Madhya Pradesh High Court
Jitendra Kumar Dhawan vs The State Of Madhya Pradesh on 29 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1677
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.10888/2019
( Jitendra Kumar Dhawan Vs. State of M.P.)
Shri A.S. Garg, learned Senior Counsel with Shri
Anurag Baijal, learned counsel for the applicant.
Shri Amol Shrivastava, learned Public Prosecutor for
the respondent/State.
ORDER
(Passed on 29/05/2020) The applicant has preferred this petition under Section 482 of Cr.P.C. for seeking quashment of FIR and all other consequential proceedings with regard to crime No.563/2016 registered at Police Station Banganga, District Indore for commission of offence punishable under Section 420, 467, 468, 471 and 120 -B read with Section 34 of I.P.C.
(2). Brief facts of the case are that on 29.06.2016 one Alka Chittoda made a written complaint against Chirag Shah and Nikul Kapasi regarding the act of cheating and fraud committed by them in selling a plot to the complainant in Kalindi Gold City Colony situated at Village Banghya Tehsil- Sanwer District Indore. On the basis of aforesaid complaint, FIR bearing crime No.563/2016 was registered against the Chirag Shah and Nikul Kapasi. During the course of investigation the prosecution received 22 complaints by the other complainants who had the same grievance of being 2 cheated in purchasing the plot in Kalindi Gold City. As per complaints, accused person induced them to purchase the plots in Kalindi Gold City and cheated them by taking money from them and not giving them their plots or not getting the plots registered in their names. It is also alleged that accused person took money from them and did not give them any receipt of the same and also took unrecorded money from them in the name of development charges. Inspite of taking entire plot value from them, the accused persons did not allot plots to the complainants and thereby cheated them. The allegation against some accused persons is that they forged general power of attorney of some farmers and sought permission from the concerned authorities to develop the colony. After investigation, the police filed the charge-sheet on 07.10.2016 before the Court of Judicial Magistrate First Class, Indore. (3). Learned counsel for the applicant has submitted that applicant has no concern with the above said matter as he is neither associated nor interested in the aforementioned colony and also not having any control or authority to sell or purchase lands in the above said colony. He is neither a partner nor an employee of firm and is nowhere associated with the partnership firm M/s Gold City Developers, Indore who developed the aforesaid colony. The applicant neither contacted nor induced either the complaints or any other person to purchase plots in the Kalindi Gold City, therefore, it cannot be said that applicant has cheated anyone. If the allegations made in the FIR are taken at their face value and accepted in its entirety, they did not constitute any 3 offence under Section 420 of I.P.C. No mens rea is inducted on the part of the applicant from the allegations made in the FIR. He is not alleged to have forged any documents. Hence, no offence can be said to be committed under Section 467, 468 and 471, 120-B of I.P.C. It is further submitted that all the allegation of alleged act of cheating and forgery are pertaining to the other co-accused persons and no specific allegation or averments are made against the applicant. The allegations are omnibus and general in nature. One of the allegations in the complaint is that the colonizer of Kalini Gold City used to maintain dairies to record the payments given by them from time to time and the applicant signed on these diaries but the act of signing of said diaries does not constitute any offence of either cheating or forgery as he neither induced any one to purchase the plot nor made any forged signature of anyone nor fabricated any documents. Therefore, learned senior counsel submitted that as there is no legal evidence against the applicant and he has no role to play in entire matter nor any case is made out, therefore, the FIR bearing crime No.563/2016 and all other consequential proceedings registered against the present applicant may be quashed. (4). Per contra, learned Public Prosecutor for the respondent /State has opposed the prayer by contending that the FIR vide crime No.563/2016 has been registered against the applicant and other co-accused persons namely Nilesh Ajmera, Chirag Shah, Nikul Kapasi, Ritesh Ajmera, Mahaveer Jain on complaints of plots holders who are aggrieved to purchase the plots from the accused persons 4 situated at Kalindi Gold City and they have paid entire consideration amount but despite this neither the sale deed has been executed by accused persons nor the possession of the plots has been handed over to them and by doing this, the applicant committed cheating and fraud with the complaint, therefore, he prayed for dismissal of the petition. (5). I have given my anxious consideration to the facts of the present case and the rival contentions raised by the parties. (6). The legal principles in regard to quashing of a First Information Report in view of a large number of decisions rendered by the Hon'ble Apex Court now almost well settled. (7). In State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp.(1) SCC 335], it was held :
"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 extra-ordinary 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 F.I.R. 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. ....
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 5 against the accused.
6. ....
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."
(8). In the aforesaid backdrop, I may examine as to whether the FIR lodged by the the complaint makes out any case for proceeding against the applicant. For the said purpose,notice the ingredients of Section 415 punishable under section 420 of the I.P.C. which are as follows.
(I) Deception of any persons.
(II) Fraudulently or dishonestly inducing any person to deliver any property; or (III) 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.
iii) 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.
Section 406 of the Indian Penal Code reads, thus :
"406. Punishment for criminal breach of trust.
--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
(9). Undisputedly, the applicant is not named in the FIR. The FIR as well as statement of witnesses has not made any averments so as to infer any fraudulent or dishonest inducement having been made by the applicant pursuant to which the complaints parted with the money. There is no document available on record to show that the applicant is partner or employee of M/s Kalindi Gold City. It is alleged that the colonizer of Kalindi Gold City used to maintain diaries to record the payments given by them from time to time and the 6 present applicant signed on these diaries. However, the entry made in the said diary does not disclose that the applicant received any amount with respect to the plot allotted to the complainants in Kalindi Gold City Colony, Indore. Therefore, these entries are not sufficient to connect the applicant with the present crime. Only omnibus and general allegations have been made against the applicant. Hence, no case of prosecution under Section 420 of I.P.C. is made out even prima facie. (10). In the case of S.W. Palanitkar and Ors vs State Of Bihar And Anr, AIR 2001 SC 2960, it has been held that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be pre-sumed as an act leading to cheating. However, in the present case there is no allegation that the applicant executed any agreement regarding the sale of plots and being partner of the M/s Kalindi Gold City failed to execute the sale deed in favour of the complainant even after receipt of the consideration amount, these such allegation has been made against the co-accused persons namely Chirag Shah, Ritesh Ajmera, Nakul Kapasi and Mahaveer Jain.
(11). So far as the offence under Section 467, 468 and 471 of IPC is concerned, it is admitted that the applicant has not executed any sale deed in favour of the complainant. The term forgery used in under Section 467 is defined under Section 463 of I.P.C. Whoever makes any false document or 7 part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below:
"464. Making a false document.-A person is said to make a false document or false electronic record-
First.-Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery. Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words 'digital signature' wherever it occurs were substituted by the words 'electronic signature' by Amendment Act 10 of 2009]. (12). The condition precedent for an offence under sections 467, 468 and 471 is forgery. The condition precedent for forgery is making a false document . However, This case does not relate to execution of any false document by the 8 present applicant.
(13). In this view of the matter, the present application filed under Section 482 of Cr.P.C. is allowed. Accordingly, the FIR bearing crime No. 563/2016 registered at police station- Banganga, Indore and the consequential proceedings in furtherance to the above FIR, is hereby quashed qua the present applicant Jitendra Kumar Dhawan.
(S. K. AWASTHI) JUDGE praven PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION KUMAR COURT INDOR, postalCode=452005, st=Madhya Pradesh, 2.5.4.20=e98f729464903facdd39c454715d NAYAK 6eccc5a350c9111fb019b34dace6d05b8fd5 , cn=PRAVEEN KUMAR NAYAK Date: 2020.05.29 14:19:40 -12'00'