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2019 DIGILAW 335 (MP)

Bheemsingh S/o Meharban Singh v. State of M. P.

2019-04-24

S.K.AWASTHI

body2019
ORDER : 1. This revision application under section 397 read with section 401, Criminal Procedure Code has been preferred against the order dated 20-7-2017 passed in Sessions Trial No. 277/17 by Ist A.S.J. Ujjain, whereby charges under sections 294, 406, 420, 467, 468, 471, 120-B and 506 Part-II of the Indian Penal Code (for short ‘IPC’) have been framed against the applicant. 2. Facts giving rise to filing of present revision application are that respondent No. 2 and applicant (being a power of attorney holder of landlord Jalam Singh) entered into an agreement for sale and purchase respectively of land bearing survey No. 98/03 admeasuring 0.40 hectares situated at village Badodiyakaji, Tehsil Ghattiya, district Ujjain. According to the allegation levelled by the respondent No. 2, sale consideration agreed between the parties was Rs. 6,16,000/- and the applicant received Rs. 2,21,000/- as earnest money in furtherance to the agreement. In spite of the said agreement, when respondent No. 2 urged the applicant to execute the sale deed in his favour, he did not execute the same and abused and threatened him to kill. In the meantime, Jalam Singh sold the aforesaid land to one Smt. Gokulbai W/o Soudansingh for a consideration of Rs. 7,36,000/- thereby the applicant committed act of cheating. Respondent No. 2 complained against the applicant and on the basis of which respondent No. 1 registered an FIR for the offences indicated herein above and submitted the charge sheet before the competent Court of jurisdiction which led to framing of charges against the present applicant. Hence, applicant approached this Court challenging the impugned order framing charges against him. 3. Learned counsel for the applicant has submitted that instant case is clearly a dispute of civil nature which has been given a colour of criminal case in order to pressurize the present applicant to enter into a settlement so that the applicant may approach respondent No. 2 for settlement in the matter by paying some money. 3. Learned counsel for the applicant has submitted that instant case is clearly a dispute of civil nature which has been given a colour of criminal case in order to pressurize the present applicant to enter into a settlement so that the applicant may approach respondent No. 2 for settlement in the matter by paying some money. He has further submitted that the narration of events, as per the charge sheet, did not satisfy the ingredients of offences charged against the applicant for the reason that applicant was always ready and willing to execute the sale deed in favour of respondent No. 2, however, respondent No. 2 has not paid the remaining consideration amount so as to execute the sale deed within a prescribed period of three months as mentioned in the sale agreement. If the applicant failed to execute the sale deed in favour of respondent No. 2, then as per the condition of the agreement, he is having the right to take recourse of civil suit for specific performance of contract or refund of earnest money, therefore, no criminal liability is made out against the applicant. 4. Per contra, learned counsel for the respondents have submitted that at the stage of framing of charge, the trial Court does not enjoy much latitude for taking a view of discharge and only the prosecution material is to be examined. It is further submitted that once the sale deed is executed by Jalam Singh (owner of the land) in favour of Smt. Gokulbai, the subsequent sale deed is clearly an act of cheating as Jalam Singh and applicant have no right available to have executed a subsequent sale deed in favour of other person and due to the said act, respondent No. 2 has been deprived of his legitimate right to enjoy the property. 5. I have taken note of rival contentions advanced on behalf of the parties and perused the record in their context. 6. Before moving ahead with the adjudication of rival contentions, it is imperative that scope of consideration at the stage of framing of charge be clearly denied so that the appreciation of evidence must take place within the frame work. I have taken note of rival contentions advanced on behalf of the parties and perused the record in their context. 6. Before moving ahead with the adjudication of rival contentions, it is imperative that scope of consideration at the stage of framing of charge be clearly denied so that the appreciation of evidence must take place within the frame work. In this regard, reference may be made to the observation made by the Supreme Court in the case of Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135 , which is being reproduced as under: 12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Union of India vs. Prafulla Kumar Samal and Another, (1979) 3 SCC 5. 7. It is clear from the above that the submission put forth by the learned counsel for the respondents is clearly contrary to the law laid down by the Supreme Court and the Court enjoys enough latitude for taking note of the circumstances and the facts which indicate that the chances of conviction is bleak. 