Himachal Pradesh High Court
Kehar Singh Khachi & Another vs State Of Himachal Pradesh & Another on 2 November, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No.313 of 2016
.
Reserved on: 29.10.2020
Date of Decision: November 2, 2020
Kehar Singh Khachi & another ...Petitioners.
Versus
State of Himachal Pradesh & another ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioners:
Mr. B.M. Chauhan, Advocate, with Mr.M.S.
Katoch, Advocate, through Video
Conferencing.
For the Respondent: Mr. Desh Raj Thakur, Additional Advocate
General, with M/s Raju Ram Rahi and
Gaurav Sharma, Deputy Advocate
Generals, for respondent No.1-State,
through Video Conferencing.
Mr. R.K. Bawa, Senior Advocate with
Mr.Ajay Kumar Sharma, Advocate, for
respondent No.2, through Video
Conferencing.
Vivek Singh Thakur, J.
Present petition has been preferred against impugned order dated 27.05.2016, passed by learned Additional Chief Judicial Magistrate (1), Shimla, H.P., in case titled as State vs. Kehar Singh Khachi, FIR No.341 of 2015, dated 21.12.2015, registered in Police Station, Sadar, Shimla, by respondent No.2-complainant, whereby learned Magistrate has taken cognizance under Section 173 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 2alleged commission of offence punishable under Section 420 read with Section 34 of the Indian Penal Code (in short 'IPC') and notices have been issued to the petitioners.
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2. Prosecution case, in brief, is that petitioners had shown a big vacant plot situated in Shimla to respondent No.2- complainant, available for sale and petitioner No.1 disclosed to respondent No.2 that the said land was owned by different persons and he was holding Power of Attorney of some of such owners and he had also shown General Power of Attorney(s) to respondent No.2- complainant, executed in his favour. As respondent No.2- complainant and her husband were interested to purchase a plot for construction of their residence, complainant, being persuaded by the size of vacant piece of land, readily agreed to buy the said plot and for purchasing the said plot an amount of `1,00,70,000/- was transferred by respondent No.2-complainant to petitioner No.1 during October 2008 to July 2011. During this period, some sale deeds were also executed through petitioner No.1, in favour of complainant for a land worth `70,00,000/-.
3. It is further case of the prosecution that petitioner No.1 had also executed a sale deed in favour of his son (petitioner No.2 herein) for sale consideration of `18,00,000/- with respect to a piece of land out of the vacant land shown to the complainant on 19.07.2011 and thereafter, when petitioner No.1 demanded more money for purchasing remaining land, respondent No.2-complainant had reminded him that total amount of `97,70,000/- had already been received by him and, therefore, no more money could be paid ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 3 to him, as only a sum of `70,00,000/- had been spent for purchasing four pieces of land.
4. It is further case of the prosecution that petitioners, .
instead of purchasing property in the name of complainant misappropriated her money and got executed sale deed in favour of petitioner No.2 knowing fully that entire piece was shown to respondent No.2-complainant and she was intending to purchase entire land and making payments to petitioner No.1 as per his demands. On the basis of record of the bank, it has come during investigation that respondent No.2-complainant had transferred a sum of `1,00,70,000/- in favour of petitioner No.1 either herself or by her husband or through her mother, through cheque(s)/online transaction/transfer. Consideration for the sale deed, executed in favour of respondent No.2-complainant, through petitioner No.1 was `70,00,000/- and a sum of `30,70,000/- was found to have been received in excess by petitioner No1. Retaining `30,70,000/- and execution of sale deed in favour of petitioner No.2, allegedly misappropriating money received from respondent No.2- complainant of a portion of a plot which was shown to respondent No.2-complainant, as per investigation, was found to be dishonest and fraudulent act committed by the petitioners attracting provisions of Section 420 read with Section 34 IPC and accordingly challan for commission of aforesaid offences has been submitted in the Court under Section 173(2) Cr.P.C., wherein on the basis of material on record, learned Magistrate has taken cognizance as stated supra.
