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2019 DIGILAW 46 (JK)

Naveen Chadha v. Krishan Lal

2019-02-01

SANJAY KUMAR GUPTA

body2019
JUDGMENT : Sanjay Kumar Gupta, J. Through the instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of the proceedings pending before the learned SubRegistrar (JMIC) Jammu in case titled, Krishan Lal Abrol vs. Naveen Chadha (file No.12/Complaint) as also order dated 08.03.2014, whereby the process has been issued and order dated 08.09.2015 whereby the petitioner has been charge-sheeted for the alleged commission of offence under Section 420 RPC. 2. The case of the petitioner is that a false and frivolous complaint has been filed against him under Section 420 of Ranbir Penal Code in the Court of learned Sub-Registrar (JMIC), Jammu, wherein process was issued and on the basis of the statements of the respondent and one witness at the pre-charge stage and now the trial court has framed the charge under Section 420 RPC against the petitioner herein. It is stated that the allegations in the complaint are that the petitioner had entered into an agreement to sell a shop situated at H.No.721, Sarwal, Jammu measuring 22'x10' on 29.09.2012 and thereafter the agreement was extended from time to time and ultimately the petitioner failed to execute sale deed in favour of the respondent as the shop was mortgaged with the J&K Bank (Branch Rehari), Jammu as such, the refusal on the part of the petitioner amounts to cheating and fraud punishable under Section 420 of Ranbir Penal Code. It is stated that from the bare perusal of the complaint and the statement of the complainant, offence under Section 420 of the Ranbir Penal Code is not made out, as such, the allegations are false, baseless and concocted. It is stated that from the bare perusal of the complaint and the statement of the complainant, offence under Section 420 of the Ranbir Penal Code is not made out, as such, the allegations are false, baseless and concocted. It is further stated that the main allegations made in the complaint filed by the respondent in para No.2 are "that complainant in the month of September, 2012 came to know that accused is selling a shop of size 22'x10' falling in Khasra No.864, Toph Sherkhania and said shop is situated on the frontal portion of H.No.721 Sarwal Chowk, Jammu of which the accused is the owner" and allegations in Para No.3 of the complaint are "that complainant met the accused and visited the said shop of accused at above mentioned address and accused assures the complainant that the said shop which he is selling in his ownership property free from all/any sorts of encumbrances and dispute as such deal was struck between complainant and accused wherein complainant agreed to buy and accused agreed to sell the above mentioned shop without roof for total sale consideration of Rs. 12,00,000/- (Rupees twelve lacs only) leading to execution of agreement to sell dated 20.09.2012 by and between accused and complainant.? 3. It is contended that going by the averments made by the respondent in his complaint referred to above, statement recorded and the relevant provisions of law as contained in Sections 415 and 420 of the Ranbir Penal Code, no offence whatsoever is made out against the petitioner and the complaint filed by the respondent is an abuse of process of law, yet the court below issued the process against the petitioner vide order dated 08.03.2014. It is further contended that if all the allegations made are taken as true even then no case is made out against the petitioner, going by the provisions of law and as such the complaint as well as the proceedings initiated on 08.03.2014 and the order passed by the court below dated 08.09.2015 deserve to be quashed. 4. Learned counsel for the petitioner states that after filing of the complaint against the petitioner under Section 420 of the Ranbir Penal Code, the respondent/complainant served a Legal Notice through his counsel upon the petitioner bearing Ref. 4. Learned counsel for the petitioner states that after filing of the complaint against the petitioner under Section 420 of the Ranbir Penal Code, the respondent/complainant served a Legal Notice through his counsel upon the petitioner bearing Ref. No. 121/RSS dated 03.06.2014, stating therein that my client (respondent herein) was and is still ready and willing to complete the purchase and is ready to pay balance amount Rs. 5,00,000/- (Rupees Five lacs only). It is stated that the respondent was having the knowledge of the shop being mortgaged with the bank as per the recitals of the Agreement dated 28.07.2013, wherein it was mentioned that shop is mortgaged with the Bank as soon as the balance payment is made by the respondent, the shop will be redeemed and proper sale deed with respect to shop will be executed, but the respondent failed to make the balance payment to the petitioner and as per condition in the agreement, the advance amount paid by the respondent gets forfeited. The complaint does not disclose commission of any offence because the agreement to sell and any dispute thereof is purely of civil nature, as such, no process could be issued against the petitioner and therefore no charge could have been framed against the petitioner. The allegations made in the complaint even if they are taken at their face value and accepted in its entirty do not constitute any offence as against the petitioner. 