Allahabad High Court
Dr. Sanjeev Kumar Agarwal vs State Of U.P. And Another on 3 March, 2020
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On: 18.12.2019 Delivered On: 3.3.2020 Court No. - 67 Case :- APPLICATION U/S 482 No. - 29271 of 2015 Applicant :- Dr. Sanjeev Kumar Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Swapnil Kumar Counsel for Opposite Party :- Govt. Advocate,Rakesh Kumar Garg Hon'ble Narendra Kumar Johari,J.
1. The present 482 Cr.P.C. application has been filed with a prayer to quash the order dated 05.08.2015 passed by C.J.M., Firozabad and entire proceeding of Misc. Case No. 307 of 2014 (Bal Kishan Vs. Sanjeev and others) arising out of Case Crime No. 554 of 2013, under Sections 420, 406 I.P.C., Police Station Dakchhin, District Firozabad.
2. Heard Sri Swapnil Kumar, learned counsel for the applicant, Sri Rakesh Kumar Garg, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
3. Learned counsel for the applicant has submitted that opposite party no.2 moved application under Section 156(3) Cr.P.C. before Magistrate concerned, contending that opposite party no.2 and applicant are well acquainted to each other. Applicant given an offer to opposite party no.2 to purchase his property including kothi and open land, measuring area 7530.28 sq. Ft. situated in Khasra No.468 Ka in Mauja Dholpura, Firozabad, in Rupees 70 lakhs as consideration money. Accordingly on agreement to sell was executed in between the parties on 19.09.2011. Applicant has given Rs.10 lacs through three cheques on dated 19.09.2011 and 31.12.2011. In agreement, it was agreed that rest money Rs.60 lacs will be paid by opposite party no.2 to applicant upto 31.05.2012 and applicant shall execute sale deed in favour of Opposite party No.2. Applicant encashed two cheques of Rs.2.50 lacs and one cheque of Rs.05 lacs was returned by applicant and opposite party No.2 paid Rs.05 lacs cash on 02.01.2012 in lieu of returned cheque. Opposite party No.2 has also paid Rs.5 lacs cash to applicant on 23.10.2011. Again on 22.03.2012 applicant received Rs.15 lacs cash from opposite party No.2. Hence applicant has received total Rs.30 lacs as earnest money from opposite party No.2. Despite receiving aforesaid amount as earnest money and despite repeated requests applicant did not execute the sale deed in favour of opposite party No.2, on pretext that there is a property dispute in between applicant and his brother Pankaj Kumar Agarwal. Applicant did not return the aforesaid earnest money to opposite party No.2 on his demand thus, applicant has cheated the opposite party No.2.
4. Considered the application of applicant learned Magistrate passed the order to register criminal case and investigate the matter. The compliance of order of Magistrate a F.I.R. bearing Case Crime No.554 of 2013 was registered against the opposite party/petitioner by Police Station concerned under Sections 420 and 406 I.P.C.
5. Police started investigation. During investigation I.O. recorded the statement of informant/opposite party no.2 on different dates and after thorough investigation, I.O. reached on conclusion that there is no sufficient evidence to proceed with the case in court and no offence is made out against applicant, thus, I.O. submitted final report on 05.01.2014.
6. Against the final report Opposite party no.2 submitted protest application before C.J.M. concerned on 03.10.2014. C.J.M., Firozabad vide order dated 05.08.2015 allowed the protest petition of Opposite party no.2 by rejecting final report, vide order dated 05.08.2015 and summoned the applicant under Section 420 I.P.C. for facing the trial.
7. Learned counsel for the applicant further submitted that it is admitted to applicant that he had received Rs.5 lacs through two cheques from Opposite party no.2, as loan, but he has returned the said loan amount in intallments from time to time. The entry of said transaction has also been made by applicant in books of accounts/computation chart of income tax in assessment year 2013-2014. After receiving back the aforesaid loan amount, opposite party No.2 a feeling of dishonesty prevailed in mind of Opposite party no.2 therefore with an intention to blackmail and pressurize applicant and to defame him, Opposite party no.2 lodged the F.I.R. against applicant.
8. The applicant earlier has filed a Criminal Misc. Writ Petition No.18042 of 2013 before this Court, which was disposed of on 18.09.2013 in terms of Section 41(1)(B) and 41A Cr.P.C.
