Madhya Pradesh High Court
Balraj Kundu vs The State Of Madhya Pradesh on 27 June, 2023
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
1
M.Cr.C. No.2487 of 2023
&
M.Cr.C. No.2493 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
M.Cr.C. NO. 2487 OF 2023
BETWEEN :-
1. KCC BUILDCON PRIVATE
LIMITED, COMPANY
REGISTERED UNDER THE
PROVISIONS OF
COMPANIES ACT, 1956
HAVING CORPORATE
IDENTITY NUMBER:
U45400DL2009PTC194194
REGISTERED WITH
REGISTRAR OF
COMPANIES, NATIONAL
CAPITAL TERRITORY OF
DELHI AND HARYANA
THROUGH
2. BALJIT SINGH SIGHORA,
SON OF SHRI RAN SINGH,
AGED ABOUT-62 YEARS,
BY OCCUPATION-
DIRECTOR, BUSINESS
DEVELOPMENT OF THE
KCC BUILDCON PRIVATE
LIMITED, RESIDENT OF-J-
13, SOUTH CITY-1,
GURGAON (HARYANA).
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/27/2023
6:51:29 PM
2
M.Cr.C. No.2487 of 2023
&
M.Cr.C. No.2493 of 2023
3. SHIVRAJ KUNDU, SON OF
SHRI JILE SINGH KUNDU,
AGED ABOUT-50 YEARS,
BY OCCUPATION-
BUSINESS (DIRECTOR OF
KCC BUILDCON PRIVATE
LIMITED), RESIDENT OF-
PENT HOUSE, B,
BUILDING-2, HIBISCUS
SOCIETY, SECTOR 50,
GURGAON (HARYANA).
4. ANURAG DUHAN, SON OF
SHRI INDER SINGH, AGED
ABOUT-29 YEARS, BY
OCCUPATION- SITE
ENGINEER, RESIDENT
OF59-A VIKAS NAGAR,
NEAR BUS STAND
ROHTAK, HARYANA.
5. V.K. LAMBA, SON OF SHRI
T.S. LAMBA, AGED ABOUT-
76 YEARS, BY
OCCUPATION PROJECT
DIRECTOR, KCC
BUILDCON PRIVATE
LIMITED, A-I, OLD DLF
SECTOR, 14 GURGAON,
DISTRICT-HARYANA.
6. HASIM KHAN, SON OF
SHRI GUL MOHAMMAD,
AGED ABOUT-53 YEARS,
BY OCCUPATION-
OPERATIONAL HEAD,
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/27/2023
6:51:29 PM
3
M.Cr.C. No.2487 of 2023
&
M.Cr.C. No.2493 of 2023
STATE OF MADHYA
PRADESH KCC BUILDCON
PRIVATE LIMITED,
RESIDENT OF-06,
RAVIDAS NAGAR,
NARELA SHANKARI,
HUZUR, DISTRICT-
BHOPAL (MADHYA
PRADESH).
7. MAHENDRA SINGH @
MINTU SINGH RAJPOOT,
SON OF SHRI MAHARAJ
SINGH, AGED ABOUT-48
YEARS, BY OCCUPATION-
JOB, RESIDENT OF-177,
SADBHAVNA NAGAR
MAKRONIYA BUZURG
SAGAR, DISTRICT SAGAR
(MADHYA PRADESH).
....PETITIONERS
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH
SHRI SIDDHARTH KUMAR SHARMA - ADVOCATE FOR
PETITIONERS)
AND
1. STATE OF MADHYA
PRADESH, THROUGH
POLICE STATION-MOTI
NAGAR, DISTRICT-SAGAR
(MADHYA PRADESH).
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/27/2023
6:51:29 PM
4
M.Cr.C. No.2487 of 2023
&
M.Cr.C. No.2493 of 2023
2. DHARAMVEER, SON OF
SHRI SULTAN SINGH,
AGED ABOUT-43 YEARS,
RESIDENT OF-VPO
SILANA TAHSIL JAJJHAR,
DISTRICT-HARYANA.
....RESPONDENTS
(SHRI ANUBHAV JAIN - GOVT. ADVOCATE FOR
RESPONDENT/STATE AND SHRI VINESH MARAN -
ADVOCATE FOR OBJECTOR)
M.CR.C. NO.2493 OF 2023
BETWEEN:-
BALRAJ KUNDU, SON OF SHRI
JILE SINGH, AGED ABOUT-52
YEARS, BY OCCUPATION-
RETIRED DIRECTOR OF KCC
BUILDCON PRIVATE LIMITED,
RESIDENT OF HOUSE NO.115,
SECTOR-14, ROHTAK (HARYANA).