5. The petitioner has challenged the orders dated 08.03.2014 of court below of taking cognizance and 08.09.2015 of framing of charge on the following grounds:- (a) That the order impugned and proceedings are ex-facie are abuse of process of law and as such are non-est in the eyes of law. Under article 21 of the constitution of India the petitioner has a vested fundamental right to be tried only in accordance with the procedure established by law. (b) That the order impugned is ex-facie against law and facts of the case. (c) That the trial court while passing the order impugned, has lost sight of the mandate of law and as such the order impugned deserves to be quashed. (b) That the order impugned is ex-facie against law and facts of the case. (c) That the trial court while passing the order impugned, has lost sight of the mandate of law and as such the order impugned deserves to be quashed. (d) That by framing the charge against the petitioner under Section 420 of Ranbir Penal Code, the trial court has failed to appreciate that matter being purely of civil nature and criminal proceedings are manifestly barred by law, for the offence, which do not appear to have been committed, the trial court has abused the process of law which has resulted in miscarriage of justice to the petitioner. (e) That while passing the impugned order, that trial court has misinterpreted, misunderstood and misapplied the law. (f) That the complaint is significantly silent as to when was the offence of cheating committed by the petitioner, the learned court has, thus, erred in passing the order impugned against the petitioner by passing the same in a mechanical manner. (g) That no offence of cheating punishable under Section 420 of Ranbir Penal Code can be said to have been made out against the petitioner as the element of dishonest intention at the beginning of the transaction, which is sine-quo-non for attracting Section 415 of the Ranbir Penal Code is absent in the allegation and preliminary proof furnished by the respondent before the court. The allegation made in para Nos. 2 and 3 of the complaint itself show that it was the respondent who approached the petitioner for the sale of shop and not the petitioner and thereby cannot be any inducement on the part of the petitioner and as such the proceedings initiated by filing the complaint under Section 420 RPC is an abuse of process of law. (h) That prior to the filing of the complaint by the respondent, the petitioner herein filed a civil suit for permanent prohibitory injunction against the respondent with respect to the same shop apprehending foul play by the respondent and learned court of Sub-Registrar (Munsiff) vide order dated 03.03.2014 has restrained the respondent. (h) That prior to the filing of the complaint by the respondent, the petitioner herein filed a civil suit for permanent prohibitory injunction against the respondent with respect to the same shop apprehending foul play by the respondent and learned court of Sub-Registrar (Munsiff) vide order dated 03.03.2014 has restrained the respondent. (i) That it is pertinent to mention here that the respondent had also filed a civil suit for specific performance of contract dated 29.02.2012 against the petitioner herein and learned Additional District Judge, Jammu has passed the interim order dated 12.08.2015 whereby the petitioner has been temporarily restrained from cheating any third party interest in the suit property. (j) That the criminal complaint and the process issued against the petitioner also deserves to be quashed because the same is not inconformity with the provisions of Section 204 of the Code of Criminal Procedure inasmuch as, the learned court below has neither recorded any satisfaction with regard to the commission of offence, nor has formed any opinion while taking the cognizance with regard to the existence of the sufficient grounds for proceedings with the case. (k) That the process issued by the learned Magistrate is bad in law and an abuse of process of the court as by reading the complaint is its entirety would clearly demonstrate respondents attempt to misuse the process of court to settle a contractual dispute. The complaint filed by the respondent does not disclose commission of any offence justifying the issuance of process against the petitioner. The sine-quo-non for issuance of process under Section 420 of the RPC is existence of ingredients which constitute the offence. The respondent has not alleged any such facts on the basis whereof ingredients of offence under Section 420 RPC may be set to have been made out and such proceedings initiated deserves to be quashed. 6. Other side has filed objections, wherein it has been stated that he is a senior citizen of more than 79 years of age, who has been duped of his hard earned money, as such, is the victim of fraud committed by petitioner. 7. 6. Other side has filed objections, wherein it has been stated that he is a senior citizen of more than 79 years of age, who has been duped of his hard earned money, as such, is the victim of fraud committed by petitioner. 