Jharkhand High Court
Ramesh Sachdeva And Other vs The State Of Jharkhand And Another on 10 May, 2013
Author: D.N. Upadhyay
Bench: D.N. Upadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) 243 of 2012
1. Ramesh Sachdeva
2. Rakesh Sachdeva
3. Rajan Sachdeva ...... Petitioners
Versus
1. The State of Jharkhand
2. Ashwani Kumar Beotra ...... Opposite Parties
For the Petitioners : Mr. Rajan Raj, Advocate
For O.P. No.2 : Mr. Dilip Jerath, Advocate
For the State : Mr. Jalisur Rahman, A.P.P.
PRESENT
HON'BLE MR. JUSTICE D.N. UPADHYAY
C.A.V. on 17.04.2013 Pronounced on : 10.05.2013
J U D G M E N T
This application u/s 482 Cr.P.C. has been filed for quashing the F.I.R.
arising out of Dhanbad (Bank More) P.S. Case No.621 of 2012 dated
20.06.2012corresponding to G.R. Case No.2456 of 2012 registered u/s 420, 467 & 468/34 of the Indian Penal Code and the entire criminal proceedings arising out of said case pending in the Court of learned Chief Judicial Magistrate, Dhanbad.
2. It appears that O.P. No.2 namely Ashwini Kumar Beotra has filed a complaint case No.1350 of 2012 in the Court of learned Chief Judicial Magistrate, Dhanbad and said complaint case has been sent to Bank More Police Station u/s 156(3) Cr.P.C. after that Bank More P.S. Case No.621 of 2012 has been registered against the accused persons/petitioners.
3. The facts which appear from the complaint, in brief, are that the original accused No.2 was known to the complainant since the mid of 1980's and they were engaged in coal business from that point of time. In due course the family of accused persons/petitioners and complainant developed cordial relation and they had been helping each other as and when required. It is disclosed that the accused persons/petitioners had expressed their desire to sale their 42 decimals of land pertaining to plot No.915, Khata No.80 within mouza Dhanbad No.51, Telephone Exchange Road, Dhanbad. The complainant become interested in purchasing the said 2 land and after negotiation paid Rs.3,20,000/ as an advance whereafter agreement for sale dated 12.03.1991 was executed by the petitioners and their mother Savitri Devi Sachdeva. The accused persons/petitioners have also made it clear that the property was initially purchased by their father late Sukhdev Sachdeva who died on 19.12.1977 leaving behind Savitri Devi Sachdeva (widow), three sons namely Ramesh Sachdeva, Rakesh Sachdeva and Rajan Sachdeva (petitioners) and three daughters namely Asha Taneja (widow of late Dharmvir Taneja) Smt. Sneh Arya (wife of their Pramod Arya) and Dr. Sabita Gulati (wife of Shri Brij Mohal Gulati)
4. When the complainant enquired from the accused persons/petitioners as to whether the sisters would join them as covendors in the proposed agreement for sale, the accused persons stated that their three married sister had relinquished their share in the subject property having regard to the fact that they were given just and sufficient share in the property and assets of their father in the shape of dowry etc. during their marriage and hence accused persons and their mother alone are competent to transfer the subject land. It is further alleged that the accused persons made the complainant to spend lacs of rupees to contest a frivolous revenue case filed against them and also the dispute occasioned between them and Birendra Kumar Bhatia involving part of the subject land and on that pretext too they did not execute sale deed in favour of the complainant. On one ground or the other the accused persons kept postponing the execution of sale deed and that compelled the complainant and other plaintiffs to file Title Suit No.104/2008 against accused persons/ petitioners for specific performance of contract against agreement dated 12.03.1991 in the Court of Sub Judge, Dhanbad. In the said title suit the petitioners appeared and filed their written statement. In course of pendency of said title suit one of the sister of the petitioners namely Dr. Sabita Gulati filed a petition on 24.02.2011 claiming her share in the property and to permit her to contest the suit as necessary party. The non filing of any rejoinder or protest against petition filed by Dr. Sabita Gulati made the complainant convinced that they are having hands in gloves and he felt him selfcheated and lodged this complaint on the basis of which present case has been instituted.
35. The counsel appearing for the petitioners have submitted that the complainant has not come up before this Court with fair hand and he has filed this case almost 21 years after the said agreement dated 12.03.1991 by which the petitioners and their mother had promised to sale the said land to the complainant. It is pointed out that the petitioners did not have deceptive intention at the time of execution of said agreement which is apparent from the contention made in the said agreement as well as the complaint. The petitioners never concealed identity as well as the addresses of the legal heirs of late Sukhdev Sigh Sachdeva. They never restricted the complainant to have contract with those sisters of the petitioners. On further examination of admitted documents it would reveal that the complainant had concealed many facts which are very much relevant to decide the issue involved. The admitted averments made by the complainant and other plaintiffs in the plaint on the basis of which Title Suit No.104 of 2008 has been registered can well be looked into.
6. The complainant is an advocate practicing at Dhanbad Civil Court and he has admitted that since the year 1986 he had shown his interest in the subject property and paid money to the accused persons/petitioners as per their wish and requirement on various occasions and therefore this assertion that a sum of Rs.3,20,000/ was paid as advance on the date of execution of agreement is incorrect. The admission of the plaintiff further indicate that they were fully acquainted with the litigation arising out of the subject property and the complainant being a lawyer had also made pairvee in those cases and spent money. He has also admitted that both the families were having cordial relation. As a matter of fact it was the complainant who influenced the petitioners and their family members and shown that he had obliged them by protecting their interest in the property and made them to agree to sale the said land to him and his family members. The admitted version of the complainant and the plaintiffs in the plaint are suggestive of the fact that negotiation was not made on 12.03.1991 on the date on which said agreement was executed rather it was a date on which a document was created between the parties. It would be pertinent to point it out here that the complainant further admits that draft of agreement was prepared by him and it was handed over to the 4 accused persons to go through and submit the same for its execution. All these clearly indicate innocence of the petitioners and it would be beyond any stretch of imagination that they were having any deceptive or fraudulent intention at the time they agreed to sale the property.
7. It is settled law that no person shall be permitted to take recourse to criminal prosecution to earn fruits against a time barred civil dispute. Though it is a matter to be decided in Titile Suit No.104 of 2008 but the petitioners feel it necessary to place before this Court that the complainant or any other plaintiffs had never tendered balance consideration at any point of time and it is incorrect to say that accused persons/petitioners kept postponing the execution of sale deed. According to complainant filing of a petition by Dr. Sabita Gulati claiming her share in the property has created a reason for them to believe that the accused persons/petitioners had deceptive intention since the very beginning and they have cheated him do not attract ingredients of any of the offence for which this case bas been lodged. The liberty of innocent citizen cannot be curtailed and they shall not be harassed in a malicious prosecution which the complainant has launched against the petitioners by filing present case.
8. The police has submitted uptodate case diary and the evidence collected till the date is nothing but repetition of the contention made in the complaint. Again it would not be out of place to mention that many more facts have been concealed by the complainant and his witnesses in their statement given before the police. It is very much clear that the petitioners had never suppressed any fact relating to subject property and they have not committed any offence and therefore, the F.I.R. as well as further criminal prosecution of the petitioners arising out of Dhanbad (Bank More) P.S. Case No. 621 of 2012 is liable to be quashed. The petitioners relied upon the following judgments:
(i) (2006) 6 SCC 669 (Ram Biraji Devi v. Umesh Kumar Singh)
(ii) (2009) 7 SCC 712 (Harmanpreet Singh Ahluwalia v. State of Punjab)
(iii) (2011)13 SCC 412 (Thermax Limited v. K.M. Johny)
(iv) (2009) 15 SCC 429 (Ramesh Dutt v. State of Punjab)
(v) (2005) 1 SCC 568 (State of Orissa v. Debendra Nath Padhi) 5
(vi) (2007) 10 SCC 82 (Sumitbai vs. Paras Finance Co.)
9. On the other hand, learned counsel appearing for the complainant vehemently opposed the arguments and submitted that the F.I.R. cannot be quashed at the stage of investigation. The complainant must be given opportunity to adduce evidence. The quashing of F.I.R. can only be entertained at an exceptional circumstance. The accused persons/petitioners were having deceptive intention when they had given false and incorrect declaration in the said agreement. The declaration made in paragraph 4 and 10 of the agreement are very much relevant which run as under: "4. That the Vendors do hereby declare that they are the absolute and exclusive owners and proprietors of the Schedule 'A' lands and the Schedule 'A' lands are free from all encumbrances, charges, liens, mortgage whatsoever. If any encumbrance of any nature whatsoever comes to light, the Vendors shall be bound to get the same rectified before the Deed of Sale is executed and registered by them in favour of the Purchasers.
10. That if it is found that some other persons are claiming right, title or interest in the Schedule 'A' lands, the Vendors shall have to see that the deed of sale is also executed by them either as Vendors or as consenting witnesses.
SCHEDULE 'A' All that piece and parcel of Raiyati land measuring .42 decimal of Plot No.915, Khata No.80 of Mouza Dhanbad, Mouza No.51, P.O., P.S. and District Dhanbad recorded in Thoka No.1595 of the State of Bihar.
IN WITNESS WHEREOF, the parties hereto have put their respective hands, seals and signatures on the day month and year first above written. "
10. Learned counsel has also referred Section 17 of the Indian Contract Act in which fraud has been defined. It was argued that the active concealment of the fact by one having knowledge or believe of the fact attracts the ingredients of fraud u/s 17 of the Indian Contract Act. The accused persons/petitioners were knowing well that their sisters had not actually relinquished their share in the property and they had given incorrect information by saying that the sisters had been satisfied by giving them valuables and dowry in their marriage. If the petitioners had not 6 induced the complainant into believing that female coowners i.e. their sisters had relinquished their share in the subject property, the complainant would not have parted with money and he would not had entered into an agreement for sale against subject property. The deceit has well been interpreted by their Lordship in the judgment reported in (2013) 1 SCC
562. It is admitted case of the accused persons/petitioners that they did not file any rejoinder to the petition filed by their sister Dr. Sabita Gulati and they never made any protest. They have not come forward to say that she does not have any right in the property because she had relinquished her share in the property. The subsequent conduct of the accused persons/ petitioners had compelled the complainant to believe that he has been cheated and therefore instant case has been filed in the year 2012 and this is cogent and reliable explanation for the delay in lodging the criminal case against accused persons/petitioners. It was further submitted that the evidence collected by the Investigating Officer and the supervision note copied in the case diary indicate that the accused persons/petitioners have committed the offence alleged and they are liable to be prosecuted. Learned counsel has relied upon the judgments reported in 1999 (2) Supreme Court 42 (Rajesh Bajaj Vrs. State (NCT Delhi), (2009) 11 SCC 737 and (2013) 1 SCC 562 (Ram Chandra Bhagat v. State of Jharkhand)
11. Having heard rival submissions and considering the pleadings it appears that present criminal prosecution vide Dhanbad (Bank More) P.S. Case No. 621 of 2012 dated 20.06.2012 has been launched against the accused persons/petitioners for the reason that no rejoinder by the petitioners against the petition filed by their sister Dr. Sabita Gulati in Title Suit No.104 of 2008 by which she has claimed her share in the property has been filed. It is made clear that said Title Suit No.104 of 2008 has been filed by the complainant and other plaintiffs for specific performance of contract against the accused persons/petitioners for specific performance of contract relating to agreement dated 12.03.1991. Since the petitioners did not make any protest to the claim made by their sister Dr. Sabita Gulati, the complainant had reasons to believe that the petitioners were having deceptive and fraudulent intention from the very beginning and that is why they were not intending to execute deed of conveyance against subject 7 property and kept postponing the issue on one ground or the other and finally after appearance of Dr. Sabita Gulati in the said Title Suit, the subsequent conduct of the petitioners made it transparent that the petitioners had given false declaration. Before the issue raised by the complainant is addressed by this Court, it would be desirable to mention certain admitted averments