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2024 DIGILAW 275 (GUJ)

Ghanshyambhai Kurjibhai Patel v. State of Gujarat

2024-02-09

CHEEKATI MANAVENDRANATH ROY

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JUDGMENT : CHEEKATI MANAVENDRANATH ROY, J. 1. This criminal misc. application under Section 482 of the Criminal Procedure Code, 1973 (Cr.P.C.) is filed seeking quash of the FIR being C.R. No. 11210012201475, registered with the Chowk Bazaar Police Station, Surat City and the Charge-sheet field thereafter, on completion of investigation in Criminal Case No. 23464 of 2021 on the file of 8th Additional Civil Judge and Additional Chief Judicial Magistrate First Class, Surat. 2. Heard, learned counsel for the petitioner, learned counsel for the second respondent-de facto complainant and the learned Additional Public Prosecutor for the respondent-State. 3. Facts of the case lie in a narrow compass and may be stated as follow: 3.1 Accused No. 2 (A-2) by name Vandanaben @ Vanitaben Mangalbhai Patel is the original owner of the house in question. The petitioner, who is A-1, purchased the said house from A-2 on 26.10.2016. Thereafter, on the request made by the A-2 to permit her to live in the said house as she has no shelter, as per the Live and Licence Document dated 12.04.2017 executed by the A-1 in favour of the A-2, she was permitted to live in the said house as she has no shelter. While, A-2 was living as a licencee in the said house, the petitioner, who is the A-1 has sold away the said house to the complainant, who is the second respondent herein. The complainant is fully aware of the fact that the A-1 is living the said house as a licencee and with the knowledge of the said fact she has purchased the said house. But the petitioner, who is A-1, assured the complainant that he would take steps to evict A-2 from the said house and deliver possession of the same to the complainant. 3.2 Alleging that in spite of the promise and assurance given by the petitioner, who is the A-1 to evict A-2 from that house, that he did not evict her from the said house and did not deliver the vacant possession of the said house to the complainant, she has lodged report with the police. The said report was registered as an FIR in the above crime. The crime was investigated and eventually, Charge-sheet was filed in the trial Court. The case is now pending trial in the trial Court. The said report was registered as an FIR in the above crime. The crime was investigated and eventually, Charge-sheet was filed in the trial Court. The case is now pending trial in the trial Court. 3.3 The petitioner sought quash of the said FIR during the pendency of the investigation. As the Charge-sheet was filed, he got the prayer amended seeking quash of the said Charge-sheet also. 4. The petitioner, who is A-1 sought quash of the said criminal proceedings on the ground that he made his efforts to evict A-2 and he got issued a legal notice dated 19.12.2018 to her for eviction and she did not vacate the house. The learned counsel for the petitioner contends that as the petitioner/A-1 now has no title to the said house, that he cannot file any suit for eviction and the efforts made by him by way issuing the legal notice did not fructify and as such, he could not deliver the vacant possession to the complainant. He vehemently contends that there is no element of cheating involved in the transaction and no criminal liability can be fastened against the petitioner. He also contends that A-1 has also lodged report against A-2 on 15.12.2020 and the same was not registered by the police. So, as he made his efforts for eviction and as A-2 is not vacating the same, that he cannot be made liable for any criminal prosecution in the facts and circumstances of the case and he would contend that continuation of criminal proceedings against him in the facts and circumstances of the case amount to abuse of process of Court. So on the aforesaid ground, he sought for quash of the criminal proceedings launched against him. 5. The learned counsel for the second respondent-de facto complainant contends that when the petitioner has assured the de facto complainant that he would evict the A-2 from the house and deliver possession of the house to her, and when he failed to fulfill the said promise that it amounts to cheating the de facto complainant and a case under Section 420 IPC is made out. So, he would contend that prosecuting the petitioner for the said offence would not amount to abuse of process of Court and thereby, prayed for dismissal of this application. 6. So, he would contend that prosecuting the petitioner for the said offence would not amount to abuse of process of Court and thereby, prayed for dismissal of this application. 6. The learned Additional Public Prosecutor almost reiterated the submissions made by the learned counsel for the second respondent and would contend that it is not a fit case for quash of the criminal proceedings and thereby, prayed for dismissal of the application. 7. Material facts of the case are absolutely not in dispute. Admittedly, A-2 is the original owner of the house in question. The petitioner, who is A-1, purchased the house from her on 26.10.2016. As A-2 has no shelter, on her request, the petitioner permitted her to live in the said house as per the Live and Licence Document executed by the petitioner on 12.04.2017 in her favour. Therefore, the A-2 has been residing in the said house as a licencee by virtue of the said Live and Licence Document dated 12.04.2017. It is a fact that while A-2 has been residing in the said house as a licencee, the petitioner has sold away the said house to the de facto complainant on 09.11.2017. It is significant to note here that knowing fully well that the A-2 has been residing in the said house, the de facto complainant has purchased the said house from the petitioner as per the registered Sale Deed dated 09.11.2017. It is not as though that she was not aware of the fact that the A-2 has been residing in the said house. So, it is not a case where the petitioner has suppressed the fact that the A-2 has been residing in the said house and sold the said house to the de facto complainant. In fact, the de facto complainant is fully away of the said fact. 7.1 Although, the petitioner has assured the de facto complainant at the time of selling the said house that he would she that she is evicted from the said house, the facts and circumstances of the case show that the petitioner has, in fact, made his best efforts to evict A-2 from the said house. Admittedly, he has given legal notice dated 19.12.2018 to A-2 to vacate the said house. She did not respond to the said notice and did not vacate the house. Admittedly, he has given legal notice dated 19.12.2018 to A-2 to vacate the said house. She did not respond to the said notice and did not vacate the house. Thereafter, the petitioner has also lodged the report against the A-2 with the police on 15.12.2020 but the police did not take any action on the said report. Therefore, these facts clearly show that the petitioner made his efforts to fulfill his promise as per the assurance given by him to evict A-2 from the house. The petitioner cannot now file any suit for eviction of A-2 as he has no title to the said house at present as the title now is vested with the de facto complainant. Therefore, in the said facts and circumstances of the case, this Court finds no element of cheating to fasten any criminal liability against the petitioner in the given facts and circumstances of the case. Every act of failure of fulfilling the promise or assurance by itself will not constitute an offence of cheating. When the petitioner made his efforts to evict A-2 from the house by way of issuing the legal notice and also by lodging the report with the Police, it cannot be said that he had any intention of cheating the de facto complainant or that he has cheated her. As the title now is vested with the de facto complainant in respect of the said house, he can as well file the suit for eviction against A-2. 7.2 Therefore, in the facts and circumstances of the case, as no offence of cheating is made out against the petitioner or there has been any element of cheating in the transaction, this Court is of the considered view that allowing the criminal proceedings to be continued against the petitioner who is the A-1 would amount to abuse of process of Court. 8. Resultantly, the application is allowed. The criminal proceedings launched against the petitioner alone, who is A-1 in FIR being C.R. No. 11210012201475, registered with Chowk Bazaar Police Station, Surat City, and Criminal Case No. 23464 of 2021 on the file of 8th Additional Civil Judge and Additional Chief Judicial Magistrate First Class, Surat are hereby quashed. 8. Resultantly, the application is allowed. The criminal proceedings launched against the petitioner alone, who is A-1 in FIR being C.R. No. 11210012201475, registered with Chowk Bazaar Police Station, Surat City, and Criminal Case No. 23464 of 2021 on the file of 8th Additional Civil Judge and Additional Chief Judicial Magistrate First Class, Surat are hereby quashed. However, the criminal proceedings against other accused, who are A-2 and A-3 shall continue in the trial Court and the law has to take its own course in respect of the case pending against them. Rule is made absolute accordingly. 8.1 As the main application is allowed, connected application does not survive. The same stands disposed of, accordingly.