Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 1829 (RAJ)

Radheshyam S/o Likhma Ram v. State of Rajasthan

2023-09-27

KULDEEP MATHUR

body2023
JUDGMENT : KULDEEP MATHUR, J. 1. The instant criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners seeking quashing of the FIR No. 215/2022 registered at Police Station Rajgarh, District Churu for the offences under Sections 420 and 406 IPC. 2. As per the FIR, the complainant-respondent No. 2 Mohammed Naseem son of Abdul Gani submitted a written report before PS concerned alleging inter alia that there is a property named Swami Tower located in Sheetla Bazaar, Rajgarh, District Churu with many shops constructed inside it, whose owners are accused-petitioner Nos. 1, 2 and 3 namely Radheshyam, Sumitra and Nand Lal respectively. 3. As per the FIR, on 29.06.2020, around 9 am, one Jagdish Kumar @ Jugal Mistry visited the house of the complainant-respondent No. 2 and told him that the Swami Tower situated in Sheetla Bazaar is for sale, since a lot of financial debt has accrued over the said property. Jagdish Kumar @ Jugal Mistry further told the complainant-respondent No. 2 that he will facilitate the purchase of the said property, if the complainant-respondent is interested in buying the same. The complainant-respondent No. 2 told accused Jagdish Kumar @ Jugal Mistry to call the owners of the property at around 2 PM, upon which, the petitioners Radheshyam, Sumitra and Nand Lal along with Jagdish Kumar visited the house of the complainant-respondent No. 2. The complainant-respondent No. 2 and the petitioners mutually agreed to sell the property for an amount of Rs. 5 crores and 11 lacs. Upon an agreement being reached at between the parties, the complainant-respondent No. 2 paid a sum of Rs. 11 lacs (Rs. 6 lacs were paid in cash while Rs. 5 lacs were paid through cheque) to accused-petitioners Radheshyam, Nand Lal and Sumitra in the presence of accused Jagdish Kumar @ Jugal Mistry. A photo copy of the agreement to sell dated 29.06.2020 arrived at between the parties, was given to the complainant-respondent No. 2 while the original document was retained by the accused-petitioners. 4. In order to purchase the property, the complainant-respondent has paid till date the accused-petitioners till date, a sum of Rs. 34,50,000 in cash and Rs. 65,50,000 through bank transfers in account of Swami Tower, in SBI Branch Industrial Area, Sadulpur, having Account No. 37468944579, in which Rs. 22,00,000/- were transferred and in another Bank Account of Swami Tower, having Account No. 37857373917, Rs. 34,50,000 in cash and Rs. 65,50,000 through bank transfers in account of Swami Tower, in SBI Branch Industrial Area, Sadulpur, having Account No. 37468944579, in which Rs. 22,00,000/- were transferred and in another Bank Account of Swami Tower, having Account No. 37857373917, Rs. 43,50,000/- were transferred. A total of Rs. 1 crore has been paid by the complainant- respondent to the accused-petitioners. 5. On 23.05.2022, the complainant-respondent No. 2 told accused-petitioners that almost 2 years have elapsed since the agreement and the registry of the property may now be executed in his favour. The accused-petitioners refused to execute the registry in favour of the complainant-respondent No. 2. In these facts and circumstances, the complainant- respondent No. 2 lodged an FIR alleging accused-petitioners of hatching a conspiracy, having dishonest intention of cheating the complainant-respondent from the very beginning in order to grab his money for their personal gains. 6. Learned counsel for the petitioners submitted that a bare perusal of the FIR reveals that the dispute between the parties is purely of commercial/civil nature. Learned counsel submitted that the agreement to sale deed dated 29.06.2020, executed by the petitioners is only in relation to 527 square meter area on the 5th floor of Swami Tower. It was submitted that the petitioners are ready and willing to execute the agreement to sell/sale deed, subject to the condition that the complainant-respondent No. 2 pays the remaining due amount as per the terms of agreement to sell dated 29.6.2020. 