::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 45. Taking cognizance of commission of offence by learned Magistrate has been assailed on the ground that entire transactions, in question, are based on alleged oral agreement which was never .
documented and no Khasra number(s) with specific area was/were ever agreed to be made available by the petitioners to respondent No.2-complainant for sale/purchase and petitioner No.1 was having General Power of Attorney of a few original owners and he had executed sale deeds on behalf of those owners in favour of respondent No.2-complainant and remaining owners had sold the land to petitioner No.2, wherein petitioner No.1 had no role and, therefore, no act of petitioners can be termed as dishonest or fraudulent act. It is further contended that respondent No.2- complainant has also filed a Civil Suit for recovery of the amount and pleadings in the Civil Suit are the same as the pleadings in the present petition. It is also contended that ingredients for commission of offence under Section 420 IPC i.e. inducement or deception at initial stage and dishonest and fraudulent behaviour on the part of the petitioners is missing in the complaint for want of evidence and, therefore, no case under Section 420 IPC is made out, but despite that learned Magistrate, in applying his mind in mechanical manner has taken cognizance in the case. Further that dispute between the parties is, at the most, a civil dispute for which appropriate remedy is Civil Suit, which has already been availed by respondent No.2-complainant. Lastly, it is argued that present complaint has been lodged because of political vendetta to pressurize the petitioners in party affairs of mother of respondent ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 5 No.2-complainant, who happened to be a Cabinet Minister at the time of lodging the complaint.
6. Learned counsel for the petitioners referring .
pronouncements of the Apex Court in G. Sagar Suri and another vs. State of U.P. and others, (2000) 2 SCC 636M.N. Ojha and others vs. Alok Kumar Srivastav and another, (2009) 9 SCC 682; Gorige Pentaiah vs. State of Andhra Pradesh and others, (2008) 12 SCC 531; Parbatbhai Aahir alias Parbatbhat Bhimsinghbhai Karmur and others, (2017) 9 SCC 641; and Central Board of Trustees vs. Indore Composite Limited, (2018) 8 SCC 443, has contended that Magistrate has failed to perform its role as required under law, to be performed at Private the time of taking the cognizance and thus, it is a fit case for quashing FIR and criminal proceedings, exercising inherent powers by this Court under Section 482 Cr.P.C.
7. Learned counsel for the petitioners has also relied upon pronouncements of the Apex Court in Vir Prakash Sharma vs. Anil Kumar Agarwal and another, (2007) 7 SCC 373; V.Y. Jose and another vs. State of Gujarat and another, (2009) 3 SCC 78; and Vinod Natesan vs. State of Kerala and others, (2019) 2 SCC 401 , and submitted that for taking cognizance of commission of offence punishable under Section 420 IPC, essential ingredients for commission of such offence must be on record and in present case there is no evidence on record with respect to fraudulent or dishonest act on the part of petitioners so as to induce or deceive respondent No.2-complainant or intentionally induce her to do or omit to do anything which she would not have done or omitted if ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 6 were not deceived and which act or commission causes or is likely to cause damage or harm to body, mind, reputation or property of respondent No.2-complainant.
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8. Lastly, it is contended on behalf of the petitioners that lodging of FIR and initiation of criminal proceedings against petitioners is a clear case of abuse of process and is contrary to the pronouncements of the Apex Court in Gorige Pentaiah's case supra and Chandran Ratnaswami vs. K.C. Palanisamy and others, (2013) 6 SCC 740.
9. Reliance on behalf of the petitioners has also been put on pronouncements of the Apex Court passed in Cr.Appeal No.1395 of 2018, titled as Anand Kumar Mohatta and another vs. State (Govt. of NCT of Delhi, decided on 15.11.2018 and Cr.Appeal No.238 of 2019, titled as Prof. R.K. Vijayasarathy & another vs. Sudha Seetharam & another, decided on 15.02.2019.
10. Learned counsel appearing for respondent No.2- complainant has submitted that there is overwhelming evidence on record to prima-facie reflect that the omission and commission on the part of the petitioners was dishonest and preplanned, whereby they fraudulently induced respondent No.2-complainant to deliver amount to purchase a property and after receiving money utilized some part thereof for benefit of respondent No.2-complainant but misappropriated another part of the amount to purchase a plot in favour of petitioner No.2, son of petitioner No.1 that too out of the plot shown to respondent No.2-complainant. It is also contended that a handsome amount of more than `30,00,000/- has been ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 7 retained and misappropriated by petitioners in their favour as land for worth of `70,00,000/- only had been transferred in favour of respondent No.2-complainant after receiving `1,00,70,000/-.
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11. Referring pronouncements of the Apex Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp.
(1) SCC 335; Sunita Jain vs. Pawan Kumar Jain and others, (2008) 2 SCC 705; Som Mittal vs. Government of Karnataka, (2008) 3 SCC 574; Rajiv Thapar and others vs. Madan Lal Kapoor, (2013) 3 SCC 330; Sesami Chemicals Private Limited vs. State of Meghalaya and others (2014) 16 SCC 711;
Taramani Parakh vs. State of Madhya Pradesh and others, (2015) 11 SCC 260; Kamlesh Kumari and others vs. State of Uttar Pradesh and another, (2015) 13 SCC 689; and Amanullah and another vs. State of Bihar and others, (2016) 6 SCC 699 , it is contended that for quashing of FIR, inherent powers under Section 482 Cr.P.C., should only be used either to prevent abuse of the process of any Court or otherwise to secure the ends of justice in rarest of rare cases, where no prima facie case is constituted or made out against the accused. It is also canvassed that act of petitioners subsequent to receiving huge amount from respondent No.2-complainant, by not utilizing entire amount for benefit of respondent No.2-complainant and using a sum of `18,00,000/- for purchase of a plot in favour of petitioner No.2, unambiguously establishes the preplanned dishonest intention of petitioners to defraud respondent No.2-complainant.
12. Petition has also been opposed on behalf of respondent No.1-State, on the ground that Investigating Agency has conducted ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 8 impartial inquiry and thereafter on the basis of evidence collected, has filed challan in the Court and further that filing of the Civil Suit for recovery is not the ground for quashing a criminal case.
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13. Referring pronouncements of the Apex Court passed in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others, (1983) 1 SCC 1; Hamida vs. Rashid alias Rasheed and others, (2008) 1 SCC 474; Amit Kapoor vs. Ramesh Chander and another, (2012) 9 SCC 460; and N. Soundaram vs. P.K. Pounraj and another, (2014) 10 SCC 616, it is contended that inherent power of the High Court under Section 482 Cr.P.C. shall be exercised only there where the allegations set out in the complaint or charge-sheet do not constitute any offence and as, in the present case, there is sufficient evidence to establish ingredients of commission of offence under Section 415 IPC punishable under Section 420 IPC, interference of High Court is not warranted.
14. There is no dispute with respect to ratio of law laid down by the Apex Court in the judgments referred by learned counsel for the parties. Inherent power of the High Court can be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice. The Apex Court in Rakhi Mishra vs. State of Bihar and others, (2017) 16 SCC 772 , referring Sonu Gupta vs. Deepak Gupta, (2015) 3 SCC 424 , has reiterated that it is a settled law that power under Section 482 Cr.P.C. for quashing of FIR is exercised by the High Court only in exceptional circumstances when even Prima-facie case is not made out against the accused. Test applied by the Court for interference ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 9 at the initial stage of a prosecution is whether the uncontroverted allegations prima-facie establish a case or not.
15. It is settled that at the time of taking cognizance of .
offence, it is not necessary for the Magistrate to find out as to whether trial is clearly going to culminate into conviction of accused or not, but the Magistrate has only to see whether there is prima-
facie evidence on record so as to construe that there is possibility of commission of offence by the accused and even if there is evidence raising suspicion of commission of offence by accused the cognizance can be taken by the Magistrate and thereafter the accused has a right to put his version before the Court on the basis of evidence on record at the time of framing of Charge.
16. Parameters to be taken into consideration by the Court at the time of framing of charge are altogether different than that to be taken into consideration at the time of taking cognizance. At the time of taking of cognizance, Magistrate has to look into that material only which is placed before him by the Prosecution/Investigating Agency, but at the time of consideration of charge Magistrate can take into consideration certain facts and documents pointed out and/or submitted by or on behalf of accused and thereafter he can take a decision as to whether there is sufficient material for framing of charge or not. Recently this Court in case Siemens Enterprise Communications Pvt.. Ltd. now known as Progility Technologies Pvt. Ltd. vs. Central Bureau of Investigation, reported in 2019 (3) Shim. LC 1691, on the basis of ratio of law propounded by the Apex Court in its various pronouncements, has reiterated the power of the Magistrate as well ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 10 as parameters to be taken into consideration at the time of framing of charge. It is also settled that at the time of undertaking such exercise at the time of framing of charge the Magistrate is not .
supposed to conduct a mini trial at the stage of framing of charge and not to appreciate evidence as warranted at the stage of conclusion of trial, but he has power to evaluate material and the documents on record alongwith material being referred by the accused if the said parameter confirms to the parameters laid down by the Apex Court reiterated in Siemens' case supra. Whereas at consideration of r to the stage of taking cognizance, as already stated supra, on material placed before Magistrate prosecution/investigating agency, even if there is evidence raising by suspicion of commission of offence by accused the cognizance can be taken.
17. No doubt, the evidence or material placed before the Magistrate, at the time of taking cognizance, is not to be evaluated on merit, but definitely it is duty of the Court to see as to whether some evidence is available on record or not. In case, there is no evidence on record to indicate commission of alleged offence(s), the Magistrate is not supposed to act as a Post Office, but is expected to apply his judicial mind according to facts and circumstances of the case for accepting or rejecting the challan/report filed before him under Section 173 Cr.P.C.
18. Section 415 IPC defines cheating as under:-
"Section 415. Cheating.-Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any person, or to ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 11 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"."
19. Section 420 IPC reads as under:-
"Section 420.Cheating and dishonesty inducing deliver 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 r or any part of a valuable security, or anything which is signed or sealed, and which is capable to 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."
20. For making out an offence of cheating following ingredients are essential:-
(i) Deception of a person either by making either by making a false or misleading representation or by other action or omission;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
21. For the purpose of constituting an offence of cheating complainant is required to show that the accused had fraudulent or ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 12 dishonest intention at the time of making promise or representation.
22. In present case, petitioner No.1 has shown a plot to .
respondent No.2-complainant, available for sale, pretending that he was having Power of Attorney of some of owners and thus, would be able to manage the execution of sale deed of the said property in favour of respondent No.2-complainant and induced by his representation, respondent No.2-complainant was made to deliver an amount of `1,00,70,000/- to petitioner No.1, out of which a sum of `70,00,000/- was utilized by the petitioners for executing sale deed in favour of respondent No.2-complainant, but rest `30,00,000/- was retained without any explanation. Rather, it appears from record that out of that a sum of `18,00,000/- has been misappropriated by petitioner No.1 to purchase a piece of land in favour of his son petitioner No.2 that too from the property which was shown to respondent No.2-complainant, available to her for purchase. Not only this, petitioner No.1 is completely silent about balance amount of `30,70,000/- which definitely indicates dishonest intention on the part of the petitioners. Investigating Agency has placed on record alongwith challan details of transactions alongwith documents made by respondent No.2-complainant or on her behalf by her husband or mother in favour of petitioner No.1 and also sale deeds executed by petitioner No.1 in favour of respondent No.2- complainant, which clearly indicate that a sum of `30,70,000/- was retained by petitioner No.1. Therefore, for material placed before learned Magistrate, it cannot be said that allegations made in First Information Report, if accepted to be true in its entirety, did not ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP 13 prima-facie constitute any offence or make out a case against petitioners at their face value. Rather, there was sufficient material before the Magistrate to take cognizance of the offence alleged to .
have been committed by the petitioners, as the record so produced is sufficient to construe that there is possibility of commission of offence. Needless to say, petitioners have a right to put their version before the Court at the stage of consideration of Section 227 Cr.P.C. before framing of charge under Section 228 Cr.P.C.
23. There may be cases where a victim has a right to proceed against the culprit simultaneously by filing criminal case for commission of offence, ingredients where of exist in the facts and circumstances of the incident and also to proceed with civil action by filing a Civil Suit for recovery of loss caused by the accused person. Filing of Civil Suit for redressal of damages does not bar a person from initiating a criminal case involving ingredients of criminal offence entitling plaintiff/complainant to initiate criminal case against the offender. Therefore, filing of Civil Suit for recovery, in present case, does not create bar to respondent No.2- complainant to lodge FIR against the petitioners.
24. In view of above discussion, no interference is warranted in the impugned order and accordingly, present petition is dismissed in aforesaid terms. Pending application(s), if any, also stand disposed of.
(Vivek Singh Thakur), Judge.
November 2, 2020 (Purohit) ::: Downloaded on - 02/11/2020 20:21:07 :::HCHP