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2018 DIGILAW 782 (RAJ)

RAM PRASAD v. AJAY JAGDISH SINGH

2018-03-15

DEEPAK MAHESHWARI

body2018
JUDGMENT AND ORDER : Deepak Maheshwari, J Heard learned counsel for the rival sides and learned Public Prosecutor. 2. This misc. petition has been preferred on behalf of the accused-petitioners with the prayer to quash and set-aside FIR No.14/2017 registered at PS Sindhi Camp, Jaipur for the offences under Sections 420, 406, 477-A, 467, 468 and 120-B IPC. Facts in brief : FIR No.14/2017 came to be lodged at PS Sindhi Camp, Jaipur for the aforesaid offences on the basis of the complaint filed by the complainants-respondents No.2 & 3 through their power of attorney Rakesh Kumar Sharma, which was sent to concern police station under Section 156(3) Cr.P.C. 3. Briefly, the facts stated in the said complaint were that the complainants, who are non-resident Indians, were persuaded by the accused-petitioners on behalf of M/s. Comfort Living (Hotels) Private Limited in the month of October, 2013 to purchase a plot located in a residential scheme namely "Princessa" being developed by the accused-persons in Krishna Nagar, Gopalpura Bye-pass, Jaipur. It was stated that the plot is being divided in two parts i.e. B-8 (North) and B-8 (South). The scheme is approved by JDA. The amount invested in the scheme will remain secured against the Villas to be constructed therein and the complainants will get huge profits. Accused promised to construct the Villas within a period of six months and also promised that in case of failure to do so, the total amount invested will be refunded alongwith interest and compensation thereon. It has further been stated that on this assurance, complainants transferred the US dollars worth Rs.3,70,95,621 INR in the account of M/s. Comfort Living (Hotels) Pvt. Ltd. and subsequently amount worth Rs.1,37,09,371/- INR were also transferred to the said company through Amit Tak and Akshay Tak. Despite the assurance, no progress was made in the residential project until May, 2014. On making queries, the accused assured to construct the houses else to repay the amount with interest, compensation etc. upto the month of January, 2016. But the situation remained unchanged and the accused again asked the complainants to wait for some time stating that they were faced with great financial hardship. On making further reminders, they started threatening the complainants with dire consequences. 4. Learned Senior Advocate Mr. upto the month of January, 2016. But the situation remained unchanged and the accused again asked the complainants to wait for some time stating that they were faced with great financial hardship. On making further reminders, they started threatening the complainants with dire consequences. 4. Learned Senior Advocate Mr. R.N. Mathur appearing for the accused-petitioners has contended that the registration of the FIR itself reveals that the money was invested by the complainants in the residential scheme to earn profit and to secure their investment against the Villas to be constructed. The dispute relating to this transaction was of civil nature. He has also drawn attention of this Court to the e-mails sent by complainants (Annex.-4 & 5) to support his contention. The complainants were keen to earn profit or amount of interest on the investment made by them. He has further contended that at the time of making assurance by the accused there was no dishonest intention on their behalf to deceive or cheat the complainants, which is sine qua non for the offence under Section 420 IPC. If the accused-persons could not keep their promise on account of extra-ordinary circumstances and great financial hardships which developed later on, they cannot be saddled with the criminality of the offence under Section 420 IPC. 5. Learned Senior Advocate Mr. Mathur has relied on the following judgments to support his contentions :- I. Suneet Gupta Vs. Anil Triloknath Sharma & Ors., (2008) 11 SCC 670 . II. Gagan Kishore Srivastava Vs. State & Ors., (1998) 75 D.L.T 717 . III. Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors., (2015) 8 SCC 293 . IV. Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr., (2009) 8 SCC 751 . 6. Per contra, learned counsel appearing for the complainants has vehemently opposed the arguments advanced by the rival side. Firstly, his contention is that the powers under Section 482 Cr.P.C. are to be exercised sparingly and with great circumspection. The case in hand is not of the nature, wherein exercise of such powers is warranted. Learned counsel submits that the facts mentioned in the FIR, when taken on their face value, clearly reveal the commission of cognizable offence. Pursuance made by the accused-petitioners to attract the complainants to invest money in the residential scheme of Villas "Princessa" is clearly indicative of their dishonest intention at the very inception. Learned counsel submits that the facts mentioned in the FIR, when taken on their face value, clearly reveal the commission of cognizable offence. Pursuance made by the accused-petitioners to attract the complainants to invest money in the residential scheme of Villas "Princessa" is clearly indicative of their dishonest intention at the very inception. Learned counsel further submits that if the residential scheme could not be developed for any reason, the amount paid by the complainants ought to have been refunded by the accused-petitioners as assured by them from time to time. Neither delivering the possession of Villas nor repaying the amount as per their repeated assurances clearly show that the intention of the accused-petitioners was dishonest and fraudulent. 