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2020 DIGILAW 478 (GAU)

Bagmita Sarma v. State Of Assam

2020-05-12

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - This criminal petition under Section 482, Code of Criminal Procedure, 1973 (''the Code'' and/or ''the CrPC'', for short) has been preferred seeking quashing of the First Information Report (FIR) lodged in connection with Noonmati Police Station Case no. 733/2018 (corresponding G.R. Case no. 17816/2018) and registered for an offence under Section 420, Indian Penal Code. 2. The facts, in brief, are that the respondent no. 2-informant had lodged an First Information Report (FIR) before the Officer In-Charge, Noonmati Police Station on 30.11.2018 against the petitioner as the accused which came to be registered as Noonmati Police Station Case no. 733/2018 (corresponding G.R. Case no. 17816/2018) on 30.11.2018 under Section 420, Indian Penal Code (IPC). After registration, the case had been entrusted to a Sub-Inspector of Police for investigation. The Investigation Officer (I.O.) thereafter, had served a notice dated 21.12.2018 on the petitioner under Section 41A of the Code asking her to appear before him on 23.12.2018. Having come to know that the informant had lodged the FIR, the instant petition has been filed seeking quashing of the said FIR. 3. Heard Mr. A. Tewari, learned counsel for the petitioner; Mr. B.B. Gogoi, learned Additional Public Prosecutor for respondent no. 1, State of Assam and Ms. P. Bora, learned counsel for respondent no. 2. 4. Mr. Tewari, by referring to the contents of the FIR, has submitted that even if all the statements of the FIR are accepted as true, then also it cannot be held that the ingredients of cheating are made out. The petitioner (hereinafter also referred to as ''the accused'', at places, for easy reference) and the respondent no. 2 (hereinafter also referred to as ''the informant'', at places, for easy reference) had executed an unregistered agreement for sale of a plot of land and the informant had paid a sum of Rs. 3,20,000/- to the accused who apart from one of the co-owners of the said plot of land, is the attorney holder for and on behalf of the other co-owners. wxyz 4.1. The only allegation in the FIR is to the effect that the accused did not apply in time for permission for sale of the said plot of land to him. wxyz 4.1. The only allegation in the FIR is to the effect that the accused did not apply in time for permission for sale of the said plot of land to him. It is averred on behalf of the accused that the informant approached the accused in the month of May, 2018 for purchase of the plot of land (the subject-land, for short), as described in the FIR. The accused is a co-owner of the subject-land as well as the power of attorney holder for all the other co-owners and family members to deal in respect of the subject-land. After mutual agreement, an unregistered agreement for the sale of the subject-land was executed in the month of May, 2018. In the month of June, 2018, one of the co-owners viz. Makan Devi expired and for the death of Makan Devi, the accused had to apply for mutation of the names of the legal heirs of Makan Devi so as to bring them on record as co-owners of the subject-land as without mutation of the names of the legal heirs of Late Makan Devi, the sale permission could not be applied. In view of the said death, the accused could not apply for the sale permission in time. zyxw wxyz 4.2. It is further averred that the accused met with an accident on 11.10.2018 wherein she sustained head and facial injuries for which she was advised complete bed rest for about 2 (two) months. After recovery, the accused approached the informant to come and sign the application for sale permission but the informant had refused to do so. It was found that the informant had instituted the FIR in the meantime. zyxw wxyz 4.3. It is further submitted on behalf of the petitioner that the accused as the plaintiff has instituted a civil suit being Title Suit No. 96/2018, in the Court of Civil Judge, Kamrup (R), Amingaon on 17.12.2018 for specific performance of the unregistered agreement for sale of the subject-land executed between the accused and the informant, which is also the subjectmatter of the FIR in question. zyxw 5. Mr. Bora has submitted that from the FIR, it is evident that there was an agreement for sale of land between the informant and the accused and the informant had paid an amount as part-payment towards that agreement for purchase of the subject-land. zyxw 5. Mr. Bora has submitted that from the FIR, it is evident that there was an agreement for sale of land between the informant and the accused and the informant had paid an amount as part-payment towards that agreement for purchase of the subject-land. As the accused was found to have not applied for sale permission, the informant had lodged the FIR. Mr. Gogoi has endorsed the submission of the learned counsel for the informant. 6. I have duly considered the submissions of the learned counsel for the parties and also perused the materials on record. 7. The inherent jurisdiction under Section 482, CrPC can be exercised (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. The inherent powers though very wide, have to be exercised only in appropriate cases for the purpose of doing real and substantial justice and the powers must be exercised with caution. The wide powers available under Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The Court while exercising powers under Section 482, CrPC does not function as a court of appeal or revision. While exercising jurisdiction under Section 482 of the Code, the Court will not undertake an exercise to find out the correctness of the allegations in an FIR/complaint and it does not embark upon an enquiry as to the reliability, genuineness, etc. or otherwise of the accusations made in the FIR/complaint. It is also true that at that same time, the Court should not hesitate to quash a criminal proceeding in certain situations and a criminal prosecution which would amount to an abuse of the process of the court should be interdicted. The principles to be followed with regard to quashing of a First Information Report or a complaint have been discussed in a catena of decisions of the Supreme Court and of this Court. In State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 , the Supreme Court has identified 7 (seven) categories of cases, by way of illustration, where the inherent powers under Section 482 of the Code can be exercised. In State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 , the Supreme Court has identified 7 (seven) categories of cases, by way of illustration, where the inherent powers under Section 482 of the Code can be exercised. It is settled that inherent jurisdiction can be exercised to quash criminal proceedings and/or an First Information Report/complaint where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. 