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Madhya Pradesh High Court · body

2020 DIGILAW 602 (MP)

Mukesh Rochlani v. State Of M. P. And Another

2020-05-20

RAJENDRA KUMAR SRIVASTAVA

body2020
JUDGMENT 1. This petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 02.05.2019 in Cr.R No. 40/2018 passed by Second Upper Sessions Judge, Harda, affirming the order dated 17.09.2018 in Criminal Case No. 1840/2015 passed by JMFC Harda, whereby the learned JMFC has framed the charge of offence under Section 420 IPC against the petitioner and another accused person. 2. According to the case, on the basis of a complaint made by complainant/respondent No. 2, the police has registered a case for the aforesaid offence against the petitioner and his father namely Bhagchand. It is mentioned in the FIR that both the accused persons have entered into an agreement with the complainant in respect of transaction of a house for a sale consideration of amount of rupees 13,00,000/-. In this context, allegedly the petitioner and his father got rupees 8,50,000/- as an advance through cash and cheque mode. The parties have decided to execute a registered sale deed on or before 01.12.2013. It is further alleged by the complainant that while executing the said agreement, the accused persons told him that the property is free from all encumbrances and same fact is also written into the agreement. After passing the stipulated period, when the complainant contacted the accused persons, they started avoiding him. Thereafter, the complainant came to know that the property in question was already mortgaged to State Co-operative Society, Bhopal, against a loan of Rs. 60,000/- which, after defalcation by the accused persons, has been increased upto rupees 10,98,186/-. The complainant alleged that the petitioner and his father committed cheating with him and grabbed rupees 8,50,000/- from him and they refused either to return the money or execute the sale deed. 3. The police has registered a case against the petitioner and his father under Sections 420, 406, 506/34 IPC and submitted a charge sheet before the Court of JMFC, Harda. Vide order dated 17.09.2018, the learned JMFC has framed the charge of Section 420 IPC against both the accused persons and discharged them in other offences. Being aggrieved by the order of framing of charge under Section 420 IPC, the petitioner directly approached to this High Court by filing a petition under Section 482 Cr.P.C bearing M.Cr.C No. 41439/2018, subsequently the same was withdrawn by the petitioner with a liberty to approach before the Sessions Court under revisional jurisdiction. Being aggrieved by the order of framing of charge under Section 420 IPC, the petitioner directly approached to this High Court by filing a petition under Section 482 Cr.P.C bearing M.Cr.C No. 41439/2018, subsequently the same was withdrawn by the petitioner with a liberty to approach before the Sessions Court under revisional jurisdiction. 4. Learned counsel for the petitioner submits that the petitioner is an innocent person and has been falsely implicated in the case. He submits that learned Courts below erred in framing the charge of Section 420 IPC whereas no material is available in the case for framing the same. He further submits that neither the petitioner is a party in the agreement in question nor he is a witness of said agreement, hence, he cannot be held liable for any offence. Moreover, the entire allegations are based on the execution of the agreement and violation of the terms and conditions thereof, hence, the dispute is of civil nature and for which a criminal prosecution cannot be launched against the petitioner. In support of his contentions, he relied on the judgement of the Hon'ble Apex Court in the case of Devendra & others Vs. State of UP & another reported in (2009) 7 SCC 495 . 5. On the other hand, learned panel lawyer for respondent No. 1/State as well and counsel for respondent No. 2 oppose the petition submitting that there is sufficient material available in the case for framing the charge of Section 420 IPC against the petitioner. The complainant has specifically alleged against the petitioner for the aforesaid offence, hence, charge framed may not be quashed at this stage. The learned Courts below rightly passed the order. Learned counsel for respondent No. 2 further submits that the offence is related to cheating in respect of property dispute and there is no bar to avail both the remedies i.e. Civil and Criminal for the same subject matter. He submits that at this initial stage of trial, the Court may not go into the question of truthfulness or veracity of complaint made by respondent No. 2, it is for the trial Court to decide the same in trial. On perusal of FIR, there is sufficient prima facie material to frame the charge and prosecute further, hence, this petition deserves to be dismissed. On perusal of FIR, there is sufficient prima facie material to frame the charge and prosecute further, hence, this petition deserves to be dismissed. In support of his contentions, he relied on various pronouncements of the Hon'ble Apex Court, same are reproduced herein under:-- (I) Arun Bhandari Vs. State of UP & Other reported in (2013) 2 SCC 801 . (II) Nagpur Steel & Alloys PVT. LTD. Vs. P. Radhakrishna @ Rajan and Others reported in 1997 SCC (Cri) 1073. (III) M/s. Medchl Chemicals & Pharma Pvt. Ltd. reported in 2000 (2) Crimes 11 (SC) 6. Heard and perused the case diary. 