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2019 DIGILAW 452 (ORI)

Pradeep Kumar Nayak v. Deepak Shukla

2019-07-12

A.K.MISHRA

body2019
JUDGMENT : A.K. Mishra, J. In this proceeding U/s. 482 Cr.P.C., prayer has been made to quash the cognizance order dated 9.11.2009 passed by the learned SDJM, Bhubaneswar in 1CC Case No.1673/2009 (Annexure-2). 2. Vide impugned order, learned SDJM, Bhubaneswar has taken cognizance U/s.420/506 of IPC and proceeded against three accused persons, out of whom, one is the petitioner, while two others are opposite party nos.2 and 3 and the complainant is opposite party no.1. The present petitioner was the owner of a plot at Mouza-Kalarahanga. The complainant entered into an agreement with the petitioner-accused on 16.03.2005 to purchase the same and accused received total consideration amount of Rs.2,97,000/- (Rupees Two Lakhs Ninety Seven thousand) only. It was agreed that the sale deed would be executed within seven months. Instead of honouring the agreement, the accused sold the same property in favour of other two accused persons who are opposite parties 2 and 3 by Registered Sale Deed dated 10.04.2008. When the complainant confronted the situation, accused persons became furious and threatened him. The complaint was filed on 17.04.2009. Statement of two witnesses U/s. 202 of Cr.P.C. was recorded. As stated above on 9.12.2009, cognizance order was passed. 3. Learned counsel for the petitioner submits that the agreement which was filed with the complaint having revealed refund clause for consideration paid and the complainant having not filed any case after seven months stipulated therein for non-execution of Registered Sale Deed, it cannot be said that the accused had dishonest intention from the inception and for that offence U/s. 420 of IPC is not made out. Secondly, it is submitted that if the complaint petition and statement of the complainant recorded U/s. 200 of Cr.P.C. and of two witnesses recorded U/s. 202 Cr.P.C. are to be read as a whole, the ingredients of offence of criminal intimidation U/s.506 of IPC are not satisfied, because none of them has stated about the manner of threat, time and place. According to him, such omnibus general statement should not be taken into consideration as the complaint was filed for the breach of contract maliciously. 4. None appears on behalf of opposite parties to argue the matter. 5. Carefully perused the L.C.R., particularly the agreement (Annexure-2). The document is an agreement to sale dated 16.03.2005 executed between the complainant and accused-present petitioner. 4. None appears on behalf of opposite parties to argue the matter. 5. Carefully perused the L.C.R., particularly the agreement (Annexure-2). The document is an agreement to sale dated 16.03.2005 executed between the complainant and accused-present petitioner. Consideration money has been paid and it is agreed that the sale deed would be executed within seven months. The agreement has remedial clauses for non-performance which are extracted herein below, for ready reference:- "6. That, if the 1st party will fail to transfer the ownership of land or to execute the sale deed in favour of the 2nd party, then he will refund the total received consideration amount with the Bank rate of interest from the date of execution of this agreement to the 2nd party. 7. That, if the 1st party again fail to do so, then the 2nd party has liberty to take shelter before proper court of law for realization of total consideration money which he has paid to the 1st party i.e. Rs. 2,97,000/- (Rupees two lakh ninety seven thousand) only." 6. With regard to offence U/s. 420 of IPC, learned counsel for the petitioner has relied upon the decision in the cases of Sri Bikash Chandra Deb vrs. State of Orissa and another, (2008) 41 OCR 493 and V.Y. Jose & another vrs. State of Gujarat & another, (2009) 42 OCR 488 (SC). In Sri Bikash Chandra Deb (supra) decision, it has been stated that distinction between mere breach of contract and the offence of cheating is to be kept in mind. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but this subsequent conduct is not the sole test. In V.Y. Jose (supra) decision, it has been stated as follows:- XXX XXX XXX "12. For the purpose of constituting an offence of cheating, the complaint is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. XXX XXX XXX 15. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. XXX XXX XXX 15. There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the Court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. Section 482 of the Code of Criminal Procedure, saves the inherent power of the Court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a member of years although no case has been made out against him. It is one thing to say that a case has been made out for trail and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all. XXX XXX XXX 18. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of Court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functioning of the Trial Courts." In the case of Vinod Natesan vrs. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of Court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functioning of the Trial Courts." In the case of Vinod Natesan vrs. State of Kerala & others, 2019 (73) OCR 50 (SC), their Lordships of Hon'ble Apex Court, in the similar facts and circumstances of the case have stated that "merely because the original accused might not have paid the amount due and payable under the agreement or might not have paid the amount in lieu of one month Notice before terminating the agreement by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 of the IPC as alleged. We are in complete agreement with the view taken by the High Court." Tested in the touchstone of above law, if the facts of the case on face value are taken into consideration, it is found that for the breach of agreement and for non-refund of consideration amount, the dispute in its core is civil in nature and no criminal dishonest intention at the time of agreement can be inferred to attract the offence U/s.420 of IPC. 7. Admittedly, this complaint was not filed soon after expiry of the stipulated seven months of the agreement. The complainant has neither in the complaint petition nor in the initial statement recorded U/s. 200 of Cr.P.C. has stated specifically about the date, time and place of criminal intimidation. One of the witnesses, statement of P.W.2 recorded U/s. 202 Cr.P.C. has stated that accused nos. 2 and 3 gave push. Contrary to that, another witness has stated that the accused no.1 gave a push. Taking the entirety of allegations with regard to threat, it is found that ingredients of criminal intimidation as defined U/s. 503 of IPC are not satisfied. 8. The allegation regarding offence of criminal intimidation is omnibus in nature. The gamut of grain in this nature of allegations, being the breach of contract which is civil in nature, the continuance of the proceeding will be an abuse of the process of the court. 9. 8. The allegation regarding offence of criminal intimidation is omnibus in nature. The gamut of grain in this nature of allegations, being the breach of contract which is civil in nature, the continuance of the proceeding will be an abuse of the process of the court. 9. In the result, the order taking cognizance dated 9.11.2009 passed by the learned SDJM, Bhubaneswar in 1CC Case No. 1673 of 2009 as well as the proceeding as a whole is quashed. Accordingly, the CRLMC is allowed. LCR be returned immediately to the lower court.