.....PETITIONERS
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI
SIDDHARTH KUMAR SHARMA - ADVOCATE FOR PETITIONER)
AND
1. STATE OF MADHYA
PRADESH, THROUGH
POLICE STATION-MOTI
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/27/2023
6:51:29 PM
5
M.Cr.C. No.2487 of 2023
&
M.Cr.C. No.2493 of 2023
NAGAR, DISTRICT-SAGAR
(M.P.)
2. DHARAMVEER, SON OF
SHRI SULTAN SINGH, AGED
ABOUT-43 YEARS,
RESIDENT OF-VPO SILANA
TAHSIL JAJJHAR, DISTRICT-
HARYANA
......RESPONDENTS
(SHRI ANUBHAV JAIN - GOVT. ADVOCATE FOR
RESPONDENT/STATE AND SHRI ASHISH GIRI -
ADVOCATE FOR RESPONDENT NO.2)
-------------------------------------------------------------------------------------------------------
Reserved on : 26/06/2023
Pronounced on : 27/06/2023
-------------------------------------------------------------------------------------------------------
These petitions having been heard and reserved for order, coming
on for pronouncement this day, Shri Justice Rajendra Kumar (Verma)
pronounced the following :
ORDER
Both these miscellaneous criminal cases have been filed under Section 482 of Criminal Procedure Code by the petitioners for invoking inherent powers under Section 482 of Code of Criminal Procedure for quashing the criminal proceedings of FIR No.41/2021 registered at Police Station Moti Nagar, District Sagar for commission of offence punishable Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 6 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 under Sections 120-B, 406, 420, 467, 468, 471 and 506 of Indian Penal Code against the petitioners.
2. The brief facts of the case are as follows:-
That, according to case of the prosecution, an incident is said to have taken place on 15.01.2018 to that effect an F.I.R. was lodged on 14.01.2021 wherein it is alleged that a written complaint was lodged on 14.01.2021 at Police Station-Moti Nagar, District Sagar against the present petitioners alleging that they knew the co-accused Rohit Sharma since the year 2015. Rohit Sharma introduced him to co-accused Hasim Khan, who is the M.P. Head of KCC Buildcon and other co-accused persons including the present petitioner. It is alleged that the co-accused Hasim Khan told the complainant that his company has given the contract of construction of Bhopal-Jaisinagar Road to Red Conn Company which is headed by Rohit Sharma. The complainant thereafter agreed to supply machinery and ready-mix cement concrete and executed an agreement dated 09.02.2018 for Rs.6.97 crores with Rohit Sharma, who assured him of monthly payment for the goods supplied. According to the complainant, Rohit Sharma initially made a payment of Rs. 1,20,85,000/-
and thereafter stopped making payments. When he demanded the balance amount, co-accused Hasim Khan assured him of the payment and Rohit Sharma gave a cheque of Rs.5,76,15,000/- dated 25.09.2019, which when presented for payment was dishonoured. In this way, present petitioners have cheated and played fraud with him. It is further alleged that under the threat and pressure of co-accused Hasim Khan, the complainant sold his plant to KCC Company for a meager amount Rs.62 lakhs. Out of this amount, half was deposited in his account through RTGS on 19.07.2019 Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 7 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 and rest of the amount was paid to Sriram Finance Company, that has financed the plant. It is alleged that M/s. Red Conn Constructions is the subcompany of KCC Buildcon Private Limited. The contract for construction of the Road from Bhopal to Jaisinagar awarded to KCC Buildcon was sublet to M/s Red Conn Company. It is alleged that it is his modus operandi to cheat and play fraud with other innocent business men in a similar manner and a cheque of Rs.5,76,15,000/- issued by Rohit Sharma was also dishonoured, for which a complaint case under Section 138 of the Negotiable Instrument Act is pending at JMFC Court, Jhajjhar. On the basis of aforesaid, FIR was registered bearing Crime No.41/2021 by the Police of Police Station Moti Nagar, District Sagar (M.P.) for the offences punishable under Sections 120-B, 406, 420, 467, 468, 471 and 506 of Indian Penal Code. Hence, this petition.
3. Learned Senior Counsel appearing for the petitioners submitted that the present FIR has been registered against the petitioners is a malicious attempt to arm-twist the petitioners to succumb to the pressure of respondent No.2 complainant and objectors. It is also submitted by the counsel for the petitioners that a dispute between the party namely the petitioners and respondent No.2/complainant/objectors is fundamentally a civil dispute and as held in Paramjeet Batra Vs. State of Uttarakhand and others; (2013) 11 SCC 673, when a civil remedy was available, the Court ought to quash the criminal proceedings to prevent abuse of process of Court. It is also submitted by the learned counsel for the petitioners that the present FIR which is under challenge is the second First Information Report lodged pertaining to the said dispute whereas, Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 8 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 earlier First Information Report was lodged vide Crime No.769/2019 by the police of Police Station Moti Nagar, District Sagar (M.P.).
