Rajasthan High Court - Jodhpur
Munnu Khan vs State & Anr on 25 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1956 / 2017
Munnu Khan S/o Mohammed Mustafa Khan Pathan, Aged About 55
Years, B/c Musalman, R/o Mohammedi Colony, Shastri Nagar,
Bhilwara. (Raj.)
----Petitioner
Versus
1. The State of Rajasthan.
2. Manoj Kumar S/o Shri Ranveer Singh, Aged About 52 Years, B/c
Jain, R/o Bapu Nagar, Senti, Chhitorgarh (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Deepak Menaria, for Mr. NK Gurjar
For Respondent(s) : Mr. VS Rajpurohit, PP
Mr. AP Singh for Mr. SS Sisodia, for the
complainant
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 25/08/2017
1. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. agaisnt the order dated 27.04.2017 pased by learned ADJ. No.1, Chittorgarh in criminal revision No.15/2015 (CIS No.409/2015) filed by the petitioner against the order dated 10.10.2013 passe by learned ACJM No.1, Chittorgarh by which learned Magistrate, accepted the protest petition filed by the respondents NO.2 in final report No.197/2011 in the matter of FIR No.550/2011 P.S. Kotwali, Chittorgarh and took cognizance against the petitioner to set aside.
2. The complainant filed a complaint registered under Section 420, 120-B of IPC with the allegation that the complainant (2 of 13) [CRLMP-1956/2017] purchased a house No.46 situated at I.G.B. Yojna, Segwa Housing Board, Senti, Chittorgarh from the accused. The house was allotted to the accused by Rajasthan Aawasan Mandal Chittorgarh and consideration was decided between the parties Rs.5,01,000/-
and at the time of agreement Rs.1,00,000/- was paid. The remaining amount was to be paid on 30.10.2008. On 23.10.2008 complainant paid Rs.10,000/- and out of remaining amount of Rs.3,91,000/- but since the NOC was not granted in favour of the Munnu Khan by the Rajasthan Aawasan mandal . The agreement was mutually extend orally.
3. The present petitioner though did not get the allotment letter but handed over the possession of the said house to the accused persons. At a subsequent stage, Monnu Khan sold out his plot to third party Aslam Khan which caused the grievance to the present respondent. The petitioner had in fact sent a legal notice on 14.04.2009 and sought the remaining payment of consideration and when the complainant failed to make such payment, the agreement was sought to be terminated by the petitioner. The reply was filed by the complainant on 25.04.2009.
4. Learned counsel for the petitioner has stated that the condition of the agreement were not adhered by the respondent No.2 and therefore, the agreement stood nullified and thereafter he entered into another transaction. The negative final report was proposed by the police on account of facts being of civil nature but cognizance was taken on protest petition. Learned counsel for the petitioner has further stated that learned courts below have not appreciated that the respondents makes allegation of breach of (3 of 13) [CRLMP-1956/2017] agreement and thus, for that respondent had a remedy of filing suit for recovery of amount and compensation breach of agreement.
5. Learned counsel for the petitioner has relied upon the judgment of Smt. Clarish Sunita Sterling & Anr. Vs. Smt. Sushila & Anr., S.B. Criminal Misc. Petition No.634/2015 decided on 26.07.2017, which reads as follows :-
" 1. The petitioner has preferred this misc. petition under Section 482 Cr.P.C. against the order dated 10.11.2014 passed by Shri Hari Om Sharma Atri, R.H.J.S. learned Additional Sessions Judge No.1, Udaipur, in Criminal Revision Petition No.3/2012, by which he dismissed the revision and uphold the order dated 6.08.2011, passed by learned Judicial Magistrate (south) No.2, Udaipur, in regular criminal case No.320/2011, whereby the cognizance taken against the petitioners and they were summoned through warrant of arrest.
2. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by this Court in Amit Kumar Choudhary Vs. State of Rajasthan (Criminal misc. Petition No. 3278/2016) decided on 6.07.2017.
3. This Court on 6.07.2017 has passed the following order in Amit Kumar Choudhary Vs. State of Rajasthan (Supra):-
"1. The petitioner has preferred this misc. petition under Section 482 Cr.P.C. for quashing the FIR and its entire subsequent investigation in FIR No.492/16 dated 3.10.2016 Police Station Suratgarh City, for offence u/s 420 IPC.
2. The brief facts as noted by this Court are that the complainant has filed a complaint which was (4 of 13) [CRLMP-1956/2017] registered as FIR No.492/16. The agreement of sale which is on record was entered between the petitioner and complainant on 19.02.2016. As per the agreement to sale the accused petitioner has received Rs.9 lakhs against the sale and remaining Rs.3 lakhs were to be paid at the time of registration of the sale deed. It was agreed in the agreement that registry shall be made on 15.02.2017. Further, it was also stated in the agreement that at the time of registry, the petitioner shall bring all no due certificates pertaining to any liability upon the property concerned. Both these facts are clearly reflected in the agreement which is annexed along with the petition. The complainant however, without waiting for the due date when the no dues certificate along with necessary formalities were completed i.e. 15.02.2017 filed and FIR dated 3.10.2016. On the bare perusal of the FIR, the allegation is that the agreement was full of mis- representation as the petitioner has not shown the fact of the property being leased and such concealment resulted in the present FIR.
