the complainants initiated proceedings for getting pattas of their respective plots. For the first time, this allegation was levelled by the complainants after almost 19 years. The entire dispute seems to have arisen when the accused and the complainants initiated proceedings for getting pattas of their respective plots. The complainants have clearly alleged that they also approached the JDA for getting pattas of their respective plots but the precise reason for their failure to get the pattas has not been clarified either by them in the F.I.Rs. nor in their statements recorded during investigation. Even the Investigating Officer has failed to pinpoint that the accused was in any manner responsible for the failure of the complainants' endeavour to get pattas of their plots. Manifestly thus, the offence under Section 420 I.P.C. is not made out against the accused petitioner from the highest and admitted allegations levelled by the complainants. Furthermore, the offence under Section 406 I.P.C. can also not be applied in view of the admitted prosecution allegations because no elements of entrustment and criminal breach of trust are made out against the accused therefrom. The entrustment if any made by the complainants to the accused was of the consideration amount for purchasing the plots in question way-back in the year 1995. Admittedly, the accused executed registered sale deeds in favour of the complainants after receiving the consideration amount and handed them the possession of the property (as per the recital in the sale documents) and thus, neither did the accused cheat the complainants nor did he commit criminal misappropriation so as to warrant his prosecution in connection with the impugned F.I.Rs. The judgments cited by Shri Moti Singh learned counsel representing the complainants expound uncontroverted principles of law viz; (1) that the F.I.R. can only be quashed in the rarest of rare cases and in exceptional circumstances and where the admitted allegations levelled therein do not disclose any offence whatsoever, (2) that merely because the complainants can take recourse of a civil remedy, the FIR cannot be quashed; if it discloses the necessary ingredients of the offences of cheating and breach of trust etc; (3) that the High Court should not interfere in the rightful investigation of an F.I.R. when the same discloses the ingredients of cognizance offences. 10. 10. Having tested the facts of the case at hand on the touchstone of these settled principles of law and as has been discussed above, ex-facie, even if the allegations set out in the impugned F.I.Rs. are accepted as true, then too, the same do not disclose the necessary ingredients of the offences alleged so as to justify continuance of investigation thereof and hence, the judgments cited by Sh.Moti Singh are of no help to the complainants. It may be noted here at the cost of repetition that the petitioner conveyed his bonafides by offering to return the consideration amounts to the complainants in order to alleviate them from the situation created by the subsequent developments but the complainants did not accept the said proposal. 11. As an upshot of the above discussion, this Court is convinced that the F.I.Rs. under challenge and all further investigation deserve to be quashed by exercising its inherent powers under Section 482 Cr.P.C. 12. Resultantly, all the three misc. petitions are allowed. The impugned F.I.Rs. No. 523/2014, 400/2014 and 524/2014 respectively registered at the P.S. Udaimandir, District Jodhpur for the offences under Sections 420 and 406 I.P.C. and all further proceedings sought to be taken thereunder are hereby quashed. 13. However, it is made clear that the observations made hereinabove shall not be treated as prejudicial to the rights of the parties in any other collateral litigation.