4. Learned Senior Counsel for petitioners placed reliance on judgments passed by Hon'ble Supreme Court in cases of T.T. Antony v. State of Kerala and others; (2001) 6 SCC 181, Babubhai v. State of Gujarat and others ;(2010) 12 SCC 254, Arnab Ranjan Goswami v. Union of India and others; (2020) 14 SCC 12, Krishna Lal Chawla and others v. State of U.P. and another;(2021) 5 SCC 435, State of Haryana and others v. Bhajan Lal and others; (1992) Supp (1 SCC 335, Zandu Pharmaceutical Works Ltd. And others v. Mohd. Sharaful Haque and another; (2005) 1 SCC 122, (2021) 5 SCC 524 (Kapil Agarwal and others Vs. Sanjay Sharma And others) and Vijay Kumar Ghai and others v. State of West Bengal and others;(2022) 7 SCC 124 and has submitted that dispute is fundamentally a civil dispute and the Hon'ble Apex Court in the case of Paramjeet Batra Vs. State of Uttarakhand and others; (2013) 11 SCC 673 held when a civil remedy is available, the Court ought to quash the criminal proceedings to prevent abuse of process of Court.
5. On the other hand, counsel for the respondent/State as well as counsels for the objector/complainant opposed the applications and submitted that the M/s Red Con Construction is the sub company of KCC Buildcon Pvt. Ltd., the contract for construction of the road from Bhopal to Jaisinghnagar was awarded to KCC Builcon and which was sublet to M/s Red Con Construction. It is also submitted that the petitioners are habitual offender and it is their modus operandi to cheat and play fraud with innocent businessman in a similar manner. It is further submitted Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 9 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 that cheque of Rs.5,76,15,000/- was issued by Rohit Sharma which was also dishonoured for which a complaint case under Section 138 of Negotiable Instrument Act is also pending at JMFC Court Jhajjar. In these circumstances, petitions filed by the petitioners deserve to be dismissed.
6. I have heard learned counsel for the parties.
7. It is not in dispute, that earlier also an FIR bearing Crime No.769/2019 was registered on the complaint made by one Vinod Prajapati in the police Station Moti Nagar, District Sagar on dated 22.10.2019 wherein present complainant and objectors got their statement recorded under Section 161 of Cr.P.C. wherein they have stated that his agreement for work of Rs.6.97 crores was with Rohit Sharma who only paid an amount of Rs.1,20,85,000/- and has not paid the balance amount till date. It is also admitted that as the agreement period for plant was over, he sold his plant to KCC Company and received the entire amount and has not stated anything about being threatened. The Hon'ble Apex Court in case of T.T. Antony v. State of Kerala and others; (2001) 6 SCC 181 has held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The Hon'ble Apex Court in case of T.T. Antony v. State of Kerala, (2001) 6 SCC 181 in para 20 and 27 has held as under: -
"20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus, there can Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 10 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC."
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter- case, filed in connection with the same or connected cognizable offence alleged to have been Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 11 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
8. A perusal of the above-reproduced judgment would show that it had been observed by the Hon'ble Supreme Court of India that in case, with respect to one incident an FIR already stands registered, then a second FIR with respect to the same incident cannot be registered and in case the same is registered then, the High Court while exercising its powers under Section 482 Cr.P.C, would be well within its rights to quash the second FIR. In view of the law laid down by the Hon'ble Apex Court in case T.T. Antony (supra) there cannot be second FIR arising out of the same incident which is not maintainable and runs contrary to the law laid down by the Hon'ble Apex Court. Thus, prima facie it appears that second FIR is not maintainable and is nothing but an abuse of process of court of law.
9. The Hon'ble Apex Court in the widely celebrated judgment State of Haryana and others v. Bhajan Lal and others; (1992) Supp (1 SCC 335 considered in detail the scope of the High Court and powers under Section 482 and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed.
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 12 M.Cr.C. No.2487 of 2023& M.Cr.C. No.2493 of 2023 The Hon'ble Apex Court in case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 in para 102 has held as under:-
"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 extraordinary 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 FIR 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) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 13 M.Cr.C. No.2487 of 2023
& M.Cr.C. No.2493 of 2023 (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 against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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."
