Chandra Mohan Badaya S/o Shri Kishan Badaya v. State of A. P.
2022-06-24
ROBIN PHUKAN
body2022
DigiLaw.ai
JUDGMENT : ROBIN PHUKAN, J. 1. This petition, under Section 482 of the Cr.P.C. is preferred by three petitioners, namely (i) Shri Chandra Mohan Badaya, (ii) Smti. Shashi Natani and (iii) Shri Rajesh Natani @ Rajesh Kumar Natani, all are from Jaipur, Rajasthan, for quashing the FIR of Pasighat Police Station Case No. 227/2017, under section 420/120B/34 IPC. 2. It is to be mentioned here that - Pasighat Police Station Case No. 227/2017, under section 420/120B/34 IPC has been registered on the basis of one FIR lodged by one Anil Kumar Agarwal, on 15th November, 2017 for committing the offence of fraud, cheating and other criminal activities, against the three petitioners and also against three others, namely Shri Kishan Badaya, Smti. Teena Badaya and Smti. Sushila Devi Badaya. 3. The factual background, leading to filing of the present petition is adumbrated herein below: “On 02.03.2016, one Rajesh Natani and Shri Chandra Mohon Badaya has contracted the family of the complainant-Shri Anil Kumar Agarwal, seeking a sum of Rs. 1,00,00,000/- (Rupees one crore) being the consideration of a landed property/building, measuring 40 feet x 75 feet between plot No. A-47 to A-55, at Sikar House, Near Chandpole, Jaipur, Rajasthan. Accordingly, the said amount was deposited through Vijaya Bank, Pasighat Branch to ICICI Bank and SBBJ Bank in their bank account, in four installments, @ Rs. 25,00,000/- (Rupees Tewnty Five Lacs), each, on 19.07.2016, in the name of Shri Ram Enterprise (Proprietor Shri Chandra Mohan Badaya), on 20.07.2016, in the name of A.R. Properties and Coloniser (Proprietor Chandra Mohan Badaya), on 22.07.2016 in the name of Smti. Sashi Natani, and on 25.07.2016 in the name of Chandra Mohan Badaya respectively. But, when the complainant had visited the said place and premises, the accused persons refused to hand over and exchanges the aforesaid premises to him. Inspite of his repeated request the accused persons failed to fulfill the conditions given by them and all the accused were in a conspiracy to defraud him. And thereby the accused persons cheated him and caused financial loss and mental agony to him. Then being left with no other option he lodged the complaint with the O/C Pasighat Police Station. Then registering a case, being Pasighat P.S. Case No. 227/2017, under sections 420/120B/34 IPC, the O/C Pasighat P.S. had endorsed S.I. T. Buker, to investigate the same.” 4.
Then being left with no other option he lodged the complaint with the O/C Pasighat Police Station. Then registering a case, being Pasighat P.S. Case No. 227/2017, under sections 420/120B/34 IPC, the O/C Pasighat P.S. had endorsed S.I. T. Buker, to investigate the same.” 4. When investigation is being carried out, the petitioners have approached this court by filing the present petition, for quashing the said FIR, by invoking its jurisdiction under section 482 Cr.P.C. on the following grounds: (i) Even if the entire allegation made in the FIR are taken in their face value, no ingredients of the offence under section 420 IPC, not to speak of a cognizable offence, is made out against the petitioners. (ii) The dispute is civil in nature giving raise to civil liability and even after expiry of four years of payment no claim has been made, which goes to show that there is no liability. (iii) There is delay of 15 months, after the last transaction, in lodging the FIR on 15.11.2017. (iv) There is no assertion that the petitioners have fraudulently or dishonestly induced the informant to pay the money. (v) There is suppression of material facts, and with malafide intention, the case has been filed by the complainant. Therefore, and also in view of the judgment of Hon’ble Supreme Court in the case of the State of Haryana vs. Bhajan Lal, (1992) Supp. (1) SCC 335, it is contended to allow the petition. 5. I have Mr. Biswajit Prasad, learned counsel for the petitioner and also heard Ms. L. Hage, learned Addl. P.P. for the state of Arunachal Pradesh. 6. Mr. Prasad, learned counsel for the petitioners, has reiterated the grounds as aforesaid and also submits that suppressing material facts the petitioner has filed the FIR. Mr. Prasad submits that after receipt of the amount, as mentioned in the FIR, the petitioner has made payment for a sum of Rs. 54,00,000/- (Rupees Fifty Four lacs) from 25.07.2016 to 19.09.2017 and against the transfer of Rs. 75,00,000/- (Rupees Seventy Five Lacs) there remains to be paid a sum of Rs. 21,00,000/- (Rupees Twenty One lacs) only.
