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2024 DIGILAW 696 (MP)

Ajay Vikram Singh v. State of M. P.

2024-11-07

SANJAY DWIVEDI

body2024
ORDER 1. Petitioner has filed this petition under section 482 of the Code of Criminal Procedure for quashing the Crime No. 40/2022 registered at Police Station Amahiya, District Rewa under section 420/34 of the Indian Penal Code in pursuance to registration of FIR on 31.1.2022. 2. The facts leading to the case are that a written complaint was made to the police by the complainant namely, Seema Agrawal stating therein that on 2.9.2020 her husband got arrested in Chhattisgarh due to politically motivated reasons and thus he has been arrested in other numerous cases also. It has been stated by the complainant that her husband advised her to contact one Fareed so as to settle down all the cases which have been registered against him. The complainant thereafter took help of her brother namely, Dr. Ravi Agrawal and they approached Fareed, who asked them to visit Delhi for further conversation. After reaching Delhi, Fareed took them to a higher rank officer of Doordarshan namely, Ajay Vikram Singh (present petitioner), who then fixed the deal for engaging good lawyer from Delhi. The said deal was fixed for a consideration of Rs. 1.5 crore for settling down all the cases registered against the husband of the complainant. Thereafter, Fareed was in continuous touch with the complainant and asking her to pay the amount as per deal, whereupon she paid a huge amount of Rs. 2 crore to Fareed. Afterwards, Fareed had arranged a meeting with one Pintu @ Sandeep Tiwari, who was also claiming himself to be a Congress leader and had given assurance for settling all the cases of the husband of complainant, but, when nothing was done, the complainant demanded her money back, upon which Fareed informed the complainant that he had paid Rs. 50 lakhs to the present petitioner and Rs. 1.5 crore to Pintu and only kept Rs. 20 lakhs with him, but nobody returned the money and consequently complainant suffered the loss and filed the complaint. 3. Although the bail application moved by the present petitioner was allowed by the Court considering the fact that it was the complainant who herself approached the accused persons and requested them to do such thing, which in fact cannot be legally acceptable. 4. 3. Although the bail application moved by the present petitioner was allowed by the Court considering the fact that it was the complainant who herself approached the accused persons and requested them to do such thing, which in fact cannot be legally acceptable. 4. Learned counsel for the petitioner has submitted that if at all the facts narrated by the complainant are considered to be true on their face value, even then no case under section 420 of IPC is made out against the petitioner. As per the learned counsel, complainant herself had approached one of the co-accused to settle the cases of her husband and the offences registered in various Districts of Chhattisgarh. He has also submitted that the offence under section 420 of IPC is made out only when there is any dishonest inducement from the very inception of contract, but, here in this case, the petitioner did not approach the complainant and it was the complainant who herself had contacted the petitioner and asked for his help. He has submitted that there is nothing on record to indicate that from the very inception the petitioner was committing fraud or did any cheating with the complainant. He has submitted that it is a settled principle of law that any contract, which itself is contrary to law, and an agreement for carrying out such illegal act is executed, as per section 23 of the India Contract Act, 1872 such agreement is illegal and parties cannot compel to enforce the same and therefore, according to learned counsel for the petitioner, the impugned FIR deserves to be quashed in view of the yardstick laid down by the Supreme Court in the case of State of Haryana v. Bhajan Lal and others reported in (1992) Supp. Part 1 SCC 355. 5. Per contra, learned senior counsel appearing for the respondent has very categorically submitted that the fraud was very much existing from the very inception of the contract because after assuring to settle the cases registered against the husband of the complainant, no attempt was made and nothing was shown to have been done in pursuance to the said contract. 5. Per contra, learned senior counsel appearing for the respondent has very categorically submitted that the fraud was very much existing from the very inception of the contract because after assuring to settle the cases registered against the husband of the complainant, no attempt was made and nothing was shown to have been done in pursuance to the said contract. The petitioner has not stated that after receiving the money he has made any attempt to settle the cases registered against the husband of the complainant and even after receiving the huge amount, not proceeding further for execution of the contract would amount to a fraud and it makes it clear that at the time of inducement, the intention of fraud was very much existing. He has submitted that it will be decided during course of trial whether at the time of execution of contract the elements of cheating and fraud were existing or not. He has submitted that the petitioner is contesting the trial and at this stage this Court cannot conduct a mini trial in the matter. He has placed reliance upon a decision rendered in the case of Central Bureau of Investigation v. Aryan Singh reported in AIR 2023 SC 1987 . 