Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 487 (RAJ)

Kamla Devi v. State of Rajasthan

2018-02-08

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the petitioners, learned Public Prosecutor and learned counsel for the respondent No.2 complainant. Perused the material available on record. 2. The Superintendent of Police, Bikaner Shri Sawai Singh Godara is present in the Court as directed earlier. He has furnished an oral explanation for non-availability of the Investigating Officer and the case diary in this Court on the earlier date of hearing which is accepted and the mistake is purged. 3. By way of the instant misc. petition under Section 482 Cr.P.C., the petitioners herein have approached this Court for challenging registration and further proceedings of F.I.R. No.92/2015 registered at the Police Station Kotwali, Bikaner for the offences under Sections 420 and 120B I.P.C. 4. The F.I.R. came to be lodged by the respondent No.2 Manakchand alleging inter-alia that the petitioner No.l Smt.Kamla Devi executed an agreement to sell 150 sq.yards of land in favour of the complainant's mother on 1.1.1997. As per the complainant, total consideration to the tune of Rs.2 lac was paid by the complainant's mother to the petitioner No.l Smt. Kamla Devi by11.11.1998. However, despite repeated requests, Smt. Kamla Devi did not execute the registered sale deed upon which, a notice dated 4.5.2015 was issued by the complainant to the accused. However, the complainant came to know that the accused had acted fraudulently and executed fresh registered sale deeds of the same land in favour of Smt.Rukeiya and Smt. Shamim Akthar on 27.4.2015 and 12.5.2015. The complainant alleged that the accused Kamla Devi sold the disputed plot to his mother way-back on 1.11.1997 and thus, by selling the same once again, the accused cheated them. The notice issued by the complainant's counsel to the accused before lodging of the F.I.R. has been placed on record by Shri Ajay Vyas learned counsel for the complainant. A perusal of the said notice indicates that the complainant intimated the accused that the registered sale deed was to be executed, was subject to vacation thereof by the government school being run on it. As per the complainant, the plot was vacated just before issuance of the notice whereafter, the accused were requested to execute the registered sale deed to which they refused pointblank. 5. As per the complainant, the plot was vacated just before issuance of the notice whereafter, the accused were requested to execute the registered sale deed to which they refused pointblank. 5. Shri N.L. Joshi, learned counsel representing the petitioners urges that ex-facie, the allegations levelled in the F.I.R. which was lodged nearly after 18 years of execution of the agreement to sale are false and fabricated. The complainant, if he so desired to enforce the same sale agreement, he could have taken recourse of the apposite civil proceeding i.e. a suit for specific performance, which he failed to do. The agreement had a span of only one month and since the complainant's mother failed to abide by the obligations under the contract, the same became otiose by efflux of time. As per him, the complainant has tried to implicate the petitioners in a totally frivolous prosecution by relying upon an irrelevant subsequent event just in order to justify and overcome the delay in filing the civil suit. He relied upon the decision rendered by Honble Supreme Court in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. reported in (2009)8 SCC 751 and urged that even if the allegations of complainant are accepted to be true on the face of record, manifestly, the persons cheated if at all would be the subsequent purchasers and not the complainant. On these grounds, he implored the Court to exercise its inherent powers to quash the impugned F.I.R. as the same amounts to a gross abuse of process of law. 6. Per contra, learned Public Prosecutor and learned counsel representing the complainant vehemently opposed the submissions advanced by the petitioners' counsel. They urged that the petitioner No.1 Smt.Kamla Devi was paid the total sale consideration in lieu of the disputed agreement way-back on 1.11.1998 but neither did she execute a registered sale deed thereof nor was the possession handed over to the complainant. Thereafter, she fraudulently re-sold the property thereby creating a complication on the complainant's lawful title. They, therefore, implored the Court to dismiss the instant misc. petition. 7. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 8. Thereafter, she fraudulently re-sold the property thereby creating a complication on the complainant's lawful title. They, therefore, implored the Court to dismiss the instant misc. petition. 7. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 8. Admittedly, the agreement for sale of the disputed plot was entered into between the petitioner No.1 Smt. Kamla Devi and the complainant's mother Manorama Devi way-back on 1.11.1997. There is no recital in the agreement regarding possession being transferred to the purchaser on the date of the agreement. On the contrary, it only bears a recital that a sum of Rs.50,000/- was being paid to the seller and the remaining consideration was payable within a month thereof. There is no other stipulation in the said agreement that the registered sale deed would be executed when the land is vacated by the school etc. Manifestly, the remedy if any, available to the complainant for enforcing her rights under the agreement, was to file a suit for specific performance within the limitation stipulated by law. If at all it is believed, the complainant had paid the balance consideration to the accused way-back in the year 1998, then she should have immediately taken recourse of the remedy of filing a suit for specific performance. However, she failed to do so. No notice of getting the sale registered was ever issued to the seller. Since the agreement was not registered, manifestly, the argument advanced by Shri Joshi that it came to an end by efflux of time is not without merit. However, this Court refrains from adjudicating or making any observation on this issue lest the same prejudices the rights of the parties in civil litigation, which came to be instituted after registration of the F.I.R. Nevertheless, keeping in view the law as laid down by Hon'ble Supreme Court in the case of Mohd. Ibrahim (supra) and even if for argument's sake, the allegations levelled in the impugned F.I.R. are accepted to be true on the face of record, then also, the offences under Sections 420 and 120B I.P.C. can in no manner be made out against the accused petitioners on the complaint of the first purchaser because the person cheated if at all by the so-called second sale would be the subsequent purchaser. The fact that the complainant kept silent for a period of almost 18 years from date, the agreement of sale was executed by Sm.Kamla Devi is also very significant and has a material bearing on the bonafides of the complainant's actions in lodging the highly elated F.I.R. 9. In view of the discussion made hereinabove, the misc. petition deserves to be and is hereby allowed. The impugned F.I.R. No. 92/2015 registered at the Police Station Kotwali, Bikaner for the offences under Sections 420 and 120B I.P.C. and all subsequent proceedings sought to be taken thereunder against the petitioners are hereby quashed.