Mr. Prasad submits that after receipt of the amount, as mentioned in the FIR, the petitioner has made payment for a sum of Rs. 54,00,000/- (Rupees Fifty Four lacs) from 25.07.2016 to 19.09.2017 and against the transfer of Rs. 75,00,000/- (Rupees Seventy Five Lacs) there remains to be paid a sum of Rs. 21,00,000/- (Rupees Twenty One lacs) only. It is further submitted that besides, the petitioner on the instruction of the attorney of the complainant on 10.10.2016, had executed two numbers of Sale Deeds in respect of landed property at Chaksu, Jaipur (Rajasthan) through his company Lakshmipriya Real estate Pvt. Ltd. in the name of Smti. Shalini Agarwal, wife of the complainant and Smti. Jaya Agarwal, sister-in-law of the complainant, for the total consideration of Rs. 54,00,000/- (Rupees Fifty Four Lacs) for each Sale Deed, and the Sale Deed consideration was received through four numbers of post dated cheques and two cheques of Rs. 27,00,000/- (Rupees Tewnty Seven Lacs ) each got dishonoured on presentation. And the complainant has suppressed these material facts while filing the FIR. Mr. Prasad also referred one case law in M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, 2021 (0) Supreme (SC) 199, specially he relied upon paragraph No. 12, and another case law in A.P. Mahesh Cooperative Urban Bank Shareholders Welfare Association vs. Ramesh Kumar Bung and Others, (2021) 9 SCC 152 to contend that the complainant has converted the civil dispute into a criminal dispute, with a view to pressurize the petitioners. Mr. Prasad also referred another case law in Sushil Sethi and Another vs. State of Arunachal Pradesh and Others, Criminal Appeal No. 125 of 2020 and SLP (Crl.) No. 590 of 2019, to contend that no ingredients of the offence under section 420 IPC is made out from a bare perusal of the FIR. Therefore, it is contended to allow the petition. 7. Per contra, Ms. L. Hage, learned Addl. P.P. producing Status Report of investigation, submits that investigation of the case is pending due to non cooperation of the accused persons. Ms.
Therefore, it is contended to allow the petition. 7. Per contra, Ms. L. Hage, learned Addl. P.P. producing Status Report of investigation, submits that investigation of the case is pending due to non cooperation of the accused persons. Ms. Hage further submits that on 24.03.2022, written information has been received from the complainant that he is being harassed and pressurized to withdraw the case by the accused Chandra Mohan Badaya, who also filed a Case No. 64/2022, with the Chaku Police Station and Pawan Agarwal also filed one Case No. 132/2022, with the Vidyadhar Police Station against the complainant. Ms. Hage further submits that no case for quashing is made out here in this case, and therefore, it is contended to dismiss the petition. Ms. Hage also referred two case laws (i) Skoda Auto Volkswagen India Private Limited vs. State of Uttar Pradesh and Others, 2020 (4) Crimes (SC) 455, to contend that if a perusal of the FIR leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of police and (ii) Rajesh Bajaj vs. State NCT of Delhi and Others, (1999) 3 SCC 259 , to contend that it is not necessary for the complainant to reproduce all the ingredients of the offence in his complaint nor it is necessary complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Ms Hage further submits that meticulous scrutiny is not necessary at the investigation stage though such an endeavor is justified during trial. If factual foundation is laid in the complaint, the court should not hasten to quash proceeding. 8. Having heard the submission of learned Advocates of both side I have carefully gone through the petition and the documents placed on record carefully and also the case laws referred by them in support of their respective submissions. And also I have gone through the impugned FIR carefully. 9. A cursory perusal of the FIR reveals following facts and circumstances: (i) Petitioner No. 1-Shri Chandra Mohon Badaya and petitioner No. 3-Shri Rajesh Natani has contracted the family of the Complainant Anil Kumar Agarwal on 02/03/2016, asking for a sum of Rs. 1,00,00,000/- (Rupees one crore) being the consideration of a landed property/building, measuring 40 feet x 75 feet between plot No. A-47 to A-55, at Sikar House, Near Chandpole, Jaipur, Rajasthan.
1,00,00,000/- (Rupees one crore) being the consideration of a landed property/building, measuring 40 feet x 75 feet between plot No. A-47 to A-55, at Sikar House, Near Chandpole, Jaipur, Rajasthan. (ii) The complainant-Shri Anil Agarwal had, accordingly, paid the said amount through Vijaya Bank, Pasighat Branch to ICICI Bank and SBBJ Bank in the bank account of the petitioners in four instalments @ Rs. 25,00,000/- (Rupees Tewnty Five Lacs), each, on 19.07.2016 in the name of Shri Ram Enterprise (Proprietor Shri Chandra Mohan Badaya), on 20.07.2016 in the name of A.R. Properties and Coloniser (Proprietor Chandra Mohan Badaya), on 22.07.2016 in the name of Smti. Sashi Natani and on 25.07.2016 in the name of Chandra Mohan Badaya respectively. (iii) Thereafter, the complainant had visited the said place and premises. (iv) But, the accused persons refused to hand over and exchange the aforesaid premises to him. (v) Inspite of the repeated request the accused persons failed to fulfill the conditions given by them and all the accused were in a conspiracy to defraud him. (vi) And thereby the accused persons cheated him and caused financial loss and mental agony to him. 10. If the aforesaid facts and circumstances are taken at their face value, this Court left unconvinced that there is no prima-facie material to disclose commissions of cognizable offence by the petitioners. In fact, factual foundation for the offences under Section 420/120B/34 IPC is laid in the FIR of which the offence under Section 420 is a cognizable offence. It is to be noted here that the case is still in the stage of investigation. As held in the case of Rajesh Bajaj (supra) it is not necessary for the complainant to reproduce all the ingredients of the offence in his complaint nor it is necessary complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Meticulous scrutiny is not necessary at the investigation stage though such an endeavor is justified during trial. 11. It is to be mentioned here that the petitioners have disputed the facts stated in the FIR, though they admitted some of the parts. They have also projected a different story in their defence.