3. The counsel for the petitioner has relied upon the precedent law in the case of Murari Lal Gupta Vs. Gopi Singh reported in (2005)13 SSC page-699. The relevant portion of the judgment reads as follows:-
"6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Session Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner (5 of 13) [CRLMP-1956/2017] are wholly unwarranted. The complain is an abuse of the process of the Court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Indian Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the Respondent parted with money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely, because an agreement to sell was entered into which agreement to petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 of the Indian Penal code is made out even prima facie. The complaint filed the respondent and too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent.
7. The petition is allowed. The complaint filed by the Respondent in the Court of Judicial Magistrate First Class, Madhepura and registered as Complaint No.120-C/2000 is directed to be quashed. Needless to say, the Respondent is at liberty to pursue such other remedy under the civil law as may be available to him."
4. Counsel for the petitioner has also relied upon the judgment by this Court in S.B. Criminal Misc.
(6 of 13) [CRLMP-1956/2017] Petition No.464/2012 in the matter of Siddharth Vs. State of Rajasthan & Anr. decided on 17.08.2012. The relevant portion of the judgment reads as follows:-
"Having considered the arguments advanced at the bar and after going through the FIR impugned as well as the statement of the complainant, it is apparent that the agreement, which was entered into between the parties prescribed a specific date i.e. 15.11.2007 and thereafter 15.1.2008 before which the complainant was to make the payment of the balance amount towards the sale. The complainant in his FIR or his statement recorded under Section 161 Cr.P.C. has not made any averment that he offered to make the remaining payment to the accused and despite that, the accused did not execute the registered sale deed in favour of the complainant. Even if the said allegation had been made, then also, the remedy for the complainant would have been to file a suit for specific performance. The subsequent sale by the petitioner has been made on 29.11.2010 i.e. nearly 2½ years after the term prescribed in the agreement between the petitioner and the complainant lapsed.
In view of the aforesaid facts, this Court is of the opinion that none of the ingredients of the offences under Sections 406 and 420 IPC are made out from the FIR impugned and the investigation carried out thus far.
Accordingly, the misc. petition succeeds and is allowed. The FIR impugned and all proceedings subsequent thereto are hereby quashed.
(7 of 13) [CRLMP-1956/2017] Stay petition is also disposed of."
5. Counsel for the respondent has harped upon the concealment of the fact that property was on lease by the petitioner at the time of registered agreement.
6. After hearing the counsel and perusing the material on record of the case as well as the precedent law, this Court is of the opinion that the facts of the case clearly point out that the parties were having a registered agreement and non-compliance of the same has resulted into this FIR. Thus, the nature of the dispute in this case is of purely civil nature and also a case of under specific performance is already pending before the competent Court. Moreover, as per the agreement itself, the petitioner was to give the no dues at the time of registered sale deed as stipulated to be executed on 15.02.2017, wheres the FIR has been lodged on earlier date i.e. 3.10.2016.
7. Thus in the aforesaid circumstances, the misc. petition succeeds and deserves to be allowed and the FIR No.492/16 dated 3.10.2016 Police Station Suratgarh City are hereby quashed. The stay petition also disposed of."
4. On the bare reading of the record of the case, the total complaint is that an agreement executed between the petitioners and complainant husband on 13.06.2008 for the sale of flat situated at Divya Jyoti Apartment, New Bhupalpura, Udaipur in view of certain consideration was made. The petitioners refused to get the sale deed registered and subsequently, the petitioner sold the flat to Smt. Sushma on 26.11.2008. The police submitted a (8 of 13) [CRLMP-1956/2017] negative final report but the learned court below took the cognizance but merely on taken grounds without realizing that the overall allegation did not travel beyond a civil transaction having failed between the parties arising out of an agreement to sale.
4. Thus, in the aforesaid circumstances, the misc. petition succeeds and deserves to be allowed and the impugned order dated 6.08.2011 and 10.11.2014 passed by learned Judicial Magistrate (South) No.2, Udaipur and learned addl. Sessions Judge No.1, Udaipur is quashed and set aside. The stay petition also disposed of."
6. Learned counsel for the petitioner has relied upon the judgment of Amit Kumar Choudhary Vs. State of Rajasthan & Anr. in S.B. Criminal Misc. Petition No.3278/2016 decided on 06.07.2017, which reads as follows :-
" 1. The petitioner has preferred this misc. petition under Section 482 Cr.P.C. for quashing the FIR and its entire subsequent investigation in FIR No.492/16 dated 3.10.2016 Police Station Suratgarh City, for offence u/s 420 IPC.
2. The brief facts as noted by this Court are that the complainant has filed a complaint which was registered as FIR No.492/16. The agreement of sale which is on record was entered between the petitioner and complainant on 19.02.2016. As per the agreement to sale the accused petitioner has received Rs.9 lakhs against the sale and remaining Rs.3 lakhs were to be paid at the time of registration of the sale deed. It was agreed in the agreement that registry shall be made on 15.02.2017. Further, it was also stated in the agreement that at the time of registry, the petitioner (9 of 13) [CRLMP-1956/2017] shall bring all no due certificates pertaining to any liability upon the property concerned. Both these facts are clearly reflected in the agreement which is annexed along with the petition. The complainant however, without waiting for the due date when the no dues certificate along with necessary formalities were completed i.e. 15.02.2017 filed and FIR dated 3.10.2016. On the bare perusal of the FIR, the allegation is that the agreement was full of mis- representation as the petitioner has not shown the fact of the property being leased and such concealment resulted in the present FIR.
3. The counsel for the petitioner has relied upon the precedent law in the case of Murari Lal Gupta Vs. Gopi Singh reported in (2005)13 SSC page-699. The relevant portion of the judgment reads as follows:-
"6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Session Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complain is an abuse of the process of the Court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Indian Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the Respondent parted with money. It is (10 of 13) [CRLMP-1956/2017] not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely, because an agreement to sell was entered into which agreement to petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 of the Indian Penal code is made out even prima facie. The complaint filed the respondent and too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent.
7.The petition is allowed. The complaint filed by the Respondent in the Court of Judicial Magistrate First Class, Madhepura and registered as Complaint No.120-C/2000 is directed to be quashed. Needless to say, the Respondent is at liberty to pursue such other remedy under the civil law as may be available to him."
4. Counsel for the petitioner has also relied upon the judgment by this Court in S.B. Criminal Misc. Petition No.464/2012 in the matter of Siddharth Vs. State of Rajasthan & Anr. decided on 17.08.2012. The relevant portion of the judgment reads as follows:-
"Having considered the arguments advanced at the bar and after going through the FIR impugned as well as the statement of the complainant, it is apparent that the agreement, which was entered into between the parties prescribed a specific date i.e. 15.11.2007 and thereafter 15.1.2008 before which the complainant was to make the payment of the (11 of 13) [CRLMP-1956/2017] balance amount towards the sale. The complainant in his FIR or his statement recorded under Section 161 Cr.P.C. has not made any averment that he offered to make the remaining payment to the accused and despite that, the accused did not execute the registered sale deed in favour of the complainant. Even if the said allegation had been made, then also, the remedy for the complainant would have been to file a suit for specific performance. The subsequent sale by the petitioner has been made on 29.11.2010 i.e. nearly 2½ years after the term prescribed in the agreement between the petitioner and the complainant lapsed.
In view of the aforesaid facts, this Court is of the opinion that none of the ingredients of the offences under Sections 406 and 420 IPC are made out from the FIR impugned and the investigation carried out thus far.
Accordingly, the misc. petition succeeds and is allowed. The FIR impugned and all proceedings subsequent thereto are hereby quashed.
Stay petition is also disposed of."
5. Counsel for the respondent has harped upon the concealment of the fact that property was on lease by the petitioner at the time of registered agreement.
6. After hearing the counsel and perusing the material on record of the case as well as the precedent law, this Court is of the opinion that the facts of the case clearly point out that the parties were having a registered agreement and non- compliance of the same has resulted into this FIR. Thus, the nature of the dispute in this case is of (12 of 13) [CRLMP-1956/2017] purely civil nature and also a case of under specific performance is already pending before the competent Court. Moreover, as per the agreement itself, the petitioner was to give the no dues at the time of registered sale deed as stipulated to be executed on 15.02.2017, wheres the FIR has been lodged on earlier date i.e. 3.10.2016.
7. Thus in the aforesaid circumstances, the misc. petition succeeds and deserves to be allowed and the FIR No.492/16 dated 3.10.2016 Police Station Suratgarh City are hereby quashed. The stay petition also disposed of. "
7. Learned counsel for the respondent has vehemently opposed the submission of counsel for the petitioner and stated that fraudulent act of the petitioner was coming within the purview of the Section 420 of IPC.
8. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that on the face of it and agreement was executed between the petitioner and the complainant for the sale of the house on 21.08.2008. For purchase of house No.46 situated at IGB Yojna, Segwa Housing Board, Senti Chittorgarh, some consideration was also paid but in spite of that the petitioner refused to get the sale deed registered and sold the plot to one Mr. Aslam Khan on 30.03.2009. The police submitted a final negative report but the learned court below took cognizance merely on the ground that the allegations were correct and petitioner had a duty to return the payment as well as complete the transaction. The precedent law cited includes the precedent law of Murari lal Gupta Vs. Gopi singh reported in (2005) 13 (13 of 13) [CRLMP-1956/2017] SCC 699, and purport of the precedent law is clear that in the given circumstances, the present impugned order cannot be sustained.
9. Thus, in the aforesaid circumstances, the misc. petition is allowed and the impugned order dated 27.04.2017 passed by learned ADJ No.1, Chittorgarh in criminal revision No.15/2015 (CIS No.409/2015) and order dated 10.10.2013 passed by ACJM No.1, Chittorgarh are quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer