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2019 DIGILAW 763 (ALL)

Prabodh Mohan Tiwari v. State Of U. P.

2019-03-27

MANOJ MISRA, VIVEK VARMA

body2019
ORDER : 1. Instant petition seeks quashing of a first information report (FIR), dated 26.9.2018, lodged by the respondent no.4 (informant) against the petitioners, as Case Crime No. 232 of 2018, at P.S. Lalkurti, District Meerut, under Sections 120-B, 406, 420 IPC,. 2. As parties are represented and affidavits have been exchanged between petitioners and the informant, with the consent of the learned counsel for the parties, this writ petition is being finally decided at the admission stage itself. 3. We have heard Shri S. K. Srivastava for the petitioners; learned AGA for the respondents 1 to 3; Shri Pushkar Mehrotra for the informant (respondent no. 4); and have perused the record. 4. To have a better understanding of the controversy, a brief narration of the background facts, as regards which there is no dispute between the parties, would be apposite. 5. The petitioner no.1 is the husband of petitioner no.2 and the petitioners 3 and 4 are sons of the petitioners 1 and 2. The petitioners are owners of property bearing House No. C-20, Jawahar Quarter, Meerut. A portion of this property, having an area of 139.35 sq meter, was subject matter of a registered agreement for sale, dated 12.02.2018, (Annexure C.A.1), executed by petitioners 1 & 2 in favour of informant and his wife. As per record, while executing the agreement, the petitioner no.1 (Prabodh Mohan Tiwari) signed for self and as power of attorney holder of his two sons, namely, Vidit Mohan (petitioner no.3) and Prakhar Mohan (petitioner no.4). According to the terms and conditions of the agreement, sale consideration was fixed at Rs. 90 lacs, out of which Rs. 32 lacs was provided by way of earnest money, and the sale deed was to be executed by 31.5.2018. The title of the agreement, as also internal page 7 of the agreement, suggests that possession was to be provided at the time of execution of sale deed. 6. There arose a dispute between the parties. On 29.05.2018, the respondent no.4 and his wife instituted suit no.423 of 2018 (Annexure No.2) in the court of Civil Judge (Senior Division) Meerut for specific performance of the agreement. Interestingly, in paragraph 5 of the plaint, which is at page 28 of the paper book, it is stated that, after execution of agreement for sale, possession of two rooms in the property was delivered by the defendants. Interestingly, in paragraph 5 of the plaint, which is at page 28 of the paper book, it is stated that, after execution of agreement for sale, possession of two rooms in the property was delivered by the defendants. On the other hand, the petitioners, on 28.08.2018, instituted SCC Suit No.29 of 2018 (Annexure No.3) against the respondent no.4 and his wife for rent and eviction from that portion by explaining the agreement for sale as a document of security in lieu of money taken from the informant and his wife to return loan taken by vendors from a Bank. It was also claimed that the informant and his wife entered into possession not in part performance of the agreement but as tenant thereof. 7. At this stage, the impugned FIR was lodged through an application under section 156(3) CrPC. The thrust of the allegations in the impugned FIR is that when the informant along with his wife went to the house of the petitioner no.1 on 20.04.2018, in connection with execution of sale deed, he met the elder son of petitioner no.1, namely, Vidit Mohan (petitioner no.3), who claimed that the power of attorney executed by him in favour of his father only enabled purchase of property and not its sale. It was thus alleged that the petitioner no.1 had made a false representation that he had authority to execute sale deed on behalf of his sons. It was also alleged that by making such false representation the informant and his wife were cheated by the petitioners 1 and 2 in conspiracy with their sons i.e. petitioners 3 and 4. 8. Petitioners have challenged the impugned FIR by claiming that already the respondent no. 4 and his wife have instituted Original Suit no. 423 of 2018 for specific performance of the agreement for sale and the petitioners have also instituted an SCC Suit No. 29 of 2018 for ejectment of the respondent no. 4 and his wife from the house in dispute, which is pending before the court, and that the dispute between the parties is purely of civil nature, therefore, the impugned FIR is liable to be quashed. A factual dispute has also been raised by claiming that agreement for sale was obtained fraudulently when it was just to be a document to secure a loan. 9. A factual dispute has also been raised by claiming that agreement for sale was obtained fraudulently when it was just to be a document to secure a loan. 9. To test the bona fides of the petitioners we, by our order dated 22.2.2019, had required the petitioners' counsel to seek instruction whether the petitioners are willing to deposit the earnest money received by them in an escrow account with a condition that it shall abide the decision of the civil court. In response to that, an affidavit was filed disclosing intent to deposit subject to a condition that the informant party releases its claim on the property. It was claimed by petitioners' counsel that since the informant and his wife have entered into possession therefore such condition has been put. Sri Pushkar Mehrotra, who appears for the informant, did not accept the offer and chose to contest the matter on merit. 10. Sri Pushkar Mehrotra, learned counsel for the respondent no. 4, has submitted that the petitioners no. 1 and 2 have dishonestly executed agreement for sale in favour of respondent no. 4 when they had no authority to represent the interest of their sons and their dishonest intention is writ large because they have not made unconditional refund of the money advanced and have subsequently resiled from the agreement by calling it a security document. 11. Sri Pushkar Mehrotra also pointed out that the police has added section 467 IPC amongst the charging sections during the course of investigation. 