Meticulous scrutiny is not necessary at the investigation stage though such an endeavor is justified during trial. 11. It is to be mentioned here that the petitioners have disputed the facts stated in the FIR, though they admitted some of the parts. They have also projected a different story in their defence. However, with respect to the disputed question of facts, there is a well-settled position of law through a string of judgments delivered by the Supreme Court in the cases of R.P. Kapur (supra), Bhajan Lal (supra), State of Bihar vs. P.P. Sharma, 1992 Supp. (1) SCC 222 and Zandu Pharmaceutical Works Ltd. (supra) that the same (disputed question of facts) cannot be adjudicated by the court under section 482 Cr.P.C. 12. In the case Mohd. Akram Siddiqui vs. State of Bihar, (2019) 13 SCC 350 , Hon’ble Supreme Court has held as under: “5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the documents on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung vs. Essem Chemical Industries, State of Haryana vs. Bhajan Lal and Harshendra Kumar D. vs. Rebatilata Koley, to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.” 13. In the case of CBI vs. Arvind Khanna, (2019) 10 SCC 686 , Hon’ble Supreme Court has held as under: “17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C. the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. 18.
The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. 18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.” 14. In the case of Dineshbhai Chandubhai Patel vs. State of Gujarat and Others, (2018) 3 SCC 104 , following its earlier decision in State of West Bengal vs. Swapan Kumar Guha, (1982) 1 SCC 561 , it has been held that High court cannot decide the issues arising out of the case like an investigation agency or/an appellate authority by little realizing that it was exercising the inherent jurisdiction under Section 482 of the Cr.P.C. In the case of Swapan Kumar Guha (supra) it has been held that “the right of inquiry by police is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason to suspect unless the F.I.R. prima-facie discloses the commission of such an offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.” 15. Similar observation is made by the Hon’ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. (Supra): (i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences. (ii) Courts would not thwart any investigation into the cognizable offences. (iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty).
(iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty). (v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. (vi) Criminal proceedings ought not to be scuttled at the initial stage. (vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule. (viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. (ix) The functions of the judiciary and the police are complementary, not overlapping. (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences. (xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. (xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure. (xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court.
(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court. (xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint. (xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C. only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR. (xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C. while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
(xvii) Even in a case where the High Court is prima-facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an-interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. (xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 16. As discussed herein above, this is not the case where it can be said that the FIR did not disclose the commission of an offence. The petitioners must have to make out very exceptional circumstances to interfere with the investigation at the very threshold as held in the case of Bhajan Lal (supra) and M/s Neeharika Infrastructure Pvt. Ltd. (Supra). Whether the materials already existed and collected during investigation would be sufficient to disclose the ingredients of the offences petitioners and holding them guilty has to be considered at the stage of trial. Such an enquiry cannot be embarked upon at this stage as held by Hon’ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. (Supra). 17. It is one of the contentions of the petitioner that the allegation made in the FIR gives rise to a civil claim only and criminal colour is given to it to put pressure upon them. But, it does not mean that a criminal complaint is not maintainable on this count. Reference in this context can be made to a decision of Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and Another, Criminal Appeal No. 1407 of 2012 and SLP (Crl.) No. 1516 of 2010. 18. The submission advanced at the Bar received due consideration of this court.
Reference in this context can be made to a decision of Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and Another, Criminal Appeal No. 1407 of 2012 and SLP (Crl.) No. 1516 of 2010. 18. The submission advanced at the Bar received due consideration of this court. I have also carefully gone through the case laws relied upon by the learned counsels of both the parties. And I find no force in the submission of Mr. B. Prasad, learned Counsel for the petitioners. Though Mr. Prasad has relied upon paragraph No. 12 of the case of M/s Neeharika Infrastructure Pvt. Ltd. (Supra), yet it is also held in the said paragraph that when the facts are hazy and the investigation has just begun, the High Court should be circumspect in exercising such power and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under provision of the court. Thus, the case laws, so referred by him also would not come into his aid. On the other hand I find substance in the submissions advanced the learned Addl. P.P. and the case law, referred by her also fortified her submissions. 19. Here in this case petitioners have failed to make out very exceptional circumstances to interfere with the investigation at this stage. Therefore, and also in view of the discussion made herein above, I find no merit in this petition, and accordingly, the stands dismissed. The parties have to bear their own costs.