6. Considering the submission made by the learned counsel for the parties and after perusal of record, it is clear that the alleged amount was paid by the complainant to the accused persons namely Fareed, Ajay Vikram Singh, Sandeep Tiwari and Ram Arya Pathak and they had assured the complainant and her brother that they would make all efforts to get her husband out from the jail and they had also informed that they had good connection with some of the high profile persons and they would definitely help the complainant to get her husband out from the existing adverse situation. The present petitioner had informed the complainant that they had contacted so many persons to provide legal assistance to her husband, but that did not yield any result. 7. The present petitioner had informed the complainant that they had contacted so many persons to provide legal assistance to her husband, but that did not yield any result. 7. The only question emerges to be adjudicated before this Court is as to whether the contract between the parties, if violated, the offence under section 420 of IPC is made out or not, because, according to the learned counsel for the petitioner, the said contract is barred under the law as per section 23 of the Indian Contract Act, 1872 (for brevity, hereinafter referred to as ‘Act, 1872’). 8. Although the learned counsel for the respondent has submitted that it will be seen at the time of trial whether the contract was illegal or not, however, from the record it is clear that the amount was received by the accused persons acceding to the request made by the complainant to settle down the cases registered against her husband, but they did nothing. In a case of similar nature i.e. Manju Devi v. The State of Bihar & others reported in (2017) SCC OnLine PAT 3664 a complaint was made by the complainant under section 156(3) of Cr.P.C. before the Magistrate, which was referred to the police and pursuant to which an offence was registered under sections 406, 409, 420, 504 and 506/34 of IPC against the accused persons. As per the allegation in the FIR, daughter of the complainant applied for the post of Shiksha Mitra. The complainant approached the accused persons for arranging the appointment pursuant to which the accused persons demanded Rs. 1,50,000/-. The complainant, after negotiation, agreed to pay Rs. 1,20,000/- and accordingly paid the said amount to the accused persons, but neither the daughter of complainant was appointed nor the amount was returned to the complainant. The police investigated the matter and submitted its report under section 173 of Cr.P.C. that the accusation of the accused was found to be false and recommended prosecution against the complainant, however, the trial court taking cognizance of the offences under sections 406 and 420 of the IPC directed the accused persons to face the trial. After that, the accused persons filed a petition under section 482 of Cr.P.C. seeking quashing of the order passed by the trial court directing accused persons to face the trial. After that, the accused persons filed a petition under section 482 of Cr.P.C. seeking quashing of the order passed by the trial court directing accused persons to face the trial. The High Court finally quashed the criminal case on the ground that as per section 23 of the Indian Contract Act, 1872 it was against the public policy and as such the said contract was illegal and cannot be enforced, and, on the contrary, the Court observed that the complainant himself is liable for prosecution because he had tried to obtain appointment by paying illegal gratification to the accused persons. The High Court in the said case has observed as under: “3. Allegation in the FIR is that the daughter of the informant, namely, Kumari Gunja, who was differently abled and was having qualification of B.A.(Hons.) in the subject of Psychology, had applied for appointment on the post of Shiksha Mitra. The accused persons demanded Rs. 1,50,000/- for her appointment. The informant agreed to negotiate with them and persuaded them to appoint her daughter on the payment of Rs. 1,20,000/-. At the request of the informant, they visited his house on 9.11.2008 and received Rs. 1,20,000/- from him but neither the informant's daughter was appointed nor the amount taken by them was returned to him. 13. In the background of the facts stated in the FIR, I am of the view that it is neither a case of misappropriation done in a dishonest manner contrary to the terms of the obligation which it created nor a case of dishonest inducement to deliver any property or allow any person to retain any property rather it is case where the informant had made an offer to pay illegal gratification for procurement of job which allegedly was accepted by the accused persons pursuant to which certain payment is alleged to have been made. 15. Section 23 of the Indian Contract Act enumerates of three issues, i.e., consideration for the agreement, the object of the agreement and the agreement per se. Section 23 creates a limitation on the freedom of a person in relation to entering into contracts and subjects the rights of such person to the overriding considerations of public policy and others enunciated under it. 16. Section 24 of the Indian Contract Act prescribes that if considerations and objects of agreement are forbidden by law, the same would be void. 17. 16. Section 24 of the Indian Contract Act prescribes that if considerations and objects of agreement are forbidden by law, the same would be void. 17. In Chelloor Mankkkal Narayan, Ittirvi Nambudiri v. State of Travancore-Cochin 1 the Hon'be Supreme Court in para 21 held as under: “21. The other point that requires consideration is, whether on the prosecution evidence as it stands, the accused can be held guilty of criminal breach of trust? As laid down in section 385, Cochin Penal Code, (corresponding to section 405. Penal Code, 1860) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In the case before us, it is not disputed that if the sum of Rs. 23,100 was paid by P.W. 1 to the appellant by way of illegal gratification to induce the latter to make an allotment of cloth in his favour, there could be no question of entrustment in such payment. The payee would then receive the money on his own behalf and not on behalf of or in trust for anybody else. The criminality of an act of this character would consist in illegal receipt of the money and the question of subsequent misappropriation or conversion of the same would not arise at all.” 18. It is trite law that one who knowingly enters into the contract with improper object cannot enforce his rights in relation to such contract. The criminality of an act of this character would consist in illegal receipt of the money and the question of subsequent misappropriation or conversion of the same would not arise at all.” 18. It is trite law that one who knowingly enters into the contract with improper object cannot enforce his rights in relation to such contract. If the allegations made in the complaint are to be accepted, in the opinion of this Court, the complainant himself is liable to prosecution under the Prevention of Corruption Act for abetting a public servant to receive illegal gratification. 19. In Vijay Sharma v. State of Bihar,2 this Court had held that agreement to secure appointment by unfair means itself being unlawful and prohibited under the law is void ab initio. It further held that there cannot be any entrustment of a property for use and disposal contrary to law. It further held that concept of “cheating” shall have no application where the act which is stated to constitute “cheating” was itself an offence. 20. Considering the totality of the facts and circumstances of the case, this Court is of the opinion that allowing the prosecution to continue would be an abuse of the process of the Court. Accordingly, impugned order dated 13.6.2011 passed by the learned Sub-Divisional Judicial Magistrate, Sikrahana at Motihari and all the proceedings arising out of Phenhara P.S. Case No. 15 of 2009 are hereby quashed. The application stands allowed.” 9. Further in case of Vesa Holdings Private Limited and another v. State of Kerala and others reported in (2015) 8 SCC 293 the Supreme Court observed that every breach of contract would not give rise to an offence of cheating and only in those cases the breach of contract would amount to cheating where there was any deception played from the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. 10. Learned counsel for the petitioner had put trust upon his submission that in the present case no material is available on record indicating that from the very inception the elements of cheating are existing and in absence of any such material and allegation, the case of section 420 of IPC is not made out. 10. Learned counsel for the petitioner had put trust upon his submission that in the present case no material is available on record indicating that from the very inception the elements of cheating are existing and in absence of any such material and allegation, the case of section 420 of IPC is not made out. On the contrary, from the FIR it can be seen that the efforts were made by the accused persons so as to help the husband of the complainant and to bring him out from jail, but they failed to do so because, according to them, the matter was complicated and there were so many hurdles in it and they had also assured that they would refund the amount. As such, it is clear that the elements of cheating and fraud were not present from the very inception and therefore no offence under section 420 of IPC is made out against the petitioner. 11. Although learned counsel for the respondent/complainant has submitted the nature of contract and whether it is lawful or unlawful is not very material, but it is material that even after taking money by the accused persons, they did nothing in pursuance to the assurance given by them to the complainant and therefore offence under section 420 of IPC is made out against them and, at this stage, this Court cannot consider all these aspect because at this time the Court cannot conduct a mini trial in the matter and it will be proved only during the trial. He has placed reliance upon a judgment rendered in the case of Aryan Singh etc. (supra) in which the Supreme Court has observed as under:- “4. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under section 482 Cr. P.C. and/or in exercise of the powers under Article 226 of the Constitution of India. 4.1. P.C. and/or in exercise of the powers under Article 226 of the Constitution of India. 4.1. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under section 482 Cr. P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 4.2. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 5. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 5. In view of the above and for the reasons stated above, when the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings and applying the law laid down by this Court in catena of decisions on exercise of the powers at the stage of discharge and/or quashing the criminal proceedings, the impugned common judgment and order passed by the High Court quashing the criminal proceedings against the accused is unsustainable and the same deserves to be quashed and set aside. 5.1. In view of the above and for the reasons stated above, present appeals succeed. The impugned common judgment and order passed by the High Court quashing and setting aside the criminal proceedings against the accused Aryan Singh and Gautam Cheema is/are quashed and set aside. The accused to face the trial for which they are chargesheeted. However, it is observed that all the contentions and defences, which are available to the respective parties are kept open, to be considered by the learned Trial Court during the trial.” 12. On analyzing the quintessence of the submissions made by both the parties, for reaching to a concrete decision, it would be pertinent to consider the provisions of law involved in the case. 13. From the provision of section 420 of IPC and the language used therein, it is clear that in every offence of section 420 IPC there must be two parties; one who cheats and other who gets deceived. As per the requirement of this section, for constituting the offence under section 420 IPC, it is required that a person dishonestly induces the person deceived to deliver any property to any person with an intention to cheat the person deceived. For the purpose of clarity, it is apt to quot section 420 IPC, which is as under:- “420. As per the requirement of this section, for constituting the offence under section 420 IPC, it is required that a person dishonestly induces the person deceived to deliver any property to any person with an intention to cheat the person deceived. For the purpose of clarity, it is apt to quot section 420 IPC, which is as under:- “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.” 14. Cheating in its complete sense is defined and illustrated in section 415 of IPC., which is also necessary for examining the ingredients of cheating and as such it is also quoted as under:- “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”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 15. Thus, in totality, from the aforesaid provision, it is clear that in an offence of cheating, a person with a dishonest intention induces other person to deceive him. However, in the present case, the situation is otherwise to that of the said provision because, indisputably the complainant herself had approached the accused; given him proposal for doing a particular thing and thereafter also gave a huge amount, which otherwise, in view of section 23 of the Act, 1872 is against the public olicy and as per section 23 of the Act, the said contract is not enforceable under the law. For the purpose of clarity, section 23 of the Act,1872 is reproduced hereunder: “23. For the purpose of clarity, section 23 of the Act,1872 is reproduced hereunder: “23. What considerations and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— it is forbidden by law ; or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” 16. In the present case from the offer given by the complainant to the accused persons, it is evidently clear that the act, which was sought to have been done by the accused persons, was against the public policy because giving assurance by an individual, who is not related to the legal field or is not a judge, that the bail will be granted and offences would also not be registered in any of the cases is an unlawful assurance and as such it is against the public policy. 17. In re Bhajan Lal (supra), the Supreme Court has laid down the yardstick under which FIR can be quashed exercising power under section 482 Cr.P.C. Therefore, looking to the facts and circumstances of the case at hand, the observation made and the yardstick laid down by the Supreme Court in the said case are necessary to be quoted, which are as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 18. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 18. In view of the law laid down by the Supreme Court and also by the High Court on both sides in the cases referred hereinabove and also in view of the facts and circumstances of the case at Bar, I am of the opinion that when the complainant herself approached the accused persons offering them money for getting her husband out from the all the adverse situations, which he was facing, and the accused persons after trying to execute the said work, ultimately shown their helplessness and failed to do that, the offence under section 420 IPC is not made out against them; the prosecution launched against the petitioner was a malicious prosecution as the contents of FIR, if considered to be true on their face value, do not disclose commission of offence under section 420 of IPC and consequently the said proceedings deserve to be quashed. 19. In the result, this petition is allowed, consequent upon which the Crime No. 40/2022 registered at Police Station Amahiya, District Rewa under section 420/34 of the Indian Penal Code in pursuance to registration of FIR on 31.1.2022 against the petitioner and also further proceedings based upon the said crime are hereby quashed.