7. That petitioner/accused has cheated him with a fraudulent intention, deceptively induced the respondent to purchase/pay the money for the purchase of a shop of petitioner, concealing the factum of same being mortgaged with J&K Bank Rehari Branch, Jammu and further more making false representation to the respondent regarding status of the said shop thereby deceiving the respondent by way of representing the fact which was not true and is delivered intentionally to induce the respondent to act upon such false representations in order to do an act which the respondent would not do otherwise had he been aware that such representations are not true. That first agreement to sell with respect to the shop of petitioner was executed by and between petitioner and respondent on 29.09.2012, wherein the petitioner represented and assured the respondent that said shop of his under sale is free from all encumbrances, burden, litigation and there is no legal defect in his title of the said shop believing him the respondent paid Rs. 1,10,000/- cash and a payees account cheque of Rs. 90,000/- in the name of petitioner as an advance. The petitioner with a fraudulent intention, deceptively induced the respondent to purchase the said shop knowing perfectly well that said shop stands mortgaged and he is not competent to sell, he executed agreement to sell of encumbered shop representing as unencumbered; had respondent aware of status of said shop, he might have not entered into transaction at all and gave advance money to petitioner. That cheating/fraud did not stop here as some days after the agreement to sell petitioner again approached the respondent requesting more advance payment and to gain confidence of respondent had offered to handover possession of said shop to respondent after receiving more advance payment of Rs. 5,00,000/- (Rupees Five Lakhs) from respondent. The said facts were reduced in writing duly signed by respondent and petitioner wherein petitioner again assured the respondent that he will at the earliest procure and provide the respondent with revenue document required for execution of sale deed of said shop. 5,00,000/- (Rupees Five Lakhs) from respondent. The said facts were reduced in writing duly signed by respondent and petitioner wherein petitioner again assured the respondent that he will at the earliest procure and provide the respondent with revenue document required for execution of sale deed of said shop. Thereafter started never ending excuses of petitioner in seeking more time to furnish the relevant documents of said shop and getting extended the time by way of further agreements dated 29.09.2012, 18.10.2012, 29.11.2012, 18.12.2012, 31.01.2013 and 05.03.2013 solely due to the failure of the petitioner to provide revenue documents, map, valuation report i.e. documents required for sale deed of said shop and said fact was consistently mentioned in the above mentioned subsequent agreements seeking time and it was only after repeated approaches of respondent to petitioner for providing required documents pertaining to said shop so that remaining sale amount be paid to petitioner subject to sale deed being executed in favour of respondent, it was disclosed by petitioner for the first time to the shock and astonishment of respondent on 28.07.2013 when in continuation to previous agreements that said shop stands mortgaged by petitioner with J&K Bank, Rehari Branch, Jammu against which petitioner availed loan that too much before the time and during execution of agreement in respect of said shop is mortgaged with bank petitioner showed his inability to sell the said shop. The said agreement dated 28.07.2013 bears the signature as well as thumb impression of petitioner/accused but complainant did not sign the said agreement as petitioner on his own and to hide his fraud added few more conditions which were alien to the original sale agreement. 8. I have considered the rival contentions and law on the subjects. 9. In support of his contention learned counsel for the petitioner relies upon the decisions of the Hon'ble Supreme Court reported in titled, M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. & Ors., AIR (2006) SC 2780; and titled, Ram Biraji Devi and Anr. Versus Umesh Kumar Singh and Anr., AIR 2006 SC 2035 Reliance is also placed on the judgments rendered by this Court reported in titled, Geeta Devi Versus Sudesh Kumar Sharma, (2007) CriLJ 433; and Bashir Ahmed Versus State of J&K and others decided on 30.05.2018 (561-A No.492/2016). 10. Versus Umesh Kumar Singh and Anr., AIR 2006 SC 2035 Reliance is also placed on the judgments rendered by this Court reported in titled, Geeta Devi Versus Sudesh Kumar Sharma, (2007) CriLJ 433; and Bashir Ahmed Versus State of J&K and others decided on 30.05.2018 (561-A No.492/2016). 10. The impugned order dated 08.03.2014 reads as under: "This complaint has been transferred to this Court by the learned CJM Udhampur for disposal under law, office to diarize it. Complainant along with learned counsel and one witness is present. Preliminary statements of the complainant and one witness on oath have been recorded and are made part of the file. Perused the contents of the complaint, preliminary statements of the complainant and his witness on oath, annexed record and on hearing the submission of the complainant and his learned counsel, I am of the opinion that there is sufficient material on the file to proceed further in the case. Accordingly process is hereby issued against the accused person for commission of offence under Section 420 RPC and summons are issued in the first instance for the service of the accused person. Put up on 20.03.2014." 11. The impugned order dated 08.09.2015 reads as under: "Complainant along with counsel present, accused along with counsel present. Heard Arguments on charge and prima facie commission of offence under Section 420 RPC is disclosed and hence he is charged with the said offence. Charge sheet prepared separately and be made part of this file. Charge is read over to accused who pleaded not guilty and claimed trial. As such, learned counsel for complainant is directed to disclose to the court on next date to who he wishes to cross examine put up on 29.10.2015." 