7. In the first information report, the allegation of cheating in respect of executing the sale deed was made against both the accused persons, though the agreement in question was executed only by the father of petitioner namely Bhagchand. There is also an allegation that the petitioner fraudulently or dishonestly induced the complainant to enter into transaction of property knowing well the fact that the property was under mortgage to the State Co-operative Society, Bhopal. The learned counsel for the petitioner mainly argued on two points before this Court as well as revisional Court, first, that the petitioner is not a party in agreement on which the dispute is arisen and second, that the dispute is of civil nature. 8 . On perusal of case diary, it is found that the police has collected the said agreement as an evidence and recorded the statement of Sanjay Rochlani and Manish Kushwah, who were the witnesses of said agreement. On perusal of their statement, it appears that at the time of deal in question, the petitioner was also involved with his father, even the petitioner got the amount of sale consideration decided between the parties to be paid at the time of agreement. The witnesses specifically stated that the deal was finalized with the consent of the petitioner. Hence, prima facie his involvement in alleged transaction cannot be discarded. 9 . Now the question arises whether the dispute is civil in nature for which the petitioner cannot be prosecuted under criminal trial. It is well-settled position of law that for the same matter, civil and criminal proceedings can be proceeded simultaneously. Hence, prima facie his involvement in alleged transaction cannot be discarded. 9 . Now the question arises whether the dispute is civil in nature for which the petitioner cannot be prosecuted under criminal trial. It is well-settled position of law that for the same matter, civil and criminal proceedings can be proceeded simultaneously. I find that the learned Revisional Court has elaborately discussed the same issue towards para 8 by relying on the legal verdict passed by the Hon'ble Apex Court in the case of Arun Bhandari (supra) . Hence, I persuaded with the findings of the learned revisional Court that for the same matter, civil and criminal proceedings can be proceeded simultaneously if the ingredients to constitute the criminal liability, are fulfilled. Hence, there is no bar to prosecute the petitioner in criminal case even though the civil remedy is available for the present subject matter. 10 . Now, the only question which remains to be adjudicated is, whether any prima facie case under Section 420 IPC is made out against the petitioner or not ? Before I proceed further to examine the contentions of the learned counsel for the parties, it is necessary to consider legal aspect in respect of establishing a charge under Section 420 IPC. Section 415 IPC defines 'cheating' which is mentioned 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." 11. On careful reading of Section 415 I.P.C, it is found that the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement. In this regard in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , after noticing the provisions of Sections 415 and 420 IPC, the Hon'ble Apex Court stated the following in paras 14 and 15: '14. In this regard in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 , after noticing the provisions of Sections 415 and 420 IPC, the Hon'ble Apex Court stated the following in paras 14 and 15: '14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this 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 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 that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 12. On careful reading of the aforesaid principle and other legal verdict made by Court of Law, the ingredients of Section 420 of the Penal Code are: ( i ) Deception of any persons; ( ii ) Fraudulently or dishonestly inducing any person to deliver any property; or ( iii ) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. 13. Now in view of the aforesaid legal position, I would prefer to examine the merits of the case, In the case of S.W. Palanitkar v. State of Bihar reported in (2002) 1 SCC 241 it has been laid down that:-- 21. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. 