of the complainant and other plaintiffs made by them by way of filing plaint in Title Suit No.104 of 2008. The relevant paragraph of said plaint are paragraph Nos.7 to 9, 11 to 14, 16, 19 & 22. Instead of reproducing the contention made in those paragraphs, I think that gist of those paragraphs shall serve the purpose. It is contended that the petitioners were in dire need of money to meet their family obligations and requested the complainant to pay Rs.50,000/ on 27.11.1996 and the amount so received by them shall form part consideration/advance against the proposed sale of the subject land. The relation between the complainant and the petitioners were extremely cordial as well as familiar, but complainant did not have opportunity to have a look at the title deed relating to subject property and therefore, he asked them to come with the documents on the next day and by that time he would arrange that sum of Rs.50,000/. Accordingly, on the following day the petitioners along with one Rajiv Ahuja had been to the office of complainant with Photostat copy of the title deed, order of mutation and other documents to which he examined and having trust on the petitioners paid a sum of Rs.50,000/ on 28.11.1996. In the same manner on different occasion the complainant obliged the petitioners by making payment to the petitioners to meet their requirements. The rate of the land was finally decided Rs.25,000/ per katha. The complainant had every knowledge about the application of urban land ceiling act which was enforceable at that point of time and therefore to avoid complications, the execution of deed of conveyance was kept pending. The complainant had also requested the petitioners to give him original current rent receipts and it was handed over to him for the purpose of obtaining permission from the Additional Collector, Dhanbad. It is contended in para 14 though the deal was finalised in or about December, 1986 and the complainant was entrusted with the responsibility to find out as to which would be the most pertinent time to get the sale 8 deed executed and registered. It is also admitted that land transferring scenario during 198687 was ripe with lot of controversy and confusion. So, the complainant and petitioners have jointly decided that the agreement for sale of subject land wold be done at appropriate time. In para 16 of the plaint the complainant admits about the litigation which cropped up between one Birendra Kumar Bhatia and the petitioners because said Birendra Kumar Bhatia had been keeping evil eye to encroach upon the land and he had created a forged document relating to 4.5 decimals of subject land. Again the petitioners reposed full faith and trust to the abilities of the complainant as he was a practicing lawyer at Dhanbad Civil Court and entrusted him to do all necessary efforts to protect the property. Not only that the complainant had also proposed that the expenses incurred for resolving the litigation borne by him shall be considered towards part payment against sale of subject land and it would be adjusted at the time of final deed. In para 22 again the draft agreement was prepared by the complainant himself and it was handed over to the petitioners for giving their consent.
12. The need to mention aforesaid facts has become necessary to assess whether the petitioners were having deceptive and fraudulent intention from the very beginning or not which are basic requirement for application of Section 420 of the Indian Penal Code. Section 415 of the Indian Penal Code reads as follows: "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."
13. The admitted averments and pleadings of the complainant, referred to above, strongly suggest that the petitioners did not have deceptive or fraudulent intention at any point of time. They had very innocently placed all relevant facts and litigation pertaining to subject property before the 9 complainant rather they had reposed full faith and shown trust on the complainant to do every needful in respect of subject property. They did not conceal names and full address of their three sisters. The complainant himself admits that order of mutation passed in favour of the petitioners and their mother as well as rent receipt strengthening the names of sisters were not only shown to to the complainant but it were also handed over to him for all necessary purpose. Therefore, if the petitioners did not file any rejoinder to the petition filed by their sister Dr. Sabita Gulati raising her claim in the subject property solely not sufficient to suggest that they were having deceptive or fraudulent intention from the very beginning when they agreed to sale the subject property in favour of the complainant and other defendants. In this connection their Lordships in the case of B. Suresh Yadav vrs. Sharifa Bee reported in (2007) 13 Supreme Court Cases 107 have held as under: "Held:
While executing the sale deed, the appellant did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute.