12. Law with regard to quashing of FIR/complaint is well settled. This can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expressions "ends of justice" and "to prevent abuse of process of any court' are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. 13. Section 415 of the Ranbir Penal Code provides as under:- "415:- 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 of omission causes or is likely to cause damage or harm to the person in body, mind, reputation or properly, is said to "cheat". 14. Similarly Section 420 of the Ranbir Penal Code provides as under:- "420:- Cheating and dishonestly inducing delivery of property-whoever cheats and thereby dishonestly induces the person deceives 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". 15. From bare perusal of these relevant sections, it is evident that ingredients required for establishing the offence under section 420 IPC are as under:- (i) Cheating; (ii) Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and (iii) Mens rea of the accused at the time of making the inducement. 16. Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. The term "cheating" has been defined under Section 415 of the Indian Penal Code. The term "cheating" has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C. Section 415 of IPC states that 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. Section 24 defines what is "acting dishonestly". When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly. The word property may basically be defined as all things which can be measured in terms of money. The said thing should be capable of being possessed by a person for the exclusive use or enjoyment as owner of that thing. Section 25 defines the term "Fraudulently". It says that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 18. Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property. 19. One has to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record. 20. It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record. 20. Distinction between mere 'breach of contract' and the 'offence of cheating' depends upon the intention of the accused at the time of inducement which must be judged by his subsequent act but the subsequent act is not the sole standard. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is the substance of the offence. It is necessary to show that he had fraudulent or dishonest intention at the time of making the promise to hold a person guilty for the offence of cheating. From his mere failure to keep up promise consequently such a culpable intention cannot be presumed right at the beginning, that is when he made the promise. 21. In present case only foremost ground taken is that the case pertains to civil dispute, but has been given shape of criminal nature. 22. From bare perusal of facts of case, it is evident that petitioner induced the respondent to purchase shop situated at H.No. 721, Sarwal, Jammu measuring 22'x10' by virtue of agreement to sell on 29.09.2012; perusal of this agreement clearly reveals that petitioner has no where mentioned in it that shop in question has been mortgaged with J&K Bank Rehari Branch; he has otherwise mentioned that said shop under sale is free from all encumbrances, burden, litigation and there is no legal defect; he has thus concealed the factum of same being mortgaged with J&K Bank Rehari Branch, Jammu; petitioner, thus, has made false representation to the respondent regarding status of the said shop; petitioner with a fraudulent intention, deceptively induced the respondent to purchase the said shop knowing perfectly well that said shop stands mortgaged with bank and he is not competent to sell it. Petitioner then again approached the respondent requesting more advance payment and to gain confidence of respondent had offered to handover possession of said shop to respondent after receiving more advance payment of Rs. Petitioner then again approached the respondent requesting more advance payment and to gain confidence of respondent had offered to handover possession of said shop to respondent after receiving more advance payment of Rs. 5,00,000/- (Rupees Five Lakhs) from respondent; then again executed an agreement on 29.11.2012 and undertakes to supply map and valuation report of shop by 18.12.2012, but again failed. Then petitioner continued on extending time in furnishing requisite document of shop upto 31.1.2013, then to 28.2.2013, then 5.3.2013 and then 28.3.2013, but never fulfilled the promise. 23. It further appears that petitioner with dishonest intention again prepared an agreement on 28.7.2013, where he for the first time said that shop is mortgaged with bank, on which respondent refused to sign. These all sequence of events would show that criminal intention of cheating of petitioner was there right from the beginning when he firstly executed the agreement to sell of shop situated at H.No. 721, Sarwal, Jammu measuring 22'x10' by virtue of agreement to sell on 29.09.2012. When there is an element of criminal intention of cheating though in civil transaction, criminal proceeding are not barred. 24. There is no dispute with regard to law cited by counsel for petitioner; but facts of those cases are quite different; firstly facts are to be seen then law made on given facts, is to be applied. 25. In view of above, this petition is dismissed. Stay, if any, is vacated.