14. An another case State of Kerala Vs. A. Pareed Pillai reported in (1972) 3 SCC 661 the Hon'ble Supreme Court held as under: 16 . To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfill the promise. 15. Further, in the case of G.V. Rao Vs.. L.H.V. Prasad reported in (2000) 3 SCC 693 , the Hon'ble Supreme Court has held thus: 7. As mentioned above, Section 415 has two parts. While in the first part, the person must 'dishonestly' or 'fraudulently' induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay , AIR 1956 SC 575 , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, 'mens rea' on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. (Emphasis supplied) 16. On the case in hand, undisputedly the agreement was executed between the accused Bhagchand and complainant. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. (Emphasis supplied) 16. On the case in hand, undisputedly the agreement was executed between the accused Bhagchand and complainant. The present petitioner is son of accused Bhagchand. As per the agreement, the total sale consideration amount was rupees 13,00,000/- and at the time of agreement, the complainant had given rupees 8,50,000/- to accused Bhagchand, but according to the witnesses of said agreement, the petitioner was fully involved in the execution of said agreement, even he is the person who got money from the complainant. Statements of witnesses Sanjay Rochlani, Manish Kushwah, Sandeep Gaur and B.K. Sharma, prima facie indicated that the petitioner was involved in said transaction. Further, it is contented in the agreement that the registry of said property will be executed by the complainant on or before 01.12.2013 and after that, if the seller/accused person make any procrastination, the complainant will be free to execute one sided sale deed. It is also mentioned that the property is free from all encumbrances. According to prosecution, in inquiry, it is found that the disputed property was mortgaged by Bhagchand to the State Housing Co-operative Society, Bhopal, against a loan of rupees 60,000/- and at present, the due amount is rupees 10,98,186/-. As per witness B.K. Sharma, officer in the State Co-operative Society, Bhopal, the petitioner was well aware of the fact of said mortgage of the property. Hence, prima facie there is sufficient material to say that the petitioner was fully aware to the fact that the property was under encumbrance of Housing Cooperative Society, Bhopal, even then, with a fraudulent or dishonest intention, he had actively participated with his father in the execution of an agreement and making the promise to execute a sale deed in favour of the complainant. 17. Apart from the above, at this stage, the Court, in its jurisdiction under Section 482 Cr.P.C., is not called upon to embark upon to enquire whether the allegations in the FIR and the chargesheet are reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. 17. Apart from the above, at this stage, the Court, in its jurisdiction under Section 482 Cr.P.C., is not called upon to embark upon to enquire whether the allegations in the FIR and the chargesheet are reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are the matters which can be examined only by the concerned court after the entire material is produced before it through investigation and when evidence is led. It is well-settled principle of law that the High Court should critically examine whether the allegations made in the First Information Report and the charge-sheet, if taken on their face value and accepted in their entirety, would prima facie constitute an offence for making out a case against the accused. In a proceeding under Section 482 Cr.P.C., this Court should not enter into any finding of facts, particularly, when the matter has been concluded by concurrent finding of facts of two courts below. Inherent powers under Section 482 Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Court subordinate to it and are of wide magnitude and ramification, such powers can be exercised to secure the ends of justice, prevent abuse of the process of any Court, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly, carefully and with caution. 18. Therefore, in view of the foregoing discussion, I find that there is sufficient material available in the case for framing the charge of Section 420 IPC. I do not find any reason to exercise the inherent jurisdiction of Section 482 Cr.P.C. The pronouncements relied upon by the petitioner's counsel are having different set of facts and are not applicable in the present case. The learned Revisional Court has minutely appreciated each and every facts of the case in proper prospect, hence, the impugned order is well merited and does not call for any interference by this Court. Hence, this petition is hereby dismissed , however, the petitioner is free to raise all the grounds before the trial Court at appropriate stage of trial. Needless to say, the learned trial court shall proceed with trial without being influenced by any findings of this order.