8. Reverting back to the FIR lodged in the case in hand, it is found that in the FIR, the informant has stated to the effect that he intended to purchase a plot of land measuring 1 Katha and 5 Lecha, covered by Dag no. 516 and K.P. Patta no. 49, located in Village - Abhoypur, Mouza Silasindurighopa, District - Kamrup, Assam (''the subject-plot'', for short) from the accused who is the attorney holder. Accordingly, he paid a sum of Rs. 3,00,000/- by way of both cash and cheque on 14.05.2018 and another sum of Rs. 20,000/- on 24.08.2018. Later on, he came to know that the accused had not even applied for the permission for sale of the subject-plot to him. The informant has further alleged that the brother of the accused who was in touch with him earlier, had not been receiving phone calls from his end since more than a month. 9. The FIR is said to be registered for an offence under Section 420, IPC. While Section 415, IPC is an offence of cheating, Section 420, IPC is cheating and dishonestly inducing delivery of property. Section 415, IPC and Section 420, IPC read as under : - wxyz "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". Explanation. Explanation. A dishonest concealment of facts is a deception within the meaning of this section." zyxw wxyz "420. 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." zyxw 10. The ingredients to constitute the offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property [ S.W. Palanitkar and others vs. State of Bihar and another, (2002) 1 SCC 241 ] . There is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement which can sometimes be judged by his subsequent conduct though the subsequent conduct is not the sole test. 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 be committed. Thus, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. 11. In the light of the principles discussed and made above vis- -vis the facts of the case in hand, it is evident that it is not the case of the informant that the accused is not the power of attorney holder or a co-owner of the plot of land in question. The unregistered agreement entered into between the informant and the accused appears to be a valid one. Thus, in so far as the authority of the accused with regard to the execution of the unregistered document is concerned, the informant has not disputed the same. It is only the default on the part of the accused to apply for sale permission before the concerned authority for the said plot of land which had aggrieved the informant. The subsequent institution of the title suit, Title Suit no. 96/20185 makes it evident that the accused had no dishonest or fraudulent intention at the subsequent point of time also. It is not the case of the informant that he was ready and willing to execute his part of the agreement and the accused had intentionally avoided him. Had it been a case, the informant had a civil remedy for specific performance of the agreement in question but the same was not done till the institution of the FIR on 01.12.2018. 12. In Murari Lal Gupta vs. Gopi Singh, (2005) 13 SCC 699 , the facts involved, in a nutshell, were to the effect that the petitioner therein had a property in Delhi in respect of which he entered into an agreement to sell in favour of the respondent for a consideration of Rs 4.50 lakhs. An amount of Rs 3.50 lakhs was paid. The balance of Rs 1 lakh was to be paid at the time of registration of sale deed and delivery of possession. An amount of Rs 3.50 lakhs was paid. The balance of Rs 1 lakh was to be paid at the time of registration of sale deed and delivery of possession. Thereafter, the petitioner did not honour the agreement in spite of three legal notices having been given. According to the respondent, the petitioner had thus cheated him. Alleging as such, the respondent filed a criminal complaint against the petitioner therein complaining of an offence under Section 406, IPC and Section 420, IPC. It was held that merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it could not be said that the petitioner had cheated the respondent. While allowing the petition, it was observed as under :- wxyz "6. . The complaint is an abuse of the process of the court and the proceeding are therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 Indian Penal Code is made out even prima facie. ." zyxw 13. In the decision of State of West Bengal vs. Swapan Kumar Guha and others, (1982) 1 SCC 561 , it is observed that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. In the decision of State of West Bengal vs. Swapan Kumar Guha and others, (1982) 1 SCC 561 , it is observed that the First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. It is further held that there is nothing in the province of the police to investigate a First Information Report which does not disclose the commission of a cognizable offence and an investigation can be quashed if no cognizable offence is disclosed by the contents of the FIR. 14. Reading the FIR in its entirety and accepting the accusations to be true, the ingredients of dishonest or fraudulent inducement for deception on the part of the accused right at the beginning of the negotiation of transaction has neither been expressly stated nor indirectly suggested. Similarly, there is nothing wherefrom it can be inferred about any intentional inducement. Thus, no intention in order to deceive the informant is not made out even after accepting all the averments in the FIR on their face value. Having considered the principles of enunciated by the Supreme Court in the catena of decisions referred above and applying the same to the fact situation of the present case, this Court is of the considered view that the ingredients of cheating are found lacking in the FIR lodged in connection with Noonmati Police Station Case No. 733/2018 (G.R. case no. 17816/2018). The dispute between the parties being a civil dispute no case is made out for proceeding with the criminal case. 15. In such fact situation obtaining in the present case, continuance of the criminal proceeding against the petitioner in connection with Noonmati Police Station Case No. 733/2018 (G.R. case no. 17816/2018) would, in my considered view, amount to abuse of the process of the court. It will, thus, be in the interests of justice to quash the First Information Report lodged in connection with Noonmati Police Station Case No. 733/2018 (G.R. case no. 17816/2018). Accordingly, the First Information Report lodged in connection with Noonmati Police Station Case No. 733/2018 and the criminal proceeding G.R. case no. 17816/2018, arising out of Noonmati Police Station Case No. 733/2018, are quashed. Resultantly, this criminal petition is allowed. No cost.