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2018 DIGILAW 778 (JHR)

Sidheshwar Singh v. State of Jharkhand

2018-04-06

RONGON MUKHOPADHYAY

body2018
ORDER : 1. Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Shailesh Kr. Singh, learned counsel appearing for the respondent No.2. 2. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with Complaint Case No. 2203 of 2013, including the order dated 01.07.2014 passed by the learned Judicial Magistrate, Dlianbad, by which cognizance has been taken for the offences punishable under Sections 379, 406 and 417 of the Indian Penal Code. 3. It has been submitted by the learned counsel for the petitioner that the complaint petition itself reveals that the same has been filed by way of malicious prosecution against the petitioner. Learned counsel for the petitioner submits that alleged incident is said to have taken place in the year 2005 and the complaint case has been instituted after 8 years in• the year 2013. Learned counsel has also drawn the attention. of the Court to paragraph 8 of the complaint petition and thereafter to the Court question put to the complainant in course of his solemn affirmation and has stated that his solemn affirmation belied the averment made in the complaint petition in paragraph 8. Learned counsel submits that the dispute is purely civil in nature as it is with respect to non-execution of an agreement in spite of taking an amount of Rs. 5,36,000/- and only to give the same a color of criminality allegation has been leveled of threatening and forcibly taking away an amount of Rs. 5,000/- from the complainant. In support of his contention c learned counsel for the petitioner has referred to the case of Rashmi Jain v. State of U.P., reported in (2014) 13 SCC 533 and an order passed by this Court in Cr. M.P. No. 3038 of 2013. 4. Mr. Shailesh Kr. Singh, learned counsel appearing for the respondent No. 2 on the other hand has countered the submission advanced by the learned counsel for the petitioner by stating that at this stage it is not permissible for the Court to exercise its inherent power under Section 482 of the Cr PC in interfering with the criminal proceedings. Learned counsel further submits that the petitioner had deceived the complainant by taking an amount of Rs. Learned counsel further submits that the petitioner had deceived the complainant by taking an amount of Rs. 5.36.000/- on the pretext of selling the land but the same was never done and therefore the same amounts to misappropriation of the amount which entails criminal prosecution of the petitioner. He has also referred to the anticipatory bail order of the petitioner in A.B.A No. 1208 of 2016. 5. On consideration of the submission advanced by the learned counsel for the parties and ongoing through the records it appears that the complainant had instituted a complaint case in which it was alleged that the complainant was induced by the petitioner with respect to selling of a land for which an amount of Rs. 5,36.000/- was taken. It has been alleged that an agreement was also executed by the accused persons on 10.02.2015. Further allegation has been leveled that the accused persons did not execute the sale-deed and did not take the balance amount of Rs. 9,32.500/- nor refunded the amount of Rs. 5,36.000/- to the complainant in spite of repeated requests made by the complainant. It has also been alleged that on 21.07.2013 at about 7:00 p.m. the accused persons had forcibly entered into the premises of the complainant and after abusing him in filthy language had snatched Rs. 5,000/- from his pocket and had threatened the complainant for sending legal notice to the accused persons. 6. Based on the aforesaid allegation Complaint Case No. 2203 of 2013 was instituted. Upon conducting an inquiry by examining the complainant on solemn affirmation cognizance was taken for the offences punishable under Sections 379. 406 and 417 of the Indian Penal Code. 7. It is an admitted fact that the transaction which had taken place is of the year 2005 and the agreement was also executed by the accused persons in the year 2005. The grievance of the complainant is that neither the sale-deed was executed nor the balance amount was taken by the petitioner nor the amount which was earlier handed over to the petitioner was returned back to the complainant. In the complaint petition aspersion has been cast by the complainant upon the petitioner that the incident which had occurred on 21.07.2013 was practically on account of the legal notice sent by the complainant to the petitioner. In the complaint petition aspersion has been cast by the complainant upon the petitioner that the incident which had occurred on 21.07.2013 was practically on account of the legal notice sent by the complainant to the petitioner. However, from the solemn affirmation of the complainant it appears to be an admitted fact that in October, 2005 a legal notice was sent by the complainant and therefore the reasons which has been given in para 8 of the complaint petition seems to be a lame excuse made by the complainant to by to curtail the delay which had occurred in filing the complaint petition. The allegation prima facie leads to a conclusion that the dispute is purely civil in nature