7. To support his contention, learned counsel for the respondents has relied on the following judgments :- I. Kamlesh Kumari & Ors. Vs. State of U.P. & Anr., (2015) 13 SCC 689 . II. M.Vinod Kumar Vs. H.D. Kumaraswamy, 2017 AllSCR 147 (Cri). III. Pratibha Vs. Rameshwari Devi & Ors., (2007) 12 SCC 369 . IV. M/s. Medohl Chemicals & Pharma Pvt. Ltd. Vs. Biological E. Ltd., (2000) 3 SCC 269 . V. Ajay Kumar Das Vs. State of Jharkhand & Anr., (2011) 12 SCC 319 . VI. State of Haryana Vs. Bhim Sain & Ors., (2000) 10 JT 308 . 8. Learned Public Prosecutor has submitted the investigation report in the aforesaid FIR No.14/2017 received from SHO, PS Sindhi Camp, Jaipur West, wherein it has been stated that after detailed investigation, it was found that the accused-persons have sold many Villas in the residential scheme namely "Princessa" to multiple purchasers. The construction of the proposed Villas have not yet been completed and the purchasers have taken possession of incomplete Villas in order to secure their money. 9. In view of the investigation status report, learned Public Prosecutor submits that on bare perusal of the FIR and the facts established through investigation, it is apparently clear that no case is made out to quash and set-aside the FIR No.14/2017. I have given thoughtful consideration to the arguments advanced by rival sides and perused the material available on record. 10. I have given thoughtful consideration to the arguments advanced by rival sides and perused the material available on record. 10. On bare perusal of the FIR No.14/2017, registered at PS Sindhi Camp, Jaipur it reveals that the complainants were persuaded by the accused-petitioners, who happened to be Directors of M/s. Comfort Living (Hotels) Pvt. Ltd. to invest their money in the proposed residential scheme of Villas "Princessa". They were also assured of the safe investment and heavy profits. The assurance was also given to deliver the possession of the Villas within six months with further assurance that in case of failure to do so, the amount invested will be repaid with the amount of interest and compensation. Relying upon such assurance, the complainants, who were in intimate relations with the accused-persons invested heavy money in terms of US dollars worth more than Rs.5 crores in INR. The facts mentioned in the FIR further reveal that despite reminders at different points of time by the complainants, the assurance was not fulfilled. Neither the possession of Villas were handed-over nor the invested money alongwith amount of interest and compensation was paid to the complainants, as assured earlier. 11. Learned Senior Advocate Mr. Mathur appearing for the petitioners has contended that the compromise could not be kept by the accused-petitioners on account of the financial hardships, they had to face on the later point of time. There was no intention on part of the accused-petitioners at the very inception of the agreement to defraud the complainants. 12. In this regard much reliance has been placed by learned Senior Advocate on Sunita Gupta Vs. Anil Triloknath Sharma & Ors.. On going through this judgment, it appears that the dispute in the matter was between two partners of the firm, which was working as agent of the principal firm being M/s. Johnson & Johnson Ltd. One rival partner dragged the principal company into criminal litigation to recover the dues which the principal company had already paid to the other partner. The fact of controversy between two partners was also admitted by the complainant. Since the amount was paid by the principal company to one of the contending partners, the FIR lodged against the principal company was quashed by the High Court and the judgment was upheld by the Hon'ble Supreme Court. But this is not the fact situation in the case in hand. Since the amount was paid by the principal company to one of the contending partners, the FIR lodged against the principal company was quashed by the High Court and the judgment was upheld by the Hon'ble Supreme Court. But this is not the fact situation in the case in hand. No payment has ever been paid by the accused-petitioners to any of the complainants. 13. Learned Senior Advocate has also relied upon Gagan Kishore Srivastava Vs. State & Ors.. The facts of the case reveal that the payment was not made because there was dispute regarding quality of the goods delivered and also because of the late delivery of the goods. In such situation, it was found that the facts mentioned in the FIR does not disclose commission of offence and it was a dispute of civil nature only. Further, criminal prosecution was lodged after a lapse of four years. In my considered view, the facts of the case of Gagan Kishore Srivastava are also quite different from that of the case in hand. Therefore, the judgment does not render any assistance to the accused-petitioners. 14. Another judgment relied upon by learned counsel for the petitioner is Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors.. It was held therein that every breach of contract would not give rise to offence of cheating and only when there was a deception played at the very inception, it will tantamount to cheating. The facts of the case were that the appellant Company hired the services of respondent-complainant to settle the loan amount due towards the company and it was agreed to pay Rs.75 lacs. towards consultancy fees for the above service. The agreement was time bound and the amount of Rs.5 lacs. paid to the complainant through cheque was to be obtained by encashment of the cheque after the acceptance letter is issued from the Bank on or before 30.10.2008. The company was also assured by the complainant to settle the loan amount at Rs.8.25 crores, but later on, nothing fructified on behalf of the complainant and the loan could be settled only by the continued efforts of the appellant