12. We have considered the rival submissions and have perused the record carefully. 13. The registered power of attorney, dated 29.04.2017, on the basis of which the petitioners no. 1 had entered into an agreement for sale of the property in dispute on behalf of his sons (petitioners 3 & 4), as regards which there is no dispute in the counter affidavit, is there on record as Annexure No.1 to the petition. A bare perusal of it would suggest that it is a general power of attorney executed by petitioners 3 and 4 in favour of their father (petitioner no.1) to look after all their properties and to undertake proceeding in that regard and to purchase properties on their behalf. The power of attorney does not specifically prohibit disposal of the property by the power of attorney holder. The power of attorney does not specifically prohibit disposal of the property by the power of attorney holder. Rather, at page 4 (running page 20 of the paper book) of the power of attorney, the power of attorney holder has been specifically authorized to take earnest money (Bayana) and to issue receipt as also execute sale deed, lease deed, agreement and gift. Therefore, it cannot be said that the petitioner no.1 had, while entering into an agreement for sale of the property, made any false statement that he had power to represent the interest of his sons in the property. Hence, there was no dishonest intention from the very beginning. 14. As the existence of power of attorney is not disputed and it is not claimed that such power of attorney is forged, dispute, if any, raised by the sons of the petitioners no. 1 and 2, as a result of which there had been difficulty in execution of the sale deed, as has been alleged in the impugned FIR, would generate a civil cause of action. Because it cannot be said that the petitioner no.1 made a false representation that he held power of attorney to represent his sons. That apart, it is not in dispute that the petitioners 1 and 2, in their own right, also had a share in the property. Moreover, in the suit, the informant and his wife claim to have entered into possession in part performance of the agreement. Under the circumstances, we are satisfied that the informant has failed to demonstrate that there existed dishonest intention on the part of the petitioner nos. 1 & 2 at the time when they were entering into an agreement for sale with respondent no. 4 and his wife. At this stage, it would be apposite for us to refer to a decision of the apex court in the case of Vesa Holdings Private Limited and Another versus State of Kerala and others, (2015) 8 SCC 293 , where, in paragraph 12 of the judgment, as reported, it was held: “From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and in only those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating.” As we have already found that there was no false representation at the time of entering into agreement as there existed power of attorney which, prima facie, authorised execution of sale deed as well as agreement, it cannot be said that there was any dishonest intention on the part of the petitioners 1 & 2 at the time when they entered into an agreement. The stand taken in civil proceedings that the agreement was a document of security to ensure refund of money is a subsequent conduct which would not make them liable for offence of cheating as the dishonest intention must be shown to exist from the very inception which, in our view, from the allegations made and the indisputable material brought on record, does not seem to exist. Hence, we are of the considered view that the offence of cheating is not made out. 14. In so far as offence of criminal breach of trust is concerned that is not made out, firstly, because the property belongs to the accused hence there is no entrustment of the property, and, secondly, in so far as refund of earnest money is concerned, there is no proper demand for its return. Rather, the informant and his wife have not given up their claim in the property and have sued for specific performance of the agreement and they also claim to have taken possession in part performance thereof, and are not willing to give up their rights. Hence, retention of the money would not amount to conversion or misappropriation of the money. Like wise, there is no material brought on record, or even shown or suggested to us, as to how an offence punishable under section 467 IPC has been added, particularly, when there is no allegation that a false document, within the meaning of section 464 IPC, was either set up or created. 16. In Paramjeet Batra V. State of Uttarakhand, (2013) 11 SCC 673 (paragraph 12 of the report), the apex court has held that where a civil dispute between the parties has been given a cloak of a criminal case and parties have already adopted civil remedy then High Court must not hesitate in exercising its extraordinary power to quash the proceedings. Under the circumstances, as the respondent no. Under the circumstances, as the respondent no. 4 along with his wife have already instituted a suit for specific performance of the agreement for sale and are pursuing that suit, the allegation that the petitioners had not refunded the money, despite demand, has no legs to stand. Hence, in our considered view, the offences punishable under Sections 406, 420 IPC are not made out. Once the principal sections are not applicable, charge of criminal conspiracy has no legs to stand. More so, because the sons of the petitioner nos. 1 and 2 were not directly privy to the agreement and their subsequent stand would only give a civil cause of action. Hence, in our view, lodging of the FIR is not at all warranted and the consequent investigation would amount to abuse of the process of law. 17. The writ petition is, accordingly, allowed. Impugned FIR dated 26.9.2018, registered as Case Crime No. 232 of 2018, under Sections 120-B, 406, 420 IPC, at P.S. Lalkurti, District Meerut and the consequential investigation is hereby quashed. Parties are free to ventilate their grievances before the Civil Courts. Any observation made by us will not prejudice the rights of the parties in civil proceedings. There is no order as to costs.