10. The Hon'ble Apex Court in case of Paramjeet Batra Vs. State of Uttarakhand and others; (2013) 11 SCC 673 has held that dispute of civil nature to be considered and weighed by High Court under Section 482 to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture, but High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the Court.
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 14 M.Cr.C. No.2487 of 2023& M.Cr.C. No.2493 of 2023
11. The Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd. And others v. Mohd. Sharaful Haque and another; (2005) 1 SCC 122 in para 8 has held as under:-
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 15 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
12. In a case of Kapil Agarwal and others (supra), the Supreme Court dealt with the power provided under Section 482 of Cr.P.C. to the High Court has observed as under:-
"18. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.PC. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C."
13. The Hon'ble Apex Court in case of Vijay Kumar Ghai and others v. State of West Bengal and others;(2022) 7 SCC 124 has cautioned about converting purely civil cases into criminal cases and in para 36 to 38 has held as under:-
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 16 M.Cr.C. No.2487 of 2023& M.Cr.C. No.2493 of 2023 "35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representation he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and
(ii) the person cheated must be dishonestly induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420IPC.
37. The following observation made by this Court in Uma Shankar Gopalika v. State of Bihar [Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 : (2006) 2 SCC (Cri) 49] with almost similar facts and circumstances may be relevant to note at this stage : (SCC pp. 338-39, paras 6-7) "6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of the complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-BIPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000 to the complainant out of that but Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 17 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 the same has never been paid. ... It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the consumer forum in relation to the claim of Rs 4,20,000. It is well settled 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 the present case, it has nowhere been stated that at the very inception that there was intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420IPC.
7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-BIPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. 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 to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482CrPC which it has erroneously refused."
38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants."
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 18 M.Cr.C. No.2487 of 2023& M.Cr.C. No.2493 of 2023
14. In view of the law on which the petitioners have placed reliance and the view taken by the Supreme Court in the aforesaid cases, it is clear that even at initial stage the High Court by exercising its inherent jurisdiction provided under Section 482 of Cr.P.C. can quash the FIR. The Supreme Court has observed repeatedly that nothing in this Code shall be deemed to be limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The High Court is also entitled to quash a proceeding if it comes to the conclusion that allowing such proceedings to continue would be an abuse of process of Court.
15. The Supreme Court has also observed that while exercising powers provided under Section 482 of Cr.P.C. it is the duty of the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The guidelines laid down by the Supreme Court in a case of Bhajan Lal and others (supra) and the categories in which FIR can also be quashed in a petition preferred under Article 226 of the Constitution of India or in exercise of inherent power of the High Court provided under Section 482 of Cr.P.C. It is clear that if High Court comes to a conclusion 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 against the accused. The said judgment further provides that where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 19 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the power can be exercised and FIR can be quashed.
16. Considering aforesaid submission and also in the light of aforesaid positions of law and also from the reading of the FIR, it is evident that the dispute between the parties is predominantly a civil dispute which has been given a cloak of criminal offence which is an abuse of process of Court. In the present case both the parties have entered into an agreement for construction of road which was awarded to the petitioners and was sublet to the complainant/respondent No.2/objector. It is also not in dispute that mere breach of contract is not in itself a criminal offence and gives rise to civil liability of damages. The distinction between mere breach of contract and cheating, which is a criminal offence is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the present case, complaint filed by the complainant does not disclose dishonest or fraudulent intention of the petitioners. It is also evident from the record that there was no intention on the part of the petitioners or others to cheat or defraud the complainant right from the inception further also there was no wrongful loss which has been suffered by the complainant nor any wrongful gain has been obtained by the petitioners and in the absence of these elements no proceedings are permissible in the eyes of law with regard to the commission of the offences punishable under Sections 120-B, 406, 420, 467, 468, 471 and 506 of IPC. In my view complaint does not disclose any criminal offence Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM 20 M.Cr.C. No.2487 of 2023 & M.Cr.C. No.2493 of 2023 at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of process of the Court.
17. Therefore, relying upon the law laid down by the Hon'ble Apex Court as mentioned above and consisted view of this Court in similar matters, this Court in exercise of its inherent powers under Section 482 of Cr.P.C. allow the present applications preferred by the petitioners and quashed the criminal proceedings arising out of FIR No.41/2021 registered at Police Station Moti Nagar, District Sagar for the offences punishable under Section 120-B, 406, 420, 467, 468, 471 and 506 of IPC and all consequential proceedings emanating therefrom against the petitioners in both the petitions also stand quashed.
18. In view of aforesaid, these miscellaneous criminal cases preferred by the petitioners stands allowed and the petitions are accordingly disposed off.
Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA)) JUDGE Kafeel Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/27/2023 6:51:29 PM