by making payment of Rs.10.50 crores as against Rs.8.25 crores. In this view of the fact, the appeal was allowed and the private complaint filed on behalf of the complainant against the company was quashed. In this view of the fact, the appeal was allowed and the private complaint filed on behalf of the complainant against the company was quashed. Facts of this case are also not akin to the facts of the matter in hand. 15. In Mohd. Ibrahim & Ors. Vs. State of Bhinar & Anr., it has been held that the criminal courts should ensure that criminal proceedings are not misused for settling the dispute or pressurising the parties to settle their disputes. It has further been held that in some cases civil disputes may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. Applying this principle to the facts of the case in hand, I am of the considered opinion that though it apparently looks that the dispute is civil in nature having been arisen on account of the investment made by the complainants, yet on going deep into the real controversy, it reveals that the element of criminality is not completely absent therein. 16. The facts mentioned in the FIR reveal that the complainants agreed to invest the money to the tune of Rs.5 crores INR on the assurance given by the accused-petitioners. The assurance was two fold, firstly, to deliver the possession of Villas to be constructed in the residential scheme and secondly, in case of failure to do so, to refund the amount alongwith interest and compensation. Even if, it is assumed that the dispute arose out of the investment, but it cannot be termed as a mere civil dispute only on this count. The criminality of the accused-petitioners is reflected right from the inception of the agreement by alluring the complainants to invest while assuring them to repay the amount of investment alongwith interest and compensation. Complainants were also assured for huge profit and secured investment against the Villas, but later on, it revealed that promises were not fulfilled by the accused-petitioners. In this situation, this cannot be completely ruled out that their intention was not to cheat or defraud the complainants at the very inception. The conduct of the accused-petitioners can certainly be looked into to infer about their intention at the initial stage. Threatening the complainants for dire consequences on making reminders show the criminal intention of the accused-petitioners. In this situation, this cannot be completely ruled out that their intention was not to cheat or defraud the complainants at the very inception. The conduct of the accused-petitioners can certainly be looked into to infer about their intention at the initial stage. Threatening the complainants for dire consequences on making reminders show the criminal intention of the accused-petitioners. The facts revealed in the investigation report that many Villas were sold by the petitioners to more than one person also indicate about their criminal intention. 17. On perusal of the judgments relied upon by learned counsel appearing for the respondents, it is found that the factual defence taken by the accused-petitioners cannot be taken into consideration for quashment of FIR. That defence is required to be adjudicated during the course of trial. The FIR cannot be quashed on the ground of such factual defence. This has been held by the Hon'ble Supreme Court in M. Vinod Kumar's case. In view of it, the defence raised on behalf of the accused-petitioners that they could not fulfill their promise because of financial hardships cannot be taken into consideration at this juncture. In Kamlesh Kumari's case, an amount of Rs.42 lacs was paid by the respondent to the appellants in several installments which the appellants dishonestly retained with them. The sale deed was also not executed in favour of the appellants despite several reminders. Out of that amount only Rs.5 lacs. were repaid to the respondent. The facts are quite akin to the facts of the case in hand. The Hon'ble Supreme Court held that in such situation FIR cannot be quashed on the ground that the dispute between the parties in substance was of the property dispute. 18. In M/s. Medohl Chemicals & Pharma Pvt. Ltd., it was held that availability of the civil remedy for breach of contract is no ground to quash the criminal proceedings. Both civil and criminal remedies can be pursued in diverse situations. It was further held that to exercise the inherent powers under Section 482 Cr.P.C. the only requirement is to see whether continuance of the criminal proceedings would be total abuse of process of Court. Essentially, I do not find such situation to exist here looking to the facts of the case in hand. 19. It was further held that to exercise the inherent powers under Section 482 Cr.P.C. the only requirement is to see whether continuance of the criminal proceedings would be total abuse of process of Court. Essentially, I do not find such situation to exist here looking to the facts of the case in hand. 19. In view of the discussion made above, this Court does not feel inclined to exercise powers under Section 482 Cr.P.C. to quash and set-aside the FIR No.14/2017 registered at PS Sindhi Camp, Jaipur. Considering the contentions raised by learned counsel for the petitioner about the offence under Section 477-A IPC that the accused-petitioners were neither clerk, officer or servant and therefore, this offence cannot be levelled against them and also some other contentions raised by learned counsel in regard to other offences, this Court deems it proper to allow the liberty to raise contentions available to the petitioners before the trial court at the time of framing of the charge. 20. In the result, the misc. petition stands dismissed with the liberty aforesaid.