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Allahabad High Court · body

2020 DIGILAW 1280 (ALL)

Satendra Kumar v. State of U. P.

2020-11-03

PANKAJ NAQVI, VIVEK AGARWAL

body2020
JUDGMENT : Heard Sri Uma Nath Pandey, learned counsel for the petitioners and Sri Deepak Mishra, the learned AGA. The informant was put to notice on 8.9.2020 and the office report dated 2.11.2020 indicates that neither acknowledgement nor any undelivered cover has been received. We have no option but to presume the service to be sufficient on the informant. This writ petition has been filed for quashing the FIR dated 26.6.2020, registered as Case Crime No.369/2020, under Sections 420/406/467/468 IPC, P.S. Partapur, Meerut. 1. The case set up in the FIR lodged by the informant/respondent no. 3 is that he in the capacity of Managing Director of Solitare Food Pvt. Ltd (for short the Company) entered into an agreement on 4.2.2013 with the petitioners for purchase of land for total sale consideration of Rs.2.05 Cr. for which payments were made by way of cash and RTGS upto 5.4.2013 but as sale deed could not be executed, the petitioners returned a sum of Rs.99 lacs to the informant upto 19.3.2015, leaving an unpaid balance of Rs.1.06 Cr. for which the petitioners executed a sale deed in favour of the informant on 15.9.2015 for a sale consideration of Rs.75 lacs, leaving a final unpaid balance of Rs.31 lacs. On repeated persuasion when the said unpaid balance was not paid, the petitioners with a view to harass the informant, filed a suit challenging the sale deed dated 15.9.2015. 2. It is submitted on behalf of the petitioners that assuming all the allegations in the FIR to be true, no alleged offence is made out as the dispute is essentially civil in nature, relating to unpaid amount, criminality is deliberately assigned only with a view to extract money. It is further submitted that the parties had trading relationship in which dispute arose wherein the petitioners learnt that the informant has been duping them which led the petitioners to challenge the sale deed dated 15.9.2015. 3. Learned AGA opposed the submission on the premise that merely because a civil dispute exists between the parties, is no ground to hold that criminality is not involved, as the matter is pending investigation. 4. We are noticing a spurt in registration of FIRs/complaints involving a civil dispute and the reason being that civil disputes take years to decide whereas life of a criminal case may or may not be short but it does cause harassment 5. 4. We are noticing a spurt in registration of FIRs/complaints involving a civil dispute and the reason being that civil disputes take years to decide whereas life of a criminal case may or may not be short but it does cause harassment 5. It is also a well established proposition of law that both civil and criminal proceedings can simultaneously co-exists as there is no universal principle of law that merely because a civil dispute is involved, no criminal case would be made out. The courts will have to take a call after examining the allegations made in the FIRs/complaints along with other materials, if any, in order to arrive at a conclusion as to whether cognizable offence is made out. If a cognizable offence is made out, criminal case can proceed notwithstanding that a civil dispute may also predominantly arise. But where no cognizable offence is made out, criminal proceedings may have to be nipped in the bud. 6. The offence under which the FIR has been lodged, are Sections 420/406/467/468 IPC. 7. Cheating has been defined in Section 415 of the Penal code 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 or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". The following are the essential ingredients of cheating: 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; or (iii) or intentionally induce 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 but that person, body, mind, reputation of property, is said to cheat. 8. To constitute cheating, fraud/deception has to be practiced by an accused at the time of entering into a transaction to induce the person so deceived to deliver any property to any person. 8. To constitute cheating, fraud/deception has to be practiced by an accused at the time of entering into a transaction to induce the person so deceived to deliver any property to any person. Once a transaction takes place between the parties, subsequent dispute may amount to breach of contract, but no offence under Section 420 IPC is made out. This is a classical difference between "cheating" and "breach of contract". 9. It is not the case of the informant that while entering into an agreement, there was any fraud or deception practiced by the petitioners so as to persuade the informant to enter into a deal with the petitioners. Once this essential ingredient is found to be lacking, no offence under Section 420 IPC is made out. 10. Section 467 relates to forgery of valuable security, will, etc; 468 relates to forgery for the purpose of cheating. In the above offences, forgery is common element in all. Forgery is defined in Section 463 as under:- 463. Forgery.— Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 11. Forgery is essentially preparation of false documents / electronic record / part of a document or electronic record to claim a title of property, etc. with intent to commit fraud. Section 464 defines making a false document as under: 464-Making a false document. — [A person is said to make a false document or false electronic record— First —Who dishonestly or fradulently— (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any [electronic signature] on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the 342 [electronic signature]. with the intention of causing it to be believed that such document or part of document, electronic record or 342 [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly — Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with 342 [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly —Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his 342 [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. False documents fall in 3 categories as provided under Section 464:- (i) When a person dishonestly or fraudulently signs or executes a document with the intention of causing it to be believed that such a document was made, signed, sealed, executed by or by the authority of a person to whom it purport to be, knowing fully well that it was not made, signed, sealed, executed or affixed, (ii) when a person dishonestly or fraudulently without any lawful authority, alters a document in material part thereon, after it was made/executed either by himself or by any other person, (iii) when a person dishonestly or fraudulently causes any person to sign, execute or alter a document, knowing that such by raising of unsound of mind or intoxication or by deception practised upon him, but he does not the contents of the document. To summarize a person can be said to prepare a false document:- (i) when he executes a document either claiming it to be someone else's or with the authority of a person to which it purports to be knowing that its not so, (ii) where a document is (iii) or tampered, (iii) where authentication in respect of a document is obtained by deception or the person is not in control of his senses. 12. Section 405 defines criminal breach of trust as under: 405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. The essential ingredients of Section 405 are as under: 1. Entrusting any person with property or with any dominion over property; 2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust of that person entrusted 13. We, in the instant case, find that there is no allegation in the FIR to the effect that either a false document has been prepared by the petitioners in order to commit forgery or any property was entrusted in their favour, thus, offences under Sections 467/468/406 IPC are also not made out. 14. We, in the instant case, find that there is no allegation in the FIR to the effect that either a false document has been prepared by the petitioners in order to commit forgery or any property was entrusted in their favour, thus, offences under Sections 467/468/406 IPC are also not made out. 14. The Apex Court in Amit Kapoor vs. Ramesh Chander, reported in (2012) 9 SCC 460 while reiterating the principles laid down in State of Haryana vs. Bhajan Lal, reported in AIR 1992 SC 604 , culled out categories of cases, wherein at a threshold stage, criminal prosecution could be quashed either in exercise of powers under Article 226 of the Constitution or under Section 482 Cr.P.C, as the case may be, with a view to either prevent abuse the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to compartmentalize each and every such contingencies, but nevertheless following categories were mentioned in Amit Kapoor (supra): 1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 3) Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 4) The High Court should not unduly interfere. 4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 6) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, doe not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offfence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offfence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. 10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 11) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 12) It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 13) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration. 15. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration. 15. We, in view of above discussion, are of the considered view that on the allegations made in the FIR, no offence whatsoever under Section 420/467/468/406 IPC is made out and the case is squarely covered by illustration (2) & (10) of Amit Kapoor (supra). 16. The petition is allowed. The FIR dated 26.6.2020, registered as Case Crime No.369/2020, under Sections 420/406/467/468 IPC, P.S. Partapur, Meerut as well as consequential proceedings sta nd quashed.