9. Applicant neither received any cash amount from Opposite party no.2 nor has executed any deed of agreement to sell.
10. The aforesaid agreement to sell was unregistered thus is not admissible in evidence in accordance with relevant law. Applicant is absolute owner of the property and he has never deceived Opposite party no.2 in any way. In fact applicant has executed a sale deed of open land measuring area 95.81 Sq. mtr., situated in aforesaid Khasra No.468 Ka in favour of Smt. Urmila Agarwal wife of Opposite party no.2 on 29.05.2012 i.e. subsequent to alleged execution of agreement to sell. At that time there was no dispute in between applicant and opposite party no.2, therefore, the entire version of F.I.R. becomes false. The alleged agreement to sell is a forged document. Its original has neither been produced before Investigating Officer during investigation nor before Magistrate. As a matter of fact, wife of Opposite party no.2 after purchasing the aforesaid property on 29.05.2012, sold again the same to brother of applicant namely Pankaj Kumar Agarwal by deed of sale on 10.09.2012. Opposite party no.2 never approached to civil court for redressal of his grievances. The so called dispute is of civil in nature. Opposite party no.2 is trying to convert a civil dispute into criminal dispute, only to pressurize and blackmail applicant.
11. Learned counsel for applicant further contended that learned Magistrate, Firozabad has not considered the matter properly and passed the summoning order without considering legal aspect. The allegations made against applicant are absolutely without substance. It never construed a criminal offence and the entire proceeding is abuse of process of law, thus the impugned summoning order is liable to be quashed. In support of his argument learned counsel for the applicant has submitted the case law Vesa Holdings Private Limited and another vs. State of Kerala and others (2015) 8 Supreme Court Cases 293.
12. Learned counsel for opposite party no.2 and learned AGA for the State have submitted their counter affidavits.
13. Learned counsel for opposite party no.2 refuted that applicant has executed an agreement to sell in favor of opposite party no.2 to sale his property situated in Khasra No.468 Ka in Rs.70 lacs. He has taken Rs. 30 lacs as earnest money from opposite party No.2 but he neither executed sale deed in accordance with the terms of agreement to sell nor he refunded the earnest money Rs.30 lacs. He expressed his inability to execute sale deed on pretext that there is a dispute in between applicant and his brother regarding aforesaid property and refused to execute sale deed as well as refused to refund earnest money. In fact, applicant has executed the agreement to sell only with intention to cheat opposite party no.2, hence, opposite party no.2 was bound to approache the court of Magistrate for redressal of his grievance. The order of Magistrate is legal, just and proper. The offence of Section 420 IPC is proved and the present application under Section 482 Cr.P.C. is liable to be rejected.
14. Heard the rival contentions of learned counsels and perused the record.
15. The dispute in present case is that applicant has executed a deed of agreement to sell in favor of opposite party no.2 for sale of constructed building and open land measuring 7530.28 sq. ft., situated in Khasra No.468 ka village-Mauja Dholpura, Firozabad in Rs. 70 lacs as consideration value. Applicant received Rs.30 lacs as earnest money. Subsequently, he refused to execute sale deed on the pretext that their exists a property dispute with his brother. He also refused to returned the earnest money, despite notice dated 12.10.2012. Aggrieved by the act of applicant, opposite party no.2 approached to court and moved an application under Section 156(3) Cr.P.C.. The application was allowed by the Magistrate concerned and an FIR was lodged against applicant on 06.09.2013, as case crime no.554 of 2013 under Section 420 and 406 IPC. After investigation, I.O. submitted final report, which was challenged by opposite party no.2 by way of protest application. Protest application was allowed by the court concerned, and applicant was summoned by the court to face trial under Section 420 IPC. Learned counsel for the applicant has submitted that FIR has been lodged on the alleged breach of contract. The agreement to sell is a forged document. Entire version of FIR and circumstances of the case, indicates that no deception has been played from the very inception. It has been shown that a deed of agreement to sell was executed on 19.09.2011 to sale the property in Rs.70 lacs, but the said deed is an unregistered document. Opposite party no.2 has never produced the said deed of agreement to sell in original. In this regard an order was passed by this Court on dated 11.04.2016, which reads as under:-
"Learned counsel for the applicant contends that the alleged original unregistered agreement for sale dated 19.9.2011 of which execution is not admitted, has not been produced by O.P. No. 2 either before the Magistrate or before the Investigating Officer or before this Court with counter affidavit and no specific reply to para 19 of the affidavit in support of application under Section 482 has been given in para 20 of the counter affidavit.
Learned counsel for O.P. No. 2 prays for and is granted two weeks time for filing supplementary affidavit for submitting clear reply to para 19 of the affidavit filed by applicant in support of his application under Section 482 Cr.P.C.
List after two weeks.
Interim order, if any is extended till the next date of listing."
Despite the aforesaid order, opposite party no.2 neither produced the original deed nor submitted supplementary affidavit.
