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2018 DIGILAW 639 (RAJ)

SITARAM MEENA v. STATE OF RAJASTHAN

2018-02-23

BANWARI LAL SHARMA

body2018
JUDGMENT : Banwari Lal Sharma, J. Petitioner-accused Sitaram Meena preferred this criminal writ petition under Article 226 of the Constitution of India read with Rule 315 (1) H of the Rajasthan High Court Rules, 1952 and prayed for quashing impugned FIR No. 71/2017 dated 03.02.2017 (Annexure-1) registered at Police Station Kanota, Jaipur (East) for offence punishable under Sections 420, 406 and 120-B of IPC. 2. The brief facts of the case are that respondent No.2-complainant filed a criminal complaint before learned Metropolitan Magistrate No.24, Jaipur Metro against the present petitioner wherein it was alleged that on instance of petitioner-accused he excavated soil from his agricultural field and also operated J.C.B. machine and transported the soil in the intervening period of 05.05.2015 to 01.06.2015, the total work was done for Rs.6,72,950/- out of which petitioner-accused paid only Rs.2,83,000/-, remaining amount Rs.3,89,950/- has not been paid even after repeated calls and reminders, rather gave threatenings and misbehaved with respondent. 3. The aforesaid complaint was sent under Section 156 (3) Cr.P.C. for investigation to SHO, Police Station Kanota. In compliance of the order of learned Metropolitan Magistrate No. 24, Jaipur Metro, FIR No. 71/2017 for offence punishable under Sections 420, 406 and 120-B IPC was registered at Police Station Kanota and investigation commenced. 4. Learned counsel for the petitioner submits that prior to filing criminal complaint and registering FIR, respondent No.2-complainant issued legal notice (Annexure-2) on 23.07.2015 for demand of due amount of Rs.3,89,950/-. Since, the demand was wrongly created, therefore petitioner-accused through his counsel Shri Ram Gopal replied the notice instantly on 28.07.2015. Copy of notice is submitted as (Annexure-3) wherein it is clearly stated that the rates of excavation are wrongly alleged as Rs.850/- per dumper while it was decided for Rs.700/- per dumper only and the total amount was only Rs. 2,83,000/- which has already been paid. Thereafter, without filing civil suit, respondent No.2 just to create pressure of Police on petitioner-accused filed criminal complaint on 27.01.2017 after 18 months of issuing legal notice (Annexure-1). 5. He submits that from the bare perusal of complaint/ FIR, it reveals that FIR was lodged only to recover the due amount for offence punishable under Section 406 IPC, there should be some entrustment of property as enshrined in Section 405 of IPC. 5. He submits that from the bare perusal of complaint/ FIR, it reveals that FIR was lodged only to recover the due amount for offence punishable under Section 406 IPC, there should be some entrustment of property as enshrined in Section 405 of IPC. Similarly, for offence punishable under Section 420 IPC, there should be intention of deceiving, fraudulently or dishonestly to deliver any property to any person. 6. But from the perusal of notice (Annexure-2) and FIR (Annexure-1), there is not a single word regarding deceiving, therefore, even if the averments mentioned in the FIR 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, therefore the impugned FIR (Annexure-1) may be quashed and set aside. 7. Learned counsel relied on State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) Supp1 SCC 335. Per contra learned counsel for the respondent No.2-complainant supported the impugned FIR and submitted that from the allegations levelled in the FIR, offence under Sections 406, 420 and 120-B is prima facie made out as petitioner-accused issued signed slips and done work and still he failed to make payment, therefore it is evident that petitioner was not intending to make payment of the work done from beginning. He submits that the writ petition may be dismissed. 8. Learned Additional Government Advocate fairly submits that from the perusal of FIR, it is apparent that the dispute between parties is of civil nature. 9. I have considered the submissions made at Bar. In the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) Supp1 SCC 335, the Hon'ble Supreme court framed seven grounds on the basis of which the FIR can be quashed. The Hon'ble Supreme Court, in para No.105, observed as under :- "105. 9. I have considered the submissions made at Bar. In the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., (1992) Supp1 SCC 335, the Hon'ble Supreme court framed seven grounds on the basis of which the FIR can be quashed. The Hon'ble Supreme Court, in para No.105, observed as under :- "105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a 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, the allegations in the F.I.R. 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." 10. Here, in the case in hand, the FIR was registered for offence under Sections 420, 406 and 120-B IPC on the allegations that petitioner-accused failed to pay the due amount of respondent No.2-complainant, which was due against the excavation and transportation of soil from the period 05.05.2015 to 01.06.2015, for which respondent No.2 issued notice demanding the due amount (Annexure-2) on 23.07.2015 which has been replied by the petitioner-accused vide (Annexure-3) on 23.07.2015. 11. Thereafter, on 27.01.2017 criminal complaint was filed and for the same issue on 03.02.2017 FIR was registered by the order of learned Magistrate. 12. For offence punishable under Section 406 IPC, there should be criminal breach of trust which is defined in Section 405 of IPC in following words :- "Criminal breach of trust. 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 wilfully suffers any other person so to do, commits "criminal breach of trust." 13. From the bare perusal of aforesaid definition of criminal breach of trust, there should be entrustment with property or dominion over property for the offence punishable under Section 406 IPC. 14. From the bare perusal of aforesaid definition of criminal breach of trust, there should be entrustment with property or dominion over property for the offence punishable under Section 406 IPC. 14. But, here from the perusal of FIR, there is no entrustment of property or dominion over the property or any allegation regarding dishonesty or mis-appropriation or converting of property in the use of petitioner-accused, no such averments are there in the criminal complaint or FIR. In absence thereof, if the averments taken in toto in consideration, still no offence is made out under Section 406 IPC. 15. So far as, Section 420 of IPC is concerned, which is defined as follow :- "Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 16. Cheating is defined in Section 415 of IPC as follow :- "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, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." 17. From the perusal of definition of cheating, there must be 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. 18. But from the entire allegations levelled in the FIR, no allegation of deceiving is there, therefore if the FIR is taken in its face value, still ingredients of cheating enshrined in Section 415 of IPC are not available, therefore offence under Section 420 IPC is also not made out. 19. 18. But from the entire allegations levelled in the FIR, no allegation of deceiving is there, therefore if the FIR is taken in its face value, still ingredients of cheating enshrined in Section 415 of IPC are not available, therefore offence under Section 420 IPC is also not made out. 19. So far as Section 120-B of IPC is concerned. Since, the principle offence under Sections 406 and 420 IPC are not made out, therefore Section 120-B IPC is also not made out, therefore the case of present petitioner comes in the purview of ground first of the case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. that if 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. Rather it is a simple case of recovery of money, for which civil remedy is available. 20. Without availing civil remedy, respondent No. 2 filed this criminal complaint just to create pressure on petitioner-accused by Police to recover his due amount which is disputed, the same cannot be encouraged. 21. Accordingly, this writ petition is allowed and the impugned FIR No.71/2017 registered at Police Station Kanota, Jaipur (East) for offence punishable under Sections 420, 406 and 120-B of IPC is not sustainable which is hereby quashed and set aside. 22. However, respondent No. 2 is free to avail civil remedy available according to law, if advised so.