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2018 DIGILAW 351 (JK)

Bashir Ahmed v. State of J&K

2018-05-30

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : DHIRAJ SINGH THAKUR, J. 1. This is a petition under Section 561-A Cr.P.C. for quashing FIR No. 65/2016, dated 10.09.2016, registered with the Crime Branch, Jammu, for offences under Sections 420, 406 read with Section 120(b) of the RPC. 2. Briefly stated, the material facts are as under: 3. A written complaint was lodged by respondent No. 4, (here-in-after called the complainant) before the Grime Branch, Jammu, wherein it was stated that the petitioner herein along with one Mohd. Rafiq allured the complainant in the year 2013 and offered him a piece of land measuring 50 kanals situate at Bari Brahmana, Jammu, for an amount of Rs. 65 lacs, which was paid by the complainant to the said persons. An agreement was, accordingly, executed. 4. It was alleged that despite taking the aforesaid amount as advance as sale consideration, the accused did not provide possession of the said land nor returned the money as both the accused had a criminal intention from the very beginning to extort money from the complainant by resorting to fraudulent means which was evident from the fact that they adopted delaying tactics to finalize the deal on one pretext or the other. Based upon this, a complaint was filed with the Crime Branch, Jammu, and accordingly, FIR No. 65/2016, came to be registered under Sections 420, 406 read with Section 120(b) of RPC. 5. Learned counsel appearing for the petitioner urged that none of the ingredients of Section 420/406 RPG were made out on a plain reading of the complaint or the FIR, which was registered on that basis. It was urged that the case, at best, was of a civil nature and one involving breach of contract. It was, thus, urged that the registration of FIR aforementioned, was an abuse of the process of the court and, thus, was required to be quashed in terms of the judgment of the Apex Court rendered in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. 6. On the contrary, counsel for the respondent-State, relied upon the judgment of the Apex Court reported as Lingaraj Mohapatra & Anr. v. State of Orissa & Anr., 2005 Cri.L.J. 1311, to emphasize the point that the criminal complaint cannot be quashed on the simple plea that the transaction involved was commercial in nature. 7. Heard learned counsel for the parties. 8. v. State of Orissa & Anr., 2005 Cri.L.J. 1311, to emphasize the point that the criminal complaint cannot be quashed on the simple plea that the transaction involved was commercial in nature. 7. Heard learned counsel for the parties. 8. It is no longer res-integra that this court does have the jurisdiction to quash a complaint or an FIR on the ground that it would amount to an abuse of the process of the court in a case where the court records its satisfaction that the averments contained in the complaint, assuming to be correct, did not reflect commission of an offence for which the case stands registered. 9. With a view to determine as to whether offences punishable under Section 420 or 406 RPC, are made out on a plain reading of the complaint based upon which the FIR was registered, it would be necessary to determine the main ingredients of the relevant Sections. 10. Section 405 of the RPC, deals with criminal breach of trust and envisages as under: "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". 11. The important ingredients of an offence of criminal breach of trust are: (i) entrusting a person with property or with any dominion over such property; (ii) that person entrusted: (a) dishonestly misappropriates or converts that property to his own use; or (b) dishonestly uses or disposes of that property or willfully suffers any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged or (ii) of any legal contract made touching the discharge of such trust. 12. Testing the facts of the present case, it can be seen that the amount which was handed over to the petitioner was a part of sale consideration. The money was, in fact, supposed to be used by the petitioner and was not held in trust by him for the complainant. 12. Testing the facts of the present case, it can be seen that the amount which was handed over to the petitioner was a part of sale consideration. The money was, in fact, supposed to be used by the petitioner and was not held in trust by him for the complainant. With a view to constitute an offence punishable under Section 406 RPC, therefore, what was required to be established was entrustment of the property or dominion over the property to the accused petitioner herein for purposes of holding in trust, in this case to the complainant. 13. However, looking to the nature of transaction between the complainant and the petitioner, it can only be held that the payment of Rs. 65 lacs made to the petitioner was not to be held in trust for the complainant but was only received as a sale consideration for executing the sale in favour of the complainant. Thus, no offence under Section 406 can be said to be made out in the present case. 14. Section 415 of the RPC envisages as under: "Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, any which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation-A dishonest concealment of facts is a deception within the meaning of this section." 15. Explanation-A dishonest concealment of facts is a deception within the meaning of this section." 15. Similarly, the ingredients required to be established for punishment of an offence under Section 420 RPC are (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulent or dishonest inducement of any person any by deceiving him; (iii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iv) in cases covered by (iii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 16. In G.V. Rao v. L.H.V. Prasad & Ors., (2000) 3 SCC 693 , while dealing with the definition of "cheating" as contained in Section 415 of the Indian Penal Code held as under: ".........While the first part of the definition relates to property, the second part need not necessarily relate to property. The second part is reproduced below:".... intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, any which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". This part speaks of intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional....." 17. Reliance in the aforementioned case was placed on an earlier judgment of the Apex Court reported as Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 , wherein the Apex Court held as under: "......a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established...." 18. The Apex Court in GV Rao's case (supra), also relied upon its earlier judgment reported as Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724 , wherein it was held that "....in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered...." 19. For determining as to whether the petitioner herein had the intention to cheat at the time inducement was offered, it would be necessary to fall back upon the complaint which was filed before the Crime Branch. On a perusal of the complaint, apart from stating that the petitioner had intended to cheat the complainant from the very beginning, no specific material facts are given which would support that assertion. It is not the case of the complainant that the accused/petitioner did not have the title to the property in question or that the petitioner was not competent to enter into an agreement in respect of the said land. 20. In similar circumstances, in Murari Lal Gupta v. Gopi Singh, (2005) 13 SCC 699 , wherein a criminal complaint was instituted under Section 406 and 420 IPC, the Apex Court held as under: ".... The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 Indian Penal Code is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with respondent....." 21. In the present case, on a perusal of the complaint filed by the complainant with the Crime Branch, it becomes clear that the complainant had miserably failed to establish that at the time when the agreement was executed between the parties, the petitioner had intended to cheat the complainant. The said intention to cheat could have been established in case the petitioner did not have any title to the property or the property which was the subject matter of sale was non-existent. 22. In the absence of these material facts, it would be difficult to infer that the petitioner had a dis-honest intention at the time of execution of agreement with the complainant. 23. Having considered the matter in its entirety, I am of the opinion that failure on the part of the petitioner to execute the sale deed in favour of the complainant can, at best, be said to be a breach of contract for which remedy available to the complainant would be under the civil law and the same would not constitute an offence of cheating. 24. This petition is, accordingly, allowed. 24. This petition is, accordingly, allowed. FIR No. 65/2016, registered with the Crime Branch, Jammu, against the petitioner and the proceedings based thereupon are quashed. The complainant, however, shall be at liberty to pursue such other remedy under the civil law as may be available to him. 25. Connected MPs are also disposed of.