7. Learned counsel vehemently submitted that a suit for specific performance has already been filed by the complainant-respondent No. 2 against the petitioners before the competent civil court at Rajgarh, Churu. Learned counsel for the petitioners submitted that the FIR does not contain any averment inferring fraudulent or dishonest inducement having been made by the petitioners pursuant to which the complainant-respondent No. 2 parted with the money. 8. Learned counsel submitted that FIR has been filed by the complainant-respondent No. 2, only with a view to exert pressure upon the petitioners to succumb to the demands of the complainant-respondent No. 2. It was, therefore, prayed that the FIR No. 215/2022 registered at Police Station Rajgarh, District Churu may be quashed by this Court in exercise of its inherent powers under Section 482 Cr.P.C. 9. It was, therefore, prayed that the FIR No. 215/2022 registered at Police Station Rajgarh, District Churu may be quashed by this Court in exercise of its inherent powers under Section 482 Cr.P.C. 9. Learned counsel to fortify his submissions, placed reliance on the judgment passed by Hon’ble the Supreme Court and this Court in the cases of Kapil Agarwal and Others vs. Sanjay Sharma and Others (Criminal Appeal No. 142 of 2021) decided on 01.03.2021 and Ramesh Chandra and Another vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 419/2012) decided on 12.09.2017 respectively. 10. Per contra, learned Public Prosecutor and learned counsel for the complainant- respondent No. 2 have vehemently opposed the submissions advanced on behalf of the petitioners. Learned counsel submitted that as per the agreement to sell/sale deed dated 29.06.2020, the petitioners had agreed to sell the entire Swami Tower situated at Sheetla Bazar for a consideration of Rs. 5 crores and 11 lacs and in furtherance thereof, a huge advance amount had been accepted by them. Learned counsel submitted that the petitioners after receiving the advance amount, and clearing their outstanding loan, obtained by them from various banks, have not executed the sale deed/registry in relation to entire Swami Tower but are showing their willingness to execute sale deed/registry only to the extent of 5th floor of the property. 11. Learned counsel vehemently submitted that the petitioners had intention to cheat the complainant-respondent No. 2 from the very beginning. Learned counsel contended that from perusal of the FIR, it is evident that the matter is not of commercial/civil nature, the petitioners had cheated the complainant-respondent No. 2 and had fraudulently and dishonestly induced him to enter into an agreement, pursuant to which the complainant-respondent No. 2 had parted with the money. 12. Learned counsel vehemently and fervently submitted that merely because civil remedy is available, the FIR lodged by the complainant-respondent No. 2 cannot be quashed and the complainant-respondent No. 2 cannot be restrained from pursuing remedies available to him under both civil and criminal laws. 13. 12. Learned counsel vehemently and fervently submitted that merely because civil remedy is available, the FIR lodged by the complainant-respondent No. 2 cannot be quashed and the complainant-respondent No. 2 cannot be restrained from pursuing remedies available to him under both civil and criminal laws. 13. Navigating the Court through various allegations levelled in the FIR, learned counsel submitted that offences under Sections 420 and 406 IPC are made out against the petitioners and it is not a case warranting exercise of inherent powers under Section 482 Cr.P.C. especially when the impugned FIR discloses commission of a cognizable offence and the same has been found to be proved against the petitioners by the investigating agency. 