For the purpose of establishing the 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. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. This does not mean that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance ..........."
14. In the case of All Cargo Movers (India)(P) Ltd. v. Dhanesh Badarmal Jain reported in (2007) 14 Supreme Court Cases 776 their Lordships has held as under: "16. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but 10 it is also permissible to look into the pleadings of Respondent 1 plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredient therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide 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."
15. If the face value of the averments made in the F.I.R. is taken into consideration, no ingredients of Section 467 or 468 of the Indian Penal Code are attracted. It does not appear that the petitioners had created any forged document for the purpose of cheating. In the case of Suryalakshmi Cotton Mills Ltd. Vrs. Rajvir Industries Ltd. reported in (2008) 13 Supreme Court Cases 678 their Lordships has held as under: "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the wellknown legal principles involved in the matter.
18. It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure should be exercised, but some attempts have been made in that behalf in some of the decisions of this Court as for example State of Haryana v. Bhajan Lal, Janata Dal v. H.S. Chowdhary, Rupan Deol Bajaj v. Kanwar Pal Singh Gill and Indian Oil Corpn. v. NEPC India Ltd.
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into disputed question of fact. It, however, does not mean that documents of unimpeachable 11 character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."
16. In view of the facts and circumstances, referred to above and also on perusal of the complaint it is clear that there was a dispute between the parties in respect of sale and purchase of the subject land. In my view, even if the allegation made in the complaint are accepted to be true and correct, the petitioners cannot be said to have committed any offence either of cheating or of forgery. Neither any guilty intention be attributed to them nor can there possibly be any intention on their part to deceive complainant. It appears that no criminal case is made out by the complainant against the accused persons/petitioners and the statement of the witnesses recorded in the case diary is also on the same direction. I cannot lose sight of the fact that the complainant and petitioners were having cordial relation since the mid of 1980s and they were familiar to each other. The complainant obliged the petitioners by making payment to fulfil their need but towards a part consideration against purchase of subject land. The transactions in respect of subject property had started between the parties since the year 1986 and because of the reasons assigned by the complainant he did not ready for execution of sale deed, for about five years and finally draft agreement was made by him which was executed in the year 1991. Though it is a matter to be decided in the suit filed by the complainant but no document has been placed before me to show that the complainant or the plaintiffs had ever tendered balance consideration amount. The suit for specific performance of contract was filed in the year 2008 i.e. after a lapse of 17 years of the agreement. Even at that point of time the complainant never whispered about the offences 12 alleged in the complaint. Every cosharer has right to make his claim in the property and only because one of the sister who happens to be legal heir of Sukhdev Sachdeva made a claim by making her appearance in the suit filed by the Complainant, it would not be sufficient to say that ingredients of offence of cheating are attracted and the petitioners were having dishonest and fraudulent intention from the very beginning when they entered into an agreement. The complaint has been filed almost 21 years after the said agreement which was reduced into writing between the parties. So, the delay in lodging the complaint is also a sound factor to consider the prayer of the petitioners. It is true, as decided by their Lordships in the case of Trisuns Chemicals Industry v. Rajesh Agarwal reported in (1999) 8 SCC 687 that:
"Quashing of F.I.R. or plaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit."
Even considering that proposition which laid down by their Lordships in the case of Trisuns Chemicals Industry v. Rajesh Agarwal (supra) their Lordships in the case of Ram Biraji Devi v. Umesh Kumar Singh reported in (2006) 6 Supreme Court Cases 669 