16. The fact has not been denied that after the execution of said agreement to sell, a deed of sell was executed by applicant in favour of wife of opposite party no.2 on 29.05.2012, regarding the part of land, situated in Khasra No.468 Ka. The boundary of property agreed to sale as mentioned in alleged deed of agreement to sell is as under:-
East- property of Suresh Chandra Mittal.
West-Passage 15 ft.
North-NH-2 15.5 wide, and property of Pankaj Kumar Agarwal.
South property of Rajeev Agarwal.
Whereas the boundary mentioned in deed of sale dated 29.05.2012 is as under:-
East-House of Smt. Vinita Agarwal.
West-Chuck Road.
North-Service Road of NH-2.
South-Land of Sanjeev Agarwal.
Boundary mentioned in sale deed dated 29.05.2012 indicates that the land which has been sold to Urmila Agrawal W/o opposite party No.2, in Northern part of land of applicant, as rest of the land of applicant has been shown towards south of the sold land. The agreement to sell dated 19.09.2011 and sale deed dated 29.05.2012 reflects that the property sold by way of sale deed dated 29.05.2012 is part of property which was laying under the ownership of applicant and is the part of property which is mentioned in agreement to sell (as the boundary mentioned in agreement to sell indicates that there remains no property of applicant on any side). It has been mentioned at page no. 10 of sale deed dated 29.05.2012 that no agreement of sale for the property has been executed. The purchaser is wife of opposite party no.2, therefore the fact mentioned in agreement to sell becomes false.
17. The original deed of agreement to sell has not been produced by opposite party no.2. It is an unregistered document which is admitted by opposite party no.2. The document relates with agreement to sale the property having value more than Rs.100/- therefore as according to provisions of Registration Act, it requires to be registered. It cannot be disputed that the said unregistered deed may be used for collateral purposes.
18. The alleged agreement to sale has been shown as executed on 19.09.2011 subsequent to aforesaid agreement to sell, a sale deed dated 29.05.2012 has been executed by applicant in favouru of wife of opposite party No.2, regarding part of land which was covered by deed of agreement to sell. Thereafter, opposite party no.2 has moved his application under Section 156(3) Cr.P.C. on 12.06.2012. It has been mentioned in impugned order dated 05.08.2015 that on 10.09.2012 wife of opposite party no.2 has further executed the sale deed in favour of applicant's brother regarding the property which was purchased by her on 29.05.2012. The aforesaid transactions shows that from the very inception of transaction i.e. on 19.09.2012 there was neither any dispute in between the parties nor any intention to deceive was present as subsequently opposite party no.2 purchased the part of property in the name of his wife. Section 415 of I.P.C. defines the offence of cheating which is reproduced 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.
Illustrations-
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamond articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A Intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.
(g) 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.
(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."
19. According to Section 315 of I.P.C. the essential ingredient for offence of cheating in presence of fraudulent and dishonest intention at the time of transaction. In the case Vesa Holdings Private Limited and another vs. State of Kerala and others (Supra), it has been held that:-
"12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings.
20. The illustration (g) of Section 415 I.P.C. also reflects the intention of law. Opposite party no.2 has not produced any document which may prove that there was any property dispute in between applicant and his brother. The applicant has mentioned in para-13 of his petition that he is the absolute owner of the property which has not been denied by opposite party no.2 in his counter affidavit. In relevant paras-13 & 14 of affidavit it has been mentioned by the petitioner that the sale deed dated 29.05.2012 has been executed by applicant in capacity of absolute owner, as it has been mentioned at page 4 of sale deed dated 29.05.2012. No document of civil litigation has also been filed by opposite party no.2. The dispute is private and civil in nature. In the case State of Haryana Vs. Bhajan Lal and others 1992 (SCC) Cri. 426, it has been held by Hon'ble Apex Court in para 102 that 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. The Court may exercise its jurisdiction under Section 482 Cr.P.C. to secure the ends of justice.
21. In view of the above discussion, it is proved that opposite party no.2 has failed to show the intention of cheating at the time of alleged execution of agreement to sell. Hence, the offence of Sections 420 I.P.C. is not establishes and if in above situation, applicant is summoned to face the trial, then in that case it would amount to abuse of process of the Court, hence, the impugned order dated 05.08.2015 passed by C.J.M., Firozabad in Misc. Case No.307 of 2014 (Bal Kishan Vs. Sanjeev and others), arising out of Case Crime No.554 of 2013 is quashed.
22. Accordingly, appeal is allowed.
Order Date :- 3.3.2020 Krishna