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2018 DIGILAW 110 (RAJ)

Rambabu Sharma v. State of Rajasthan

2018-01-08

DEEPAK MAHESHWARI

body2018
ORDER : Deepak Maheshwari, J. Accused-petitioner Rambabu Sharma has filed this criminal misc. petition for quashing the FIR No. 449/2016 registered at PS Kanota, Jaipur East for the offence under Sections 420 & 406 IPC. 2. Facts in brief are that complainant Ramavtar Meena filed a complaint before learned Additional Civil Judge-cum-Metropolitan Magistrate No. 24, Bassi, Jaipur Metropolitan stating therein that there were two shops with basements situated at Dayarampura, Tehsil Bassi, Agra Road, Jaipur owned by accused Rambabu Sharma. He was in need of money for domestic requirement and the complainant was need of said shops alongwith basement, so an agreement was entered between the parties on 01.02.2016 regarding sale of the said shops alongwith basement for a sum of Rs. 21 lacs. Out of that amount, Rs. 20 lacs were paid on 01.02.2016 by the complainant to Rambabu Sharma with the promise to pay the rest amount of Rs. 1 lac on 01.05.2016 and to get the sale deed executed. But later on, when he went to pay the rest amount of Rs. 1 lac on 01.05.2016, Rambabu refused to take the money and get the ale deed executed and did not honour the agreement, thus he has cheated the complainant. On the basis of this complaint, FIR No. 449/2016 came to be registered for the offence under Sections 420 & 406 IPC. 3. Learned counsel for the petitioner submits that from the bare perusal of FIR, no offence of cheating and criminal breach of trust is made out. The matter is essentially a dispute in civil nature, even if, the facts mentioned in the complaint are taken on the face value. Learned counsel further submits that a bare perusal of the agreement to sale (Annex.2) shows that the blank stamp papers have been manipulated and misused to create a false agreement to sale. In fact, the signatures of accused-petitioner were obtained on the blank stamp papers by the complainant when he obtained loan of Rs. 1 lac from him. Those blank signed stamp papers have been misused to create this sale agreement. Learned counsel submits that it is highly improbable that when a substantial sum of Rs. 20 lacs is paid out of the sale consideration of Rs. 21 lacs, a period of three months may be sought to get the sale deed executed for a mere sum of Rs. 1 lac only. Learned counsel submits that it is highly improbable that when a substantial sum of Rs. 20 lacs is paid out of the sale consideration of Rs. 21 lacs, a period of three months may be sought to get the sale deed executed for a mere sum of Rs. 1 lac only. He further submits that despite the notice was allegedly served by the complainant on 24.06.2016 to seek the execution of sale deed, no civil suit seeking specific performance of agreement was ever filed by the complainant pursuant to the said notice. This also clearly indicates about the falsity of the said sale deed. 4. Learned counsel for the petitioner has placed reliance on following judgments in support of his prayer :- I. ALPIC Finance Ltd. v. P. Sadasivan & Anr., reported in (2001) 3 SCC 513 II. Veer Prakash Sharma v. Anil Kumar Agarwal & Anr., reported in 2007 AIAR (Criminal) 578 III. All Cargo Movers (India) Pvt. Ltd. & Ors. v. Dhanesh Badarmal Jain & Anr., reported in (2007) 14 SCC 776 5. Per contra, learned counsel for the complainant respondent submits that right from inception when the sale agreement was executed by the accused-petitioner on 01.02.2016, he was having dishonest intention to cheat the complainant and to commit criminal breach of trust. Pursuant to such criminal intent, he deceitfully obtained Rs. 20 lacs from the complainant and thereafter refused to get the sale deed executed. He further submits that the Investigating Officer has also concluded that the offence under Sections 420 & 406 IPC is established against the accused-petitioner. He further submits that in so far as the proceedings under Section 482 Cr.P.C. are concerned, the factual aspect of the matter may be taken into consideration. 6. Learned Public Prosecutor has submitted the factual report received from SHO, PS Kanota, Jaipur East, whereby the investigating officer has stated that the offence under Sections 420 & 406 IPC is established against the accused-petitioner. 7. I have considered the submissions made by learned counsels for the rival sides and perused the material available on record. 8. The contention raised by learned counsel for the petitioner prima facie appears convincing that for a meagre sum of Rs. 1 lac no bona fide purchaser will defer the execution of sale deed, if a substantial sum of Rs. 20 lacs has been paid by him three months ago. 8. The contention raised by learned counsel for the petitioner prima facie appears convincing that for a meagre sum of Rs. 1 lac no bona fide purchaser will defer the execution of sale deed, if a substantial sum of Rs. 20 lacs has been paid by him three months ago. This argument also appears convincing that if no suit for specific performance of the said sale agreement is filed by the purchaser then it creates a grave suspicion about any such sale agreement having been entered into by the parties. However, even if these factual aspects are taken into consideration by the Court while exercising powers under Section 482 Cr.P.C., the facts mentioned in the complaint are obviously deserve consideration. 9. On bare perusal of the said complaint, on the basis of which FIR No. 449/2016 was registered against the accused-petitioner, nothing comes out that there was an intention on part of the petitioner to cheat the complainant and dishonestly inducing him to pay a sum of Rs. 20 lacs from very inception. The complainant himself has stated in the complaint that two shops alongwith basement were owned by the accused. It is nowhere stated that he, in any manner, misrepresented or deceived the complainant. No fact has been stated in the complaint, which may lead to interference that at the time when the said sale agreement was entered into, the accused was intending to sale the said shops to the complainant. Neither there is any fact mentioned in the complaint about the entrustment of the property with the accused-petitioner, which had been dishonestly misappropriated or converted to his own use by him. 10. In the judgment relied upon by learned counsel for the petitioner of Veer Prakash Sharma (supra), the Hon'ble Supreme Court has observed that :- "8. The dispute between the parties herein is essentially a civil dispute. Non-payment or under-payment of the price of the goods by itself does amount to commission of an offence of cheating or, criminal breach of trust." 11. In the case of All Cargo Movers (India) Pvt. Ltd. (supra), the Hon'ble Apex Court has observed as under :- "16. 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 disclose an offence. In the case of All Cargo Movers (India) Pvt. Ltd. (supra), the Hon'ble Apex Court has observed as under :- "16. 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 disclose an offence. For the said purpose, this Court may only take into consideration the admitted facts but it is also permissible to look into the pleadings of the Respondent No. 1-plaintiff 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 simpliciter does constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. ........................................................ .........................................................." 12. This judgment has been pronounced by the Hon'ble Supreme Court while following Hira Lal Hari Lal Bhagwati v. CBI, New Delhi, reported in (2003) 5 SCC 257 , wherein it was observed that :- "40. It is settled law, by a catena of decisions, that for establishing the 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. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. ......................................." 13. In the case of ALPIC Finance Ltd. v. P. Sadasivan & Anr., reported in (2001) 3 SCC 513 , the Hon'ble Apex Court has held as under :- "10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that respondents committed the offence under Section 420 IPC and the case of the appellant is that respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any willful misrepresentation. Even according to the appellant, parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does necessarily evade the debt by deception." 14. While taking into consideration the principles laid down by the Hon'ble Supreme Court in the aforesaid pronouncements and applying them to the facts of the case in hand, it appears that the facts revealed in the complaint when taken on their face value, do disclose that right from inception when the alleged sale agreement was entered into by the parties on 01.02.2016, there was any intention of the accused-petitioner to have cheated the complainant and thereby dishonestly inducing him to deliver the amount. Non-compliance of the said agreement on later point of time may be due to many reasons, which may essentially because of the dishonest intention. Non-compliance of the said agreement on later point of time may be due to many reasons, which may essentially because of the dishonest intention. This Court further deems it proper to mention that filing any civil proceeding i.e. a suit seeking specific performance of the sale agreement poses a serious question about the veracity of facts mentioned in the complaint, which could have been put to test in such suit, alongwith the reasons for non-compliance of the contractual obligations. 15. In view of the facts mentioned above, this Court deems it proper to secure the ends of justice and to prevent the abuse of process of law to exercise the power under Section 482 Cr.P.C. in regard to FIR No. 449/2016, PS Kanota, Jaipur East. 16. Resultantly, the misc. petition is allowed and FIR No. 449/2016, PS Kanota, Jaipur East for the offence under Sections 420 & 406 IPC is quashed and set-aside.