14. Learned counsel prayed that the present misc. petition seeking quashment of FIR may be dismissed by this Court. 15. Learned counsel, in support of his submissions, placed reliance on the following judgments: 1. State of Haryana and Others vs. Ch. Bhajan Lal and Others, (1992) Supp. 1 SCC 335 2. Medchi Chemicals and Pharma Pvt. Ltd. vs. Biological E. Ltd. 2000 (2) Supreme 261 3. T. Vengama Naidu vs. T. Dora Swamy Naidu, 2007 (2) WLC (SC) Criminal 101 4. Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayana Reddy and Others, (2011) 12 SCC 437 5. Veer Prakash Sharma vs. Anil Kumar Agarwal and Another, (2007) 7 SCC 373 6. Satish Mehra vs. State of NCT of Delhi and Another, (2012) 11 JT 336 7. Yash Sharma and Others vs. Mohan Dev Sharma and Another, 2013 (3) WLC (Raj.) 641 8. Rama Prakash Bhargav vs. State of Rajasthan and Another, 2013 (4) WLC (Raj.) 451 9. Umesh Zadgaonkar and Others vs. State of Rajasthan and Another, 2013 (3) WLC (Raj.) 666 10. Mahesh Choudhary vs. State of Rajasthan, 2008 (1) WLC (Raj.) 458 11. Pratibha vs. Rameshwari Devi and Others, 2008 (1) WLC (SC) Criminal 88 12. Sirajul and Others vs. State of Uttar Pradesh and Another, 2015 AIR SCW 4010 13. Mainuddin Abdul Sattar Shaikh vs. Vijay D. Salvi, 2015 AIR SCW 4015 14. Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others, 2021 Cri. L.R. (SC) 1212 15. K. Jagadish vs. Udaya Kumar G.S. and Another, 2021 Cri. L.R. (SC) 1246 16. State of Madhya Pradesh vs. Dhruv Gurjar and Another, AIR 2019 SC 1106 16. Mainuddin Abdul Sattar Shaikh vs. Vijay D. Salvi, 2015 AIR SCW 4015 14. Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others, 2021 Cri. L.R. (SC) 1212 15. K. Jagadish vs. Udaya Kumar G.S. and Another, 2021 Cri. L.R. (SC) 1246 16. State of Madhya Pradesh vs. Dhruv Gurjar and Another, AIR 2019 SC 1106 16. Heard learned counsel for the petitioners, learned Public Prosecutor so also learned counsel for the complainant-respondent No. 2. Perused the impugned FIR and material available on record. 17. A coordinate Bench of this Court vide order dated 05.07.2023 had directed learned Public Prosecutor to call for the case diary. In compliance of the order passed by this Court, case diary had been produced for the perusal of this Court. 18. From the perusal of the case diary, this Court finds that during investigation, the Investigating Officer found that the written agreement to sell the property had been executed on a plain paper on 29.06.2020, as per which, the property was agreed to be sold for Rs. 5 crores and 11 lacs. As per the agreement dated 29.06.2020, the complainant- respondent Mohammed Naseem had paid a total sum of Rs. 65,50,000/- in the bank account of Swami Tower on various dates and a sum of Rs. 34,50,000/- had been paid in cash to accused-petitioners Radheshyam and Nandlal. The accused-petitioners, with fraudulent and dishonest intention, cheated the complainant-respondent No. 2 of his hard earned money, with the sole intention of bringing the bank account of Swami Tower out of the category of defaulter bank account. 19. The agreement to sell dated 29.06.2020 has been placed on record by the complainant respondent no. The accused-petitioners, with fraudulent and dishonest intention, cheated the complainant-respondent No. 2 of his hard earned money, with the sole intention of bringing the bank account of Swami Tower out of the category of defaulter bank account. 