being given a color of criminality on account of what has been stated at paragraph 8 of the complaint petition which however has been contradicted by the complainant himself in his solemn affirmation. In the case of Rashmi Jain v. State of U.P. (supra) while considering a similar situation it was held as follows : "6. To take the complaint out of the realm of a purely civil dispute, it is maliciously alleged in the complaint that when respondent 2 approached the appellant for payment. the appellant stated as follows : "On 22-3-2009. the applicant met the accused in the market of Bazarganj Saraitareen and asked for his balance amount, but the accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don't know me. I have not paid to the high and mighty people, who are you. I had to usurp your money and I had done so. Thereafter she went in a car." In our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. The allegations are absurd and outlandish on the face of it firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. In our opinion, these are allegations which on the face of it, cannot be taken seriously by any reasonable person. The High Court, in our opinion has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial Court. 7. The fact that the dispute involved between the parties is purely civil in nature and has, in fact, been admitted in the counter-affidavit filed on behalf of respondent 2. In Para 5.1, it has been stated as follows : "5.1 That the contents of Para 5.1 are wrong. Hence denied. The complaint clearly disclose the commission of criminal offence. It is correct that the dispute was initially pertaining to commercial one, however this commercial dispute has been converted into criminal one later on." Clearly, it is evident that the utterances which are attributed to the appellant have been inserted in the complaint with a malicious in-tent to convert a purely civil dispute into a criminal offence." 8. In the case of Satya Binaik @ Satya Banaik (supra) this Court while considering the trust which would determine as to whether a criminal case would also lie in case of a civil wrong held as follows ; "Thus what would fall from the judicial pronouncement quoted above is that there has to be dishonest intention from the very inception or in other words that an intention to deceive from the very beginning of the transaction would be a pre-requisite in launching a criminal prosecution. As has been indicated above the averments made in the complaint petition coupled with surrounding circumstances as well as those enumerated in the plaint as well as the legal notice issued on behalf of the opposite party No. 2 can only lead to a conclusion that the absence of deception from the very inception is stark on the face of it and furthermore even if the entire allegations are taken to be true no criminal liability can be fastened upon the petitioner. For the same fact and same allegation the ingredients of a civil' wrong and a criminal offence can be present and both proceedings can continue. But the true test is to determine as to whether the complaint petition discloses an element of cheating or breach of trust or for that matter any offence for which the accused can be criminally prosecuted. The absence of any criminal intent in the complaint petition is palpable on the face of it and heaping a criminal liability without making out a criminal offence is not permissible in the eye of law. The complainant-opposite party No.2 has already initiated a title suit for specific performance of contract and the allegation in the complaint petition also reveals that the complainant-opposite party No.2 has rightly opted for the only forum available to him in the face of the allegations for redressal of his grievance." 9. On consideration of the factual aspects of the case as also the judicial pronouncement quoted above there can be but only one conclusion i.e. the complainant having failed to avail his remedy of filing the civil suit for specific performance of contract has after expiry of almost 8 years instituted a complaint petition and that too for non-execution of the sale-deed on behalf of the petitioner. The contention advanced by the learned counsel for the respondent No. 2 with respect to the fact that the amount in question has been misappropriated by the petitioner which invites criminal consequences is not tenable in the surrounding facts and circumstances of the case as the same clearly points to a civil dispute and only to give it a color of criminality aspersions has been made at paragraph 8 of the complaint petition which as has been stated above has been contradicted by the complainant himself in his solemn affirmation. 10. 10. Thus on consideration of the aforesaid fact, I find force in the argument advanced by the learned counsel for the petitioner. This application therefore stands allowed and the entire criminal proceedings in connection with Complaint Case No. 2203 of 2013, including the order dated 01.07.2014 passed by the learned Judicial Magistrate, Dhanbad by which cognizance has been taken for the offences punishable under Sections 379. 406 and 417 of the Indian Penal Code is hereby quashed and set aside. 11. This application is allowed. Application allowed.