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2020 DIGILAW 440 (ALL)

Kamal Singh v. State of U. P.

2020-02-10

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. Heard Sri Nirvikar Gupta, learned counsel for the applicants, Sri Brijesh Sahai, learned Senior Advocate, assisted by Sri Bhavya Sahai, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records. 2. This application under Section 482 Cr.P.C. has been filed by applicants Kamal Singh and Ramesh Chandra against State of U.P. and Brahm Kumar Agarwal with prayer to quash entire proceedings of Complaint Case No. 1339 of 2019, Brahm Kumar Vs. Kamal Singh and another, arising out of Case Crime No. 10 of 2015, under Sections 420, 467, 468, 471, 120B I.P.C., P.S. Vrindavan, district Mathura, pending in court of A.C.J.M., Court No. 5, Mathura, including order dated 30.7.2018 passed by the A.C.J.M., Mathura, whereby protest petition has been treated as a complaint case and summoning order dated 26.4.2019 passed in above mentioned Complaint Case. 3. Learned counsel for the applicants argued that applicant no. 1 was recorded tenure holder of Chak No. 115 Gata No. 477 area 0.893 hectare situate at village Jait, P.S. Vrindavan, District Mathura. He entered into an agreement with O.P. No. 2 for sale of his plot in dispute for a total sale consideration of Rs. 1,32,29,630/-. But complainant requested for mentioning of lower amount of sum because if entire sale consideration is mentioned in the agreement to sell, the same would entail a heavy stamp duty. In such circumstances and notwithstanding with the fact that the earnest money of Rs. 33,07,407/-was received by applicant no. 1, agreement to sell was executed mentioning earnest money to be Rs. 20 lacs and total sale consideration to be Rs. 50 lacs despite the fact that the complainant was required to pay balance sale consideration as against Rs. 1,32,29,630/-. But after payment of Rs. 20 lacs the informant-complainant failed to pay above balance consideration resulting lapse of sum in term of agreement entered in between in form of forfeiture clause. The earnest money paid by first informant stood forfeited. A supplementary agreement was also executed in between parties on 29.5.2013 and the time for execution of sale deed was extended. Even then on account of failure on the part of first informant of being able to pay balance sale consideration and being ready and willing to have the sale deed executed, the applicant no. 1 was not bound by above agreement to sell dated 29.6.2012. Applicant no. Even then on account of failure on the part of first informant of being able to pay balance sale consideration and being ready and willing to have the sale deed executed, the applicant no. 1 was not bound by above agreement to sell dated 29.6.2012. Applicant no. 1 executed a sale deed for the same land in favour of applicant no. 2, Ramesh Chandra, on 1.9.2014 for a total sale consideration of Rs. 1,15,00,000/-, which was a valid transaction entered in between. The first informant instituted O.S. No. 913 of 2014 for a decree of relief of specific performance of contract/ agreement to sell dated 29.6.2012 with a contention that the applicant no. 1, being bhumidhar of plot in dispute, had entered into a registered agreement to sell with plaintiff/ first informant for a total sale consideration of Rs. 50 lacs for which Rs. 20 lacs was paid by way of earnest money and deed of agreement to sell was executed on 29.6.2012 with a condition of limitation of one year for execution of sale deed for it. Time and again payment was being made to applicant no. 1, but he did not show his willingness to have sale deed executed. Hence a supplementary agreement was also executed in between parties on 29.5.2013. But it revealed to the plaintiff-first informant that applicant no. 1 had fraudulently executed sale deed of land in question in favour of applicant no. 2, hence, cause of action had arisen for this civil suit and it was filed for above relief. An application under Order 39 Rule 1 C.P.C. for ad-interim injunction was filed with above contention of plaint. Written statement and objection over above application were also filed by present applicants and after hearing on merit the ad-interim injunction application was rejected by court of Civil Judge (Senior Division), Mathura, vide order dated 21.7.2016. Against this order a First Appeal From Order No. 2685 of 2016 was filed before this court and it was dismissed vide order dated 24.10.2016. Against this order a Special Leave Petition No. 3110 of 2017 was filed before Apex Court, but the same was rejected vide order dated 6.3.2017. In between a first information report with same contention, as of plaint, was filed at P.S. Vrindavan, District Mathura, on 19.12.2014 vide Case Crime No. NIL of 2014, which was renumbered as Case Crime No. 10 of 2015 against applicants. In between a first information report with same contention, as of plaint, was filed at P.S. Vrindavan, District Mathura, on 19.12.2014 vide Case Crime No. NIL of 2014, which was renumbered as Case Crime No. 10 of 2015 against applicants. This was with false contention of fact having no merit and was with ulterior motive of blackmailing and harassing the applicants, who are poor illiterate farmers. Investigation resulted in submission of final report on 14.3.2015. Protest petition was filed, which was treated as a complaint case vide order dated 28.5.2015. This order was challenged before this court in Criminal Misc. Application u/s 482 Cr.P.C. No. 20145 of 2015, Brahm Kumar Agarwal Vs. State of U.P. and others, challenging the order of the Magistrate for treating the protest petition as a complaint case. This order of Magistrate dated 21.7.2015 was set aside by this court vide order dated 21.7.2015. Matter was remanded back and it was further investigated. But as there was no substance in the assertion, second round of investigation also resulted in submission of final report on 8.4.2016. Investigating officer concluded that the dispute between the parties was of civil nature, regarding which civil suit is pending for disposal. Again protest petition was filed and vide order dated 9.11.2017 again a direction for further investigation was made. In the third round of investigation again final report dated 30.3.2018 was filed. Hence despite final report being submitted thrice in the matter, the contesting respondent again filed a protest petition, which was treated to be a complaint case, wherein statement of complainant was recorded u/s 200 Cr.P.C. and of his witnesses Vivek Agarwal and Bharat Pal were recorded u/s 202 Cr.P.C. On the basis of recording of statements, learned A.C.J.M., Court No. 5, Mathura, passed summoning order dated 26.4.2019 whereby applicants have been summoned to face trial for the offences punishable under Sections 420, 467, 468, 471, 120B I.P.C. Whereas from the bare perusal of the impugned order of summoning as well as order dated 30.7.2018 treating the protest petition as a complaint case, it is apparent that the same suffer from manifest error apparent on the face of record. Sale deed was rightly executed by applicant no. 1 in favour of applicant no. 2. It was executed after lapse of agreement for sale entered in between applicant no. 1 and informant. Sale deed was rightly executed by applicant no. 1 in favour of applicant no. 2. It was executed after lapse of agreement for sale entered in between applicant no. 1 and informant. The informant-O.P. No. 2 was not ready and willing to perform his part of contract and to have sale deed executed for a residual consideration. Entire fact in dispute on the basis of which this F.I.R. was lodged or protest petition was taken cognizance of by Magistrate were subjudice before Civil Court in above previously instituted O.S. No. 913 of 2014. Initially prima-facie case was held to be missing in dispute while deciding ad-interim injunction application by learned Civil Court and this order was confirmed till Apex Court. Civil suit is still pending. Unless those facts are being decided by civil court, it can never be held that there was any fraud or fabrication on the part of applicant no. 1. Learned Magistrate, in impugned order, has observed that there is in fact a dispute between parties and as such summoning of applicants was made. It was in utter disregard of the laws propounded by this court as well as Apex Court that purely a civil nature dispute for which Original Suit No. 913 of 2014 pending in between was there and for the facts mentioned therein disputed by written statement, pending for disposal by civil court in above suit has been taken, as a basis and reason for summoning of accused-applicants for offences, as above. Criminal Court may never adjudicate that informant was ready and willing to get sale deed executed or it was informant, who failed to perform his obligation under above registered agreement to sell. The payment of earnest money being said by informant-plaintiff has been admitted by applicants-defendants. It has been said to have lapsed in view of forfeiture clause written in the admitted agreement. This fact may also be adjudicated only and exclusively by civil court. This too may not be adjudicated by a criminal court. Hence no offence was made out against applicants. Applicant no. 2 is a bonafide purchaser, who has purchased the land in dispute through registered sale deed after making valid and legal consideration for the plot in dispute. He can never be held for any offence of fraud, deceit or fabrication or false and fictitious security, to summon them. Hence this application with above prayer. 4. Applicant no. 2 is a bonafide purchaser, who has purchased the land in dispute through registered sale deed after making valid and legal consideration for the plot in dispute. He can never be held for any offence of fraud, deceit or fabrication or false and fictitious security, to summon them. Hence this application with above prayer. 4. Sri Brijesh Sahai, learned Senior Advocate, assisted by Sri Bhavya Sahai, learned counsel for O.P. No. 2, argued that this court in exercise of inherent jurisdiction u/s 482 Cr.P.C. is not to embark upon factual matrix and the Magistrate, at the stage of passing an order of summoning u/s 204 Cr.P.C., need not to write reasoning in detailed and elaborate order justifying its summoning order. Rather existence of prima-facie case for further proceeding and summoning is to be seen by the Magistrate, as has been held in catena of judgment of Apex Court as well as of this court. In the present case, admittedly, applicant no. 1 entered into an agreement to sell of his bhumidhari land for sale consideration of Rs. 50 lacs, out of which earnest money of Rs. 20 lacs was received. Registered agreement to sell was with limitation of one year for execution of sale deed. There was charge of bank over above land. It was incumbent upon applicant no. 1 to get the land free from above charge and obtain procedure for getting the same alienated, which he could not complete, even after receipt of subsequent part of major consideration in maximum parts elaborated in plaint as well as counter affidavit filed by O.P. No. 2. Owing to failure of applicant no. 1 for getting above formalities completed, subsequent agreement to sell with further limitation was got executed in between. Even after this and receipt of huge amount of sale consideration, the deed was not executed. A notice with false fact was issued by applicant no. 1 to O.P. No. 2 mentioning therein the sale consideration of Rs. 1,32,29,630/-. This was replied by a notice with correct assertion and mentioned for getting dues cleared and formalities fulfilled for getting sale deed executed within the above limitation. Subsequently, a notice was issued and on that date O.P. No. 2 was present at the office of Sub Registrar for getting deed executed, but applicant no. 1 did not turn up. Rather applicant no. Subsequently, a notice was issued and on that date O.P. No. 2 was present at the office of Sub Registrar for getting deed executed, but applicant no. 1 did not turn up. Rather applicant no. 1 executed a sale deed in favour of applicant no. 2, which was a collusive deed, just to defeat the earlier agreement to sell. This was a fraud and deception with O.P. No. 2 for which first information report was got lodged and even after repeated directions for further investigation, final report was submitted under influence of accused-applicants. Ultimately protest petition was filed over final report, which was treated as a complaint case, wherein the Magistrate decided to proceed under Chapter XV of the Code or Criminal Procedure. Statements of complainant and of his two witnesses were recorded by the Magistrate under sections 200 and 202 Cr.P.C. There was sufficient prima-facie evidence for offences punishable under Sections 420, 467, 468, 471, 120B I.P.C. Accordingly, the impugned summoning order was passed against the applicant, against which this proceeding u/s 482 Cr.P.C. has been filed. Whereas applicant no. 1 is in possession of huge amount of money paid by O.P. No. 2 to applicant no. 1 and it has yet not been returned. Thus, execution of agreement to sell was with intention to deceit O.P. No. 2. Hence the same was not complied with. Neither money was paid back nor deed was executed in favour of O.P. No. 2. Rather land in dispute was transferred under a collusive transaction and deed to applicant no. 2, who is enjoying the above land and O.P. No. 2 is running from pillar to post. Civil suit is for decree of specific performance of contract and adjudication of civil right of plaintiff. Whereas this criminal proceeding was for punishment of applicants for forgery and fraud committed by them under a fraudulent intention since the beginning of above transaction and execution of registered agreement to sell and there are catena of judgments of Apex Court as well as of this court that pendency of Civil Suit will not bar criminal proceeding. Hence this application is to be dismissed. 5. Apex Court in Anil Mahajan Vs. Bhor Industries Limited, 2004 Law Suit (SC) 1204, has propounded that in a case of fraud defined under section 415 I.P.C. and punishable u/s 420 I.P.C., offence of cheating requires criminal intention since very inception of contract. Hence this application is to be dismissed. 5. Apex Court in Anil Mahajan Vs. Bhor Industries Limited, 2004 Law Suit (SC) 1204, has propounded that in a case of fraud defined under section 415 I.P.C. and punishable u/s 420 I.P.C., offence of cheating requires criminal intention since very inception of contract. Consideration of substance of complaint should reveal that criminal intention was from very inception of contract. If subsequent disobedience of contract is there, then distinction has to be kept in mind between mere breach of contract and offence of cheating. Subsequent conduct is not sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at beginning or inception of transaction and if it is lacking then substance of complaint will be a simple case of civil dispute in between parties. 6. This has also been laid down by Apex Court in Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, AIR 2000 SC 2341 , that mere breach of contract or agreement to sell cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction. Relevant paragraph no. 16 of judgment reads as under: “Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show mere failure to keep up promise subsequently such a culpable intention right to the beginning that is, when he made the promise cannot be presumed.” 7. In B. Suresh Yadav Vs. Sharifa Bee and another, 2007(4) RCR (Criminal) 870, the Apex Court has held that criminal proceedings are not short cut of other remedies available in law to get the agreement to sell executed. In paragraph no. 13 of the aforesaid judgment the Apex Court has observed as under: “13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.” 8. In paragraph no. 13 of the aforesaid judgment the Apex Court has observed as under: “13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.” 8. Applying above principles of law stated in the ratio and judgments to the facts of the present case, it is not disputed between the parties that applicant no. 1 entered in agreement to sell of his bhumidhari land for a valid consideration through a registered sale deed and took earnest money of Rs. 20 lacs against it. Limitation was of one year. Subsequently supplementary agreement to sell by way of a registered document was executed, wherein this limitation period was extended and part of remaining amount was paid. Meaning thereby till then there was no intention to cheat or cause deceit nor this deed was result of above deception. Another agreement on a Stamp paper was executed in between parties having signature and identification with attestation of witnesses on the same day wherein amount of consideration was written to be Rs.1,32,29,630/-for the same land and this collateral document was written to be executed in between in civil proceeding as well order rejecting ad-interim injunction application by Presiding Judge of Civil Court and it was held that this collateral agreement to sell, though not registered, was actionable between parties as a collateral transaction because of not being opposed by them and this finding was not altered even up to stage of Apex Court. Meaning thereby on the inception of above agreement to sell, admittedly, there was no question of any deception or cheating. Subsequently there arisen a dispute that complainant-informant was not willing and ready to get sale deed executed or present applicant no. 1 failed to execute deed because of his fraudulent intention and failure to get terms and conditions fulfilled regarding clearance of bank dues and demarcation of chak in question. These things are questions of facts to be decided on the basis of evidence in a civil proceeding, which has already been filed by complainant -O.P. No. 2 prior to institution of this criminal proceeding. These facts have been mentioned and denied in pleadings. Hence determination of those things are to be made by civil court in above civil proceeding. Learned Magistrate in its impugned order has written so. These facts have been mentioned and denied in pleadings. Hence determination of those things are to be made by civil court in above civil proceeding. Learned Magistrate in its impugned order has written so. Hence the fact and prima-facie conclusion that since the beginning and initiation of contract for agreement to sell, there was presence of intention to cheat or deception has not been mentioned in impugned order. Whereas Magistrate is not required to pass a reasoned and elaborate order while making a summoning order under section 204 Cr.P.C. But it is mandatory that from the perusal of order of summoning, it must appear that application of judicial mind is there. 9. In the present case summoning is for offences punishable under Section 420 I.P.C. The essential ingredients of offence of fraud enumerated u/s 415 I.P.C. is to be apparent making offence punishable u/s 420 I.P.C. Section 415 of I.P.C. provides: “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”. 10. This cheating is punishable u/s 417 I.P.C. with imprisonment of either description for a term, which may extend to one year, or with fine, or with both. 11. Section 420 I.P.C. provides cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived 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. 12. Apex Court in Mahadeo Prasad Vs. 12. Apex Court in Mahadeo Prasad Vs. State of Bengal, AIR 1954 SC 724 , has propounded that the offence of cheating is established when the accused thereby induced that person to deliver any property or to do or to omit to do something, which he could otherwise not have done or omitted. 13. Apex court in Suresh Vs. Mahadevappa Shivappa Danannava, AIR 2005 (SC) 1047 , quashed the complaint case, wherein, the allegations of cheating was made by the complainant against the petitioner on the ground that the accused had executed an agreement to sell her house but subsequently backed out. The Apex Court held that it is a dispute of civil nature and there was no allegation that the accused had fraudulent or dishonest intention at the time of making the promise. 14. In B. Suresh Yadav Vs. Sharifa Bee and another, 2007(13) SCC 107 , the Apex Court has held that the power of the High Court for quashing of the criminal proceeding can be exercised where a civil suit is also pending between the parties in respect of the same subject matter and the criminal proceedings in such like cases amounting to abuse of process of law. 15. In the present case the summoning includes offences punishable u/s 467, 468, 471 I.P.C. whereas no accusation of forgery provided u/s 463 I.P.C. is there. There is no allegation of making of a false document 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, which is a condition precedent for offence punishable u/s 467 I.P.C., which provides whoever forges a document, which purports to be a valuable security or a will etc. 16. Section 468 I.P.C. provides punishments for offence of forgery for the purpose of cheating. 17. Section 471 I.P.C. provides punishment for use as genuine any document or electronic record, which he knows or has reason to believe to be a forged document or electronic record. 18. 16. Section 468 I.P.C. provides punishments for offence of forgery for the purpose of cheating. 17. Section 471 I.P.C. provides punishment for use as genuine any document or electronic record, which he knows or has reason to believe to be a forged document or electronic record. 18. But no ingredients of for forgery or offences, as above, is there in the statements recorded u/s 200 and 202 Cr.P.C. The mere accusation is that the applicant no. 1 entered into an agreement to sell. He received heavy amount as earnest money. Subsequently he did not execute sale deed. A Civil Suit was filed and in between before filing of civil suit, above property was transferred to applicant no. 2 through a registered sale deed for a valid consideration. This applicant no. 2 has been summoned for above offence. Whereas he is admitting to purchase the land under bonafide belief for a valid consideration through a registered sale deed of a land, which was with no defective title of vendor. Even if civil suit is decreed then either specific performance of above registered agreement to sell may be or return of earnest money with interest may be permitted. But the facts being mentioned were admitted by applicant no. 1 before Civil Court and even in this proceeding. Execution of sale deed in favour of applicant no. 2 was said to be made after expiry of period of limitation mentioned in the registered agreement to sell and retention of earnest money is being claimed under bonafide belief of forfeiture of earnest money agreed in the agreement to sell. Hence, apparently this ought to be considered by the Magistrate, while summoning applicants for offences, as above. What offences were made out prima-facie on the basis of evidence collected in enquiry by Magistrate, what were pending before civil court and were decided up to Apex Court were needed to be there in the order of summoning passed by the Magistrate revealing application of judicial mind for passing summoning order, if any. Whereas impugned order reveals that Magistrate has summoned in one line that both sides are litigating over issue of property and this may be adjudged by evidence laid by parties. Hence, prima-facie there appears ground for summoning, which never reveals application of judicial mind by Magistrate in passing impugned summoning order. Hence, it is apparently an abuse of process of law. Hence, prima-facie there appears ground for summoning, which never reveals application of judicial mind by Magistrate in passing impugned summoning order. Hence, it is apparently an abuse of process of law. Accordingly, this application merits its allowance. 19. Admittedly, this registered deed of agreement to sell was executed on 29.5.2013 wherein sale consideration was shown to be Rs. 50 lacs. At the same time another agreement in between parties, duly attested by witnesses for the same land for sale, was got executed, wherein sale consideration was written to be Rs. 1,32,29,630/-. This subsequent agreement has been in the pleading before Civil Judge in civil suit filed by informant-complainant and it was held to be admissible for collateral purpose in between parties because of being not denied in the order of the Civil Judge (Senior Division) in disposal of interim injunction application, which order has been upheld up to Apex Court. In this proceeding u/s 482 Cr.P.C. learned counsel for applicants has vehemently argued and has written in the application that this agreement to sell, which was not a registered one, was got executed in between. But upon request this sale consideration was shown to be Rs. 50 lacs and this was with a view to have saving from objections from Income Tax Department and other formalities and this agreement was got registered. Meaning thereby knowing this fact that this contention in the agreement to sell was against fact, but it was presented as a factual one and this was got registered with knowledge and belief that it was a sham document. The real consideration to be paid and the real agreement entered in between was an unregistered document. According to which remaining sale consideration was to be given i.e. the registry officials were deceived for getting the deed registered, which was with incorrect mention of consideration and getting the same registered to be believed to be true and correct one. This offence will amount deception apparently fulfilling the ingredients of a cognizable offence punishable u/s 420 I.P.C. It will be against both the would be vendee and the would be vendor i.e. the parties to above agreement including applicant no. 1. This aspect was also required to be inquired under section 202 Cr.P.C. then after summoning order, if any, against accused, against whom offences were made out, was to be passed. 20. Accordingly, application u/s 482 Cr.P.C. is allowed. 1. This aspect was also required to be inquired under section 202 Cr.P.C. then after summoning order, if any, against accused, against whom offences were made out, was to be passed. 20. Accordingly, application u/s 482 Cr.P.C. is allowed. Impugned summoning order is being set aside. The file is remanded back to the Magistrate concerned for making adequate and proper enquiry under sections 200 and 202 Cr.P.C. for hearing complainant and passing order, if any, within the parameter of law and precedents showing prima-facie application of judicial mind.