19. The agreement to sell dated 29.06.2020 has been placed on record by the complainant respondent no. 2-Mohammed Naseem, which is reproduced below for ready reference: ^^Lokeh Vkoj] lhryk cktkj] jktxढ+ ÁksijkbZVj Jh jk/ks';ke Lokeh Jh uUnyky Lokeh ,oa Jherh lqfe=k nsoh iRuh Jh jk/ks';ke Lokeh viuk Lokeh Vkoj vkt fnukad 29-06-2020 dks ;Fkk fLFkfr esa gS mldks ;g rhuksa lnL; Jh jk/ks';ke Lokeh] Jh uUn yky Lokeh ,oa Jherh lqfe=k nsoh Lokeh] Jh uUn yky Lokeh ,oa Jherh lqfe=k nsoh Lokeh Lokeh Vkoj dk foØ; vkt fnukad 29-06-2020 dks ckr gqbZ gS Øsrk Jh eksgEen ulhe dqjS'kh iq= Jh vCnqy xuh dqjS'kh lknqyiqj dks 5 djksM+ 11 yk[k :i;s v[kjs ikap djksM+ X;kjg yk[k :i;s esa cspus dh jde r; dh gSA vkt fnukad 29-06-2020 dks lkbZ isVs ikap yk[k :i;s udn ,oa N% yk[k :i;s dk pSd dqy X;kjg yk[k :i;s dh lkbZ is'kxh ns nh gSA Jh jk/ks';ke Lokeh ds uke ls pSd ,oa uxn jkf'k Jh uUnyky Lokeh dks lqiqnZ dj nh gSA Øsrk Jh eksgEen ulhe dqjS'kh ,d djksM+ :i;s dh jkf'k e; is'kxh jkf'k ds 30 flrEcj rd ns nh tkosxh ,oa 'ks"k jkf'k 30 flrEcj 2020 ds i'pkr~ iUæg ekg esa lqfo/kk vuqlkj Hkqxrku djrs jgsaxsA iwjk iSeUV vkt fnukad ls 18 ekg es gks tk,xk blls iwoZ Lokeh Vkoj ds lEcU/k esa tks Hkh fy[kk iढ+h gqbZ gS dks fujLr ekuh tk, ,oa bl lEcU/k esa nksuksa gh i{kdkj dksbZ mrj ugha djsaxsA vkt fnukad 29-06-2020 dks tks lkSnk r; gqvk gS ogha ekU; gksxkA mijksDr rQlhy esa N% yk[k :i;s dk pSd ds LFkku ij N% yk[k :i;s udn jkf'k dk Hkqxrku fd;k x;k gSA vr% dqy uxn jkf'k X;kjg yk[k :i;s dk Hkqxrku fd;k x;k gSA** gLrk{kj uUnyky Lokeh gLrk{kj txnh'k gLrk{kj eksgEEn ulhe dqjS'kh 29-06-2020 gLrk{kj lqfe=k nsoh gLrk{kj jk/ks';ke Lokeh gLrk{kj txnh'k gLrk{kj eksgEen ulhe dqjS'kh gLrk{kj uUnyky Lokeh 29-06-2020 (Emphasis supplied) 20. Having considered the rival submissions and after perusing the contents of the FIR, case diary and the factual report submitted by learned Public Prosecutor, this Court prima facie finds it difficult to hold that the impugned FIR does not disclose commission of offence under IPC. Having considered the rival submissions and after perusing the contents of the FIR, case diary and the factual report submitted by learned Public Prosecutor, this Court prima facie finds it difficult to hold that the impugned FIR does not disclose commission of offence under IPC. The agreement to sell dated 29.06.2020 indicates that the petitioners had initially agreed to sell the entire property i.e. Swami Tower to complainant-respondent No. 2 and had accepted huge sum of money in advance from him. The record of the case further prima facie indicates that the petitioners after receiving advance consideration paid in pursuance of the agreement to sell, are not ready or willing to execute the sale deed/registry of entire Swami Tower in favour of complainant-respondent No. 2. 21. In the prima-facie opinion of this Court, had the petitioners not expressly agreed to sell the entire property (Swami Tower) for Rs. 5 crores and 11 lacs, the complainant- respondent No. 2 might not have entered into an agreement dated 29.06.2020, with them. This Court also finds that since the petitioners were defaulting in their payments of loans taken from the banks, they with fraudulent and dishonest intention, induced and cheated the complainant-respondent No. 2 who paid a huge sum of money as advance consideration. 22. In view of aforesaid, this Court finds that the ingredients of offences under Sections 420 and 406 IPC are present in the instant case. 23. It is apposite to note that the allegations in the FIR have been investigated upon by the investigating agency and cognizable offences have been found to be proved/ made out against the present petitioners. 24. In the considered opinion of this Court, merely because civil remedy is available to the complainant-respondent No. 2, the same cannot be a ground to question the FIR and in case, the prosecution is unable to prove the charges levelled against the petitioners before competent criminal court, the result will follow. 25. In wake of discussion made above, this Court is of the view that this is not a fit case where the inherent powers under Section 482 Cr.P.C. should be exercised to quash the impugned FIR. Accordingly, the present misc. petition deserves to be and is hereby dismissed. 26. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of misc. petition. Accordingly, the present misc. petition deserves to be and is hereby dismissed. 26. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of misc. petition. The trial court shall not get prejudiced by the same.