7. It is clear from the above that the submission put forth by the learned counsel for the respondents is clearly contrary to the law laid down by the Supreme Court and the Court enjoys enough latitude for taking note of the circumstances and the facts which indicate that the chances of conviction is bleak. 8. Now adverting to the merits of the case, it would be appropriate to reduce in writing the admitted position between the parties. Both the parties have agreed to the effect that on 30-8-2012 an agreement of sale was executed between them for sale of land bearing survey No. 98/03 admeasuring 0.40 hectares situated at village Badodiyakaji, Tehsil Ghattiya, district Ujjain. At the time of execution of agreement, applicant agreed to sell the aforesaid land for a sale consideration of Rs. 6,16,000/- and he has received Rs. 2,21,000/- as earnest money. As per condition No. 4 of the agreement, respondent No. 2 was agreed to pay the remaining sale consideration within a period of three months for executing the sale deed. However, there is nothing on record to show that within the aforesaid period the respondent No. 2 was ready to perform his part under the agreement and in spite of that applicant did not execute the sale deed in favour of respondent No. 2. As per condition No. 9 of the agreement, a right was given to the respondent No. 2 that if applicant refuses to execute the sale deed in favour of respondent No. 2 within the stipulated period, then he has a right to go before the competent Court for filing civil suit for specific performance of contract so as to get registered the sale-deed through the Court by paying remaining consideration amount. Therefore, in the opinion of this Court, these facts give rise to a civil dispute. In this regard, it would be appropriate to refer to the law laid down by the Supreme Court in which ingredients of offence punishable under section 420, Indian Penal Code are discussed. The Supreme Court in the case of Inder Mohan Goswami and Others vs. State of Uttaranchal and Others, (2007) 12 SCC 1 has laid down ingredients of section 415 of Indian Penal Code and the context in which they are to be appreciated. The relevant portion of the judgment is reproduced herein-below: 41. Section 415, Indian Penal Code thus requires:- 1. The relevant portion of the judgment is reproduced herein-below: 41. Section 415, Indian Penal Code thus requires:- 1. Deception of any person. 2. (a) Fraudulently or dishonestly inducing that person:- (i) to deliver any property to any person. (ii) to consent that any person shall retain any property. (b) Intentionally inducing that person 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. 42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. 9. Perusal of the above gives not an iota of doubt that charge under section 420, Indian Penal Code can only be imposed in the circumstances when at very inception the accused had intention to deceive. In this context, observation of the Apex Court in the case of M/s GHCL Employees Stock Option Trust vs. M/s India Infoline Ltd. (2013) 4 SCC 505 in para-13 deserves to be reproduced as it has been clearly laid down that the facts which have hint of cheating or breach of trust can be civil or criminal dispute in the following terms: 13. There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence. 10. In the case of All Cargo Movers (I) Pvt. Ltd. vs. Dhanesh Badarmal Jain, AIR 2008 SC 247 the Supreme Court has held as under: “We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No. 1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.” 11. The Apex Court in the case of Paramjeet Batra vs. State of Uttarakhand, (2013) 11 SCC 673 has held as under: “While exercising its jurisdiction under section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of Court.” 12. In the context of the law laid down by the Hon’ble Apex Court, this Court has examined the complaint and documents filed along with the charge sheet and after its perusal, I have no hesitation in holding that the applicant cannot be criminally prosecuted rather it is clear that respondent No. 2 did not lose his right to execute the sale deed with respect to the land in question by filing a civil suit for specific performance of contract. From the record it is clear that respondent No. 2 within a span of more than three months had taken no step to approach the present applicant for concluding the transaction nor has made any effort to perform his part in the agreement. 13. Taking this view of the matter, it is clear that subsequent execution of the sale deed dated 6-2-2013 was not an act which may attract criminal liability in the light of the fact that since 30-11-2012 respondent No. 2 made no efforts in ensuring that he has performed his part completely. Neither any notice was issued nor any suit for specific performance of contract was filed. 14. Consequently, the revision petition is allowed and the impugned order, so far as it relates to the present applicant is concerned, is hereby quashed. The applicant is discharged from the charges framed against him. Let a copy of this order be sent to the concerned trial Court for information and compliance. C.C. as per rules. Revision allowed.