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2025 DIGILAW 90 (RAJ)

Nemaram v. State of Rajasthan

2025-01-13

FARJAND ALI

body2025
ORDER : 1. Heard learned counsel for the parties, gone through order under assail as well as the other relevant material as made available to this Court. 2. By way of filing instant petition a challenge has been made to the very lodging of the FIR No. 115/18, on the ground that even if the contents of the FIR are taken in its entirety or even on its face value or even it is not rebutted the same does not show cognizable offence rather it seems to be a dispute of predominately civil nature. I have minutely gone through the contents of the FIR and so also the other relevant material. 3. Indisputably the complainant in this regard had entered into an agreement for the sale of a piece of land with brother of the petitioner No.1 in the year 2013, it is the assertion of the complainant that after making an upfront amount, he had paid the entire amount of sale consideration to the brother of the petitioner No.1, however, he did not execute the sale deed in his favour which made him to lodge the FIR. It is further contended in the FIR that no payment was due with the vendor and therefore, he was supposed to execute the sale deed in favour of the complainant instead thereof he connived with his full blood brother and executed a sale deed in favour of his brother, who is petitioner herein, in the year2017. 4. The plea taken by learned counsel for the petitioner that at the best it may be the case of breach of condition of the agreement entered in between the complainant and brother of the petitioner and for which he should have filed a suit for specific performance of the contract, however, instead of doing so, he opted to lodge the FIR for mounting pressure upon the petitioner who has to do nothing with the transaction took place between the parties to the agreement. 5. There is a substance in the statement of the petitioner. The agreement of sale got executed in the year 2013 and upon asking whether any notice was given by the complainant to the vendor showing his willingness to execute the sale deed, the answer was in negative. 6. 5. There is a substance in the statement of the petitioner. The agreement of sale got executed in the year 2013 and upon asking whether any notice was given by the complainant to the vendor showing his willingness to execute the sale deed, the answer was in negative. 6. Learned counsel for the respondent repeatedly insisted upon to take note of the fact that the sale consideration has been paid to the vendor much before making payment by the petitioner to the vendor and thus, the dishonest intention on the part of the vendor and the petitioner is very much evident. 7. I have carefully considered this issue. Notably, the record lacks any evidence demonstrating why the complainant, despite the alleged non-performance by the vendor (his brother-in-law) for approximately five years, did not take any remedial steps. The agreement was executed on 08.03.2013. If, as alleged, the complainant had indeed paid the entire sale consideration, there was no impediment to him promptly insisting upon the vendor to execute the sale deed. It is crucial to distinguish between a breach of contract and a breach of trust. While a breach of contract may give rise to a civil liability, criminal prosecution typically arises from a breach of trust. 8. A breach of trust and dishonest intention should be evident from the inception of the agreement. In a situation where the initial agreement is executed with bona fide intentions but a subsequent breach occurs, it cannot be automatically construed as a criminal offence. This case appears to fall squarely within the ambit of Ilustration (g) of Section 415 of the Indian Penal Code (IPC), which states: “A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.” This illustration highlights that a mere breach of contract, even if deliberate, does not necessarily constitute cheating under Section 415 IPC, which is a crucial element for establishing an offense under Section 420 IPC. Simple defrauding does not amount to cheating; there must be an element of dishonesty and deception. 9. To invoke the offence of Section 420 IPC (cheating and dishonestly inducing delivery of property), the prosecution must establish the essential elements of cheating as defined under Section 415 IPC. Section 415 IPC defines “cheating” as deceiving any person by any deception, with intent to defraud such person to deliver property. Mere defrauding, without the presence of dishonesty and an intention to deceive, does not constitute the offense of cheating. In the present case, while there may be allegations of breach of contract and potential civil liabilities, the prosecution has failed to demonstrate the presence of any deceitful act or intent to defraud the complainant at the time of the agreement. The evidence suggests that the vendor, at the time of entering into the agreement, may have intended to fulfill his obligations. However, the subsequent failure to execute the sale deed, while constituting a breach of contract, does not necessarily amount to cheating under Section 415 IPC. 10. Having meticulously examined the facts and circumstances of the case, the Court finds that the essential elements constituting the offences alleged in the FIR are conspicuously and manifestly absent. The allegations, upon scrutiny, do not reveal any evidence of criminal wrongdoing. Permitting the continuation of this FIR would not only be an unwarranted interference with the petitioner’s liberty but would also constitute a grave abuse of the judicial process. This Court cannot, in good conscience, allow such a miscarriage of justice to occur. 11. With respect to the invocation of Section 406 of the Indian Penal Code (IPC) (criminal breach of trust), it is fundamental to establish the existence of a trust relationship. This necessitates a demonstration that property was entrusted to the accused with the explicit or implicit understanding that it would be returned or used for a specific purpose. Furthermore, it must be shown that the accused, in violation of this trust, dishonestly misappropriated the property for their own use or otherwise acted contrary to the terms of the trust. In the present case, there is no evidence to suggest that the petitioner ever received any property from the complainant under such a trust. The alleged transaction pertains to the sale of land, where the complainant’s claim is primarily based on the alleged breach of a contractual agreement to execute a sale deed. In the present case, there is no evidence to suggest that the petitioner ever received any property from the complainant under such a trust. The alleged transaction pertains to the sale of land, where the complainant’s claim is primarily based on the alleged breach of a contractual agreement to execute a sale deed. This scenario does not fall within the ambit of Section 406 IPC, as the alleged breach, if any, arises from a contractual obligation rather than a breach of trust. 12. Sections 467 and 468 of the Indian Penal Code (IPC)pertain to the punishment for making a false document and forgery, respectively. The definitions of “making a false document” and “forgery” are provided in Sections 463 and 464 of the IPC. A careful examination of these definitions in conjunction with the allegations contained within the First Information Report (FIR) unequivocally demonstrates that neither the fabrication of a false document nor the act of forgery is discernible. It is crucial to emphasize that the complainant themselves have not asserted that any document was forged. The investigating officer’s conclusion that offences under Sections 463 and 467 of the IPC are established appears to be entirely baseless and devoid of any rational foundation. This conclusion is particularly egregious considering the complete absence of any such allegation regarding the creation of a false document within the FIR itself. Upon a thorough analysis from all perspectives, this Court finds no grounds to support the continuation of the FIR. The present case falls squarely within the ambit of the legal principles enunciated by the Hon’ble Supreme Court in the landmark judgment of State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors., AIR 1992 SC 604. It has unequivocally held that where a plain reading of the First Information Report (FIR) does not disclose the commission of a cognizable offence, the Court should not hesitate to quash the FIR. Furthermore, when the allegations appear to be frivolous, vexatious, and inherently improbable, the High Court should not hesitate to quash the FIR. This principle is firmly rooted in the doctrine of inherent powers of the Court to prevent abuse of the judicial process. The Court has a duty to ensure that its processes are not misused for extraneous purposes, such as harassment or undue pressure. 13. Accordingly ,the instant Criminal Misc. Petition is allowed. 14. This principle is firmly rooted in the doctrine of inherent powers of the Court to prevent abuse of the judicial process. The Court has a duty to ensure that its processes are not misused for extraneous purposes, such as harassment or undue pressure. 13. Accordingly ,the instant Criminal Misc. Petition is allowed. 14. In view of the discussion made above, I see no reason to allow continuation of FIR No.115/18, thus ,the instant Criminal Misc. Petiton deserves to be allowed. 15. Accordingly, the instant petition is hereby allowed. It is ordered that FIR No. 115/18 registered at Police Station Sojat Road, Pali and all proceedings initiated in consequence thereof are quashed and set aside qua the petitioner. The SHO, Sojat City, District Pali is directed to file the closure report in the Court concerned. However, nothing would preclude the parties to take proper steps in regard to breach of their civil liabilities. 16. The stay petition stand disposed of.