Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 133 (JK)

Ifikhar Khan Salaria v. Station House Officer

2023-04-06

RAJNESH OSWAL

body2023
JUDGMENT : 1. The present petition has been filed by the petitioners, who are the husband and wife respectively, for quashing the FIR bearing No. 56/2021, dated 03.11.2021 for commission of offences under sections 420 and 448 IPC registered with Police Station, Peer Mitha, Jammu registered by Respondent No. 1 at the instance of Respondent No. 2. It is stated that the Respondent No. 2 was known to the petitioners and she is an NRI residing in London. The agreement to sell with regard to single storey house constructed over the land measuring 30'x35' bearing No. 32, Mohallah Jatkatian, Jammu was executed between Petitioner No. 2 and Respondent No. 2 on 28.09.2019 and as per agreement to sell (supra), the possession of the house was handed over to the petitioner No. 2. It is further stated that Petitioner No. 1 was appointed as a Special Power of Attorney by Respondent No. 2 to contest the civil suit that was ultimately dismissed on 30.12.2020. Respondent No. 2 on the same date i.e. 28.09.2019 when the agreement to sell was executed between Petitioner No. 2 and Respondent No. 2, also executed a rent deed in favour of Petitioner No. 2 with regard to the same property. Yet another agreement to sell dated 20.11.2020 was executed between Respondent No. 2 and Petitioner No. 2 and as per said agreement to sell, it was mutually agreed that the balance amount of Rs. 12,00,000/- shall be paid by the Petitioner No. 2 to Respondent No. 2 at the time of registration of sale deed. The Petitioner No. 1 claims that they have started the renovation of the house and further claim that an amount of Rs. 10,00,000/- has been spent to make it habitable. In the month of January, 2021, the Respondent No. 2 started impressing upon the petitioners to transfer the balance amount immediately to her account. The Petitioner No. 1 further claims to have tried his best to persuade the Respondent No. 2 to understand that the balance amount is to be payable only at the time of execution of the sale deed in terms of agreement to sell but Respondent No. 2 threatened the petitioners that in case the balance payment is not deposited, then she would throw them out of the property and find a new buyer. 2. 2. The petitioners have further stated that negotiations continued between the Respondent No. 2 and the petitioners and even a meeting was fixed in the office of IGP, Jammu, the petitioners showed all the documents to IGP, Jammu and were even having a cheque of Rs. 12,00,000/- with them to show their intention to adhere to the agreement to sell, but Respondent No. 2 was adamant and wanted the balance amount without execution of the sale deed. After the aforesaid meeting, the Respondent No. 2 threatened the petitioners of their dispossession from the house that prompted the Petitioner No. 2 to file a civil suit for injunction against the Respondent No. 2, which is sub judice before the court of the learned Sub Judge, Jammu. The learned Sub Judge, Jammu vide order dated 09.02.2021 has restrained the Respondent No. 2 and her brother from interfering into the peaceful possession of the Petitioner No. 2 qua the house mentioned above, but despite that Respondent No. 2 continued to threaten the petitioners with dire consequences including dispossession. Apprehending their imminent eviction despite the restraint order issued by the learned Sub Judge, the Petitioner No. 2 laid a motion before Sub Judge, Jammu for implementation of the interim directions as issued vide order dated 09.02.2021 and the court of learned Sub Judge, Jammu vide order dated 03.11.2021 directed In-charge, Police Station, Peer Mitha, Jammu to implement the order dated 09.02.2021. It is further averred that the moment the order dated 03.11.2021 was forwarded to Respondent No. 1, impugned FIR was registered by Respondent No. 1 at the instance of Respondent No. 2 on the same date. 3. The petitioners in view of the above facts, have impugned the FIR bearing No. 56/2021 for commission of offences under sections 420 and 448 IPC registered with Police Station, Peer Mitha, Jammu, on the ground that the allegations levelled in the FIR are so absurd that even if, they are taken at their entirety on their face value, still no offence is made out against the petitioners. It is further stated that the FIR has been lodged by Respondent No. 2 against the petitioners only after the restraint order was sought to be implemented through respondent No. 1 and in fact under the garb of the said FIR, the Respondent No. 2 wants to obtain the balance payment of Rs. It is further stated that the FIR has been lodged by Respondent No. 2 against the petitioners only after the restraint order was sought to be implemented through respondent No. 1 and in fact under the garb of the said FIR, the Respondent No. 2 wants to obtain the balance payment of Rs. 12 lacs without execution of the formal sale deed in favour of Petitioner No. 2. 4. Response stands filed by Respondent No. 2 in which besides raising a preliminary objection with regard to the maintainability of the present petition, it is stated that Respondent No. 2 executed a rent deed dated 28.09.2019, agreement to sell dated 28.09.2019 and further that in the rent deed there is a stipulation that lessee shall not make any addition in the above mentioned house/property without the consent of the land lady. It is further stated that the Petitioner No. 1 with the intervention of family friends ultimately paid the sum of Rs. 3,00,000/ and 2,00,000/ through two cheques to the Respondent No. 2. It is further averred that no fresh agreement to sell dated 20.11.2020 was ever entered into and executed between Petitioner No. 2 and respondent No. 2 and the said agreement to sell bears the forged signatures of Respondent No. 2, regarding which she has already lodged criminal complaint against the petitioners before the Crime Branch, Jammu. The Respondent No. 2 has further categorically stated that the Petitioner No. 1 failed to come forward to pay the remaining amount of sale transaction of 12 lacs within a period of 90 days and finally the said agreement to sell was cancelled. The public notice was published in local Daily Newspapers on 24th and 26th August, 2021. It is further stated that Respondent No. 2 on 07.10.2021 returned to Jammu from London and came to know that the petitioners have illegally trespassed into her house/property with one Shabir and destroyed her property. The matter was immediately reported to the Police and that led to the registration of FIR No. 56/2021 which is impugned herein. Respondent No. 2 has further admitted the pendency of the civil suit between the Petitioner No. 2 and Respondent No. 2. 5. Mr. The matter was immediately reported to the Police and that led to the registration of FIR No. 56/2021 which is impugned herein. Respondent No. 2 has further admitted the pendency of the civil suit between the Petitioner No. 2 and Respondent No. 2. 5. Mr. Yaseer Ejaz Tak, learned counsel for the petitioners vehemently argued that as per terms and conditions of agreement to sell dated 28.09.2019, the possession of the house was handed over to Petitioner No. 2 as such, there is no question of trespassing in to the property in question. He further vehemently argued that the present FIR has been filed by Respondent No. 2 only to get the balance amount of Rs. 12,00,000/- without execution of the formal sale deed. 6. Per contra, Mr. Pawan Dev Singh, learned Dy. AG appearing for Respondent No. 2 vehemently argued that the bare perusal of the FIR impugned reveals that there are serious allegations against the petitioners regarding the commission of offences under sections 420 and 448 IPC and as such it cannot be quashed. 7. Per contra, Mr. D.S. Chouhan, learned counsel appearing for Respondent No. 2 vehemently argued that both civil and criminal proceedings can continue simultaneously and as such, the present petition is misconceived. He places reliance upon the judgment of the Supreme Court in "P. Swaroopa Rani v. M. Hari Narahyana, AIR 2008 SC 1884 " and judgment of this Court in "Sheikh Naseer Ahmed v. State of J&K & Ors., decided on 28.07.2021". 8. Heard and perused the record. 9. From the record, the following admitted facts emerge: i) That Respondent No. 2 executed agreement to sell dated 28.09.2019 in respect of house mentioned above in favour of the Petitioner No. 2. ii) That on 28.09.2019, the Respondent No. 2 also executed the rent deed in favour of the Petitioner No. 2. iii) That Respondent No. 2 has received an amount of Rs. 6,00,000/- vis-a-vis the house mentioned above, from the Petitioner No. 2. iv) That a civil suit is pending between the Petitioner No. 2 and Respondent No. 2 in the court of learned Sub Judge, Jammu. iii) That Respondent No. 2 has received an amount of Rs. 6,00,000/- vis-a-vis the house mentioned above, from the Petitioner No. 2. iv) That a civil suit is pending between the Petitioner No. 2 and Respondent No. 2 in the court of learned Sub Judge, Jammu. v) That the interim order dated 09.02.2021 whereby the Respondent No. 2 and her brother were restrained from interfering into the peaceful possession of Petitioner No. 2 qua the suit property, was sought to be implemented by the Petitioner No. 2 and pursuant to her motion, the learned Sub Judge, Jammu vide order dated 03.11.2021 directed the In-charge Police Station, Peer Mitha to implement the said order. 10. While it is settled law that a single act may give rise to civil wrong and criminal offence and merely because the civil remedy is available, the criminal proceedings cannot be quashed and it is under such circumstances only, the civil and criminal proceedings can continue simultaneously. But in a case, where the essential ingredients of the offence are missing and the criminal proceedings are used to settle the civil disputes, then to prevent the abuse of process of law, the criminal proceedings can be quashed. In "R. Nagender Yadav v. State of Telangana, (2023) 2 SCC 195 ," the Hon'ble Apex Court has held as under:- "19. While exercising its jurisdiction under section 482 Cr.P.C., the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court." 11. In such a situation, if civil remedy is available and is in fact adopted, as has happened in the case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of court." 11. In "Vijay Kumar Ghai v. State of West Bengal, (2022) 7 SCC 124 ," the Hon'ble Apex Court has cautioned about using criminal proceedings for settling the civil disputes by observing as under:- "25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: "13. ...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."" 12. The FIR impugned was registered on 03.11.2021. The contention of learned counsel for the petitioners is that no offence is made out. A perusal of the application, pursuant to which the FIR impugned was registered, reveals that the complainant had entered into agreement with Petitioner No. 2 for the sale of the house reference whereof has been made above, and payment was to be made within three months. The Respondent No. 2 came from London four times, but no payment was made and it is also stated in the application that immediately after the agreement to sell, the petitioners entered into her house without her permission and started renovation without her knowledge. The Respondent No. 2 has admitted that she has received an amount of Rs. 6,00,000/. The sum of Rs. 1 lac was received by the respondent No.2 at the time of the execution of the agreement to sell and thereafter, she received an amount of Rs. 2 lacs and 3 lacs by way of two cheques. In "Vijay Kumar Ghai v. State of W.B., (2022) 7 SCC 124 ", the Hon'ble Apex Court has held that the following ingredients need to be proved so far as offence of cheating is concerned: "A. The representation made by the person was false b. The accused had prior knowledge that the representation he made was false. c. The accused made false representation with dishonest intention in order to deceive the person to whom it was made. 4. c. The accused made false representation with dishonest intention in order to deceive the person to whom it was made. 4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed." 13. In "Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 ", the Apex Court has held as under:- "6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under sections 420/120-B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000, they would pay a sum of Rs. 2,60,000 to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs. 4,20,000. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under section 420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under section 482 Cr.P.C. which it has erroneously refused." 14. Now coming to the facts of the present case, from the allegations levelled in the complaint, it is evident that essential ingredients of offence of cheating are missing. The grouse of Respondent No. 2 is that payment was required to be made within the period of three months but despite her coming to India four times from London, the balance payment was not made to her. There is no allegation that the intention of the petitioners was to cheat from the very beginning but admitted fact remains that the Respondent No. 2 received the sum of Rs. 5 lacs after the execution of agreement to sell. The allegations even if they are accepted in its entirety ignoring the defence of the petitioners, the same at the most may amount to breach of contract but in no way establish offence of cheating against the petitioners. Thus this court is of the considered view that no offence under section 420 IPC is made out against the petitioners. 15. The allegations levelled in the FIR are that the petitioners trespassed in to her house without her permission. In order to establish an offence under section 448 IPC, there must be 'criminal trespass' into any building, tent or vessel used as a human dwelling, or on any building used as a place of worship or as a place of custody of property. Further Section 441 IPC defines a criminal trespass as under:- "441. In order to establish an offence under section 448 IPC, there must be 'criminal trespass' into any building, tent or vessel used as a human dwelling, or on any building used as a place of worship or as a place of custody of property. Further Section 441 IPC defines a criminal trespass as under:- "441. Criminal trespass- whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby intimidate insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'" 16. Thus, a person can be said to have committed a criminal trespass when he enters into the property in possession of another with intent to commit an offence or to intimidate insult or annoy any person in possession of such property or having lawfully entered into such property, unlawfully remains there with intent to intimidate insult or annoy such person or with intent to commit an offence. 17. The possession of Petitioner No. 2 is permissive as is evident from the clause 5 of the agreement to sell dated 28.09.2019. Thus, once the Petitioner No. 2 is in permissive possession of the property and that too under an agreement to sell, she cannot be said to have committed an offence under section 448 IPC. The civil suit is pending before the civil court and the Respondent No. 2 can seek the redressal of her grievances through the civil proceedings. 18. In view of all what has been said and discussed above, the present petition is allowed. FIR bearing No. 56/2021, dated 03.11.2021 for commission of offences under sections 420 and 448 IPC registered with Police Station, Peer Mitha, Jammu is quashed. The decision of this Court shall not have any effect on the pendency of any other civil or criminal proceedings between the parties. 19. Disposed of.