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2021 DIGILAW 403 (JK)

Barkat Ram v. Rohit Sharma

2021-08-06

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present petition has been filed under section 561-A CrPC (now 482) by the petitioners for quashing of the complaint, Rohit Sharma vs. Barkat Ram and others under sections 420 and 120-B RPC and the order dated 22.05.2017 passed by the 1st Additional Munsiff (Forest Magistrate), Jammu (hereinafter to be referred as the trial court) by virtue of which cognizance has been taken and process has been issued against the petitioners, primarily on the grounds that a civil dispute has given a criminal colour just to harass the petitioners. 2. The facts which are necessary for the disposal of the present petition are that a complaint has been filed by the respondent against the petitioners under sections 420 and 120-B RPC. It was stated in the complaint that the petitioner No. 2 had pretended to the respondent that the land measuring 04 kanals and 01 marla comprising under khasra No. 1446 situated at village, Raipur Domana, Jammu belonged to petitioner Nos. 1 and 3 who were the real brother of petitioner No. 2 and further that the petitioner Nos. 1 and 3 are the owners in possession of the above said land. The respondent along with Surinder Kumar met the petitioner Nos. 1 and 3 along with petitioner No. 2 at their residence and a deal was struck between the complainant/respondent and the petitioners on 06.04.2017 at the shop of petitioner No. 2 and at that point of time, the petitioners insisted for some advance money from the respondent/complainant. The respondent asked his cousin, Surinder Kumar to give the advance money in the shape of three cheques and one cheque amounting to Rs. 1.00 lac dated 06.04.2017 was given to petitioner No. 1, another cheque of the same amount to the petitioner No. 3 and the cheque amounting to Rs.50,000/- was given to petitioner No. 2 on the same date. Thereafter the respondent's friend, Nasib Ali also wanted to invest some money in the property business and as such, the respondent who was short of financial resources agreed for the same, as almost Rs. 80 lacs was the consideration amount for the above said land that was to be paid to petitioner Nos. 1 and 3 after development and sale of the plots on spot. 3. On 08.04.2017, on the insistence of the respondent, the petitioner Nos. 80 lacs was the consideration amount for the above said land that was to be paid to petitioner Nos. 1 and 3 after development and sale of the plots on spot. 3. On 08.04.2017, on the insistence of the respondent, the petitioner Nos. 1 and 3 came to the court premises at Janipur where an agreement to sell dated 08.04.2017 was executed and registered between the respondent, his friend, Nasib Ali and the petitioner Nos. 1 and 3. 4. In the said agreement to sell, it was mentioned that the petitioner Nos. 1 and 3 are the owners in possession of land measuring 4 kanals and 1 marlas falling under khasra No. 1446 situated at village, Raipur Domana and the above said land was free from all encumbrances, charges/lien etc. and it is was also mentioned in the agreement to sell that the petitioner Nos. 1 and 3 had received Rs. 2.00 lacs as advance amount. 5. It is further stated in the complaint, that the above said land was totally vacant and possession was also delivered to the respondent along with his friend, Nasib Ali and it was agreed in the above said agreement that the complainant and the said Nasib Ali can develop the above said land into plots so as to sell the said plots to prospective buyers and it was stipulated in the said agreement that the sale deeds of the above said land shall be executed by the petitioner No. 1 and petitioner No. 3 in favour of the respondent and Nasib Ali within one year and the balance payment shall be paid at the point of time when the sale deeds are executed/registered. 6. It is further stated in the complaint that on 14.04.2017, the respondent wanted to start construction work at site and as soon as the respondent brought labourers on the spot, two-three persons came on spot and told the respondent that this land belonged to them and the petitioner Nos. 1 and 3 have no right over the above said land. The respondent was stunned and as such, approached the petitioners about the status of the above said land but they told the respondent that there is some confusion and sooner the same would be sorted out. 1 and 3 have no right over the above said land. The respondent was stunned and as such, approached the petitioners about the status of the above said land but they told the respondent that there is some confusion and sooner the same would be sorted out. Thereafter, the respondent enquired from the local people around the above said land and came to know that there is a civil dispute going on with respect to the above said land and even there is a status quo order operating upon the above said land that has been obtained by none other but petitioner-Madan Lal along with his real brothers. The respondent was astonished to know about the above said facts and thereafter, approached court of learned Forest Magistrate and got the copy of the suit as well as interim order dated 04.06.2016 passed with respect to the above said land. It is further pleaded in the complaint that the petitioners have played fraud with him and have cheated him and thereafter, the respondent approached the Bank authorities to ascertain as to whether that the petitioners have en-cashed the said cheques or not. It was found that the said cheques were encashed by them. It was pleaded that the respondent along with Surinder Kumar went to the petitioners but they are delaying the matter on one pretext or the other and even were not giving the advance money back to the respondent as per the stipulations contained in the agreement to sell. 7. The complaint was filed by the respondent on 22.05.2017 and thereafter, the learned trial court vide order dated 22.05.2017 took the cognizance and issued the process against the petitioners for commission of offence under sections 420 and 120-B RPC. It is pleaded by the petitioners that after the filing of the complaint, the respondent black mailed the petitioners and made petitioner No. 1 to execute another agreement in his favour. 8. Mr. R.S. Jamwal, learned counsel for the petitioners has vehemently submitted that a civil dispute has given a criminal colour otherwise there is no criminality involved in the transaction. 9. Per contra, Mr. Amit Bhardwaj, learned counsel appearing for the respondent has vehemently argued that the petitioners have cheated the respondent after hatching a conspiracy and as such, the petitioners have committed an offence within the meaning of sections 420 and 120-B RPC. 10. 9. Per contra, Mr. Amit Bhardwaj, learned counsel appearing for the respondent has vehemently argued that the petitioners have cheated the respondent after hatching a conspiracy and as such, the petitioners have committed an offence within the meaning of sections 420 and 120-B RPC. 10. Heard and perused the record. 11. From the record, it is evident that whole claim of the respondent was based upon the agreement to sell dated 08.04.2017 by virtue of which the petitioners Nos. 1 and 3 had agreed to sell the land referred hereinabove to the respondent for a sale consideration of Rs. 80.00 lacs and further that a sum of Rs. 2 lacs was received by them as an advance money. It was further stipulated in the agreement that the balance payment will be made by the 2nd party to the 1st party preferably within one year i.e. at the time of execution/registration of the sale deed(s) and in case 2nd party fails to pay balance payment at that point of time when the sale deeds are executed, then advance paid by the 2nd party shall stand forfeited. It would be profitable to reproduce para 4 of the agreement : “4. That in case party of the 1st part fails to execute the sale deed or other relevant documents in favour of the party of the 2nd part with in prescribed period, in that case the party of the 1st part will be liable to pay five times of the amount of advance payment made by the party of the 2nd part to the party of the 1st part and in case, any dispute or problem arises with respect to the abovesaid land, in that scenario, the party of the 1st part shall give another piece of land measuring 4 kanals 01 marlas to the party of the 2nd part in lieu of the land subject matter of this agreement or otherwise will compensate the party of the 2nd part by giving ten times the amount received by the party of the 1st part at that relevant point of time.” 12. From para 4 of the agreement, it is evident that there is a stipulation that in case of any dispute or problem with regard to the above said land, the party of the 1st part i.e. the petitioners Nos. From para 4 of the agreement, it is evident that there is a stipulation that in case of any dispute or problem with regard to the above said land, the party of the 1st part i.e. the petitioners Nos. 1 and 3 shall give another piece of land measuring 4 kanals and 1 marlas to the party of the 2nd part i.e. respondent in lieu of the land i.e. subject matter of the above said land or otherwise will compensate the respondent by giving ten times the amount received by them. 13. In R.K. Vijayasarathy v. Sudha Seetharam, reported in (2019) 16 SCC 739 , the Apex Court has observed : “15. Section 415 of the Penal Code reads thus: “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”.” 16. The ingredients to constitute an offence of cheating are as follows: 16.1. There should be fraudulent or dishonest inducement of a person by deceiving him: 16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 18. Section 420 of the Penal Code reads thus: “420. 17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 18. Section 420 of the Penal Code reads thus: “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.” 20. Cheating is an essential ingredient for an act to constitute an offence under Section 420. 19.2. The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. 23. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17-2-2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out.” 14. The perusal of complaint reveals that there is no whisper in the complaint that the petitioners dishonestly induced the respondent to part away with the money. Rather the stipulation with regard to the return of ten times the amount or providing alternative land in the event of any problem, reflected the bona fide of the petitioners 1 and 3. The perusal of complaint reveals that there is no whisper in the complaint that the petitioners dishonestly induced the respondent to part away with the money. Rather the stipulation with regard to the return of ten times the amount or providing alternative land in the event of any problem, reflected the bona fide of the petitioners 1 and 3. So ingredients of cheating are lacking in the complaint. Had there been any intention on the part of the petitioners to cheat the respondent, such type of stipulation would have never been kept in the agreement. 15. More so, the respondent had a remedy of seeking specific performance of the said agreement to which the respondent has not taken recourse to and rather in order to seek redressal of his grievance, he has resorted to criminal proceedings. 16. In Oil Corpn. v. NEPC India Ltd., reported in (2006) 6 SCC 736 , the Apex Court has held as under : “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [ (1988) 1 SCC 692 : 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [ (1995) 6 SCC 194 : 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [ (1996) 5 SCC 591 : 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [ (1996) 8 SCC 164 : 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [ (1999) 3 SCC 259 : 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [ (2000) 3 SCC 269 : 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [ (2000) 4 SCC 168 : 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [ (2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283]. Sharaful Haque [ (2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our purpose are : (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 13. The test is whether the allegations in the complaint disclose a criminal offence or not. 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [ (2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. 17. Further Apex Court in Anand Kumar Mohatta v. State (NCT of Delhi), (2019) 11 SCC 706 has observed: 24. 17. Further Apex Court in Anand Kumar Mohatta v. State (NCT of Delhi), (2019) 11 SCC 706 has observed: 24. We do not see how it can be contended by any stretch of imagination that the appellants have misappropriated the amount or dishonestly used the amount contrary to any law or contract. In any case, we find that the dispute has the contours of a dispute of civil nature and does not constitute a criminal offence. 27. We find it strange that the complainant has not made any attempt for the recovery of the money of rupees one crore except by filing this criminal complaint. This action appears to be mala fide and unsustainable.” 17. Thus, this Court is of the considered opinion that there is no criminality involved in the transaction between the parties. This is purely a civil dispute and the respondent has given a criminal colour to the same just to cut short the process of redressal of his grievance. 18. For all what has been discussed above, I am of the considered opinion that the continuance of the criminal proceedings in the impugned complaint shall be nothing but an abuse of process of law, as such, this petition is allowed. Complaint titled, Rohit Sharma vs. Barkat Ram and others pending in the court of 1st Additional Munsiff (Forest Magistrate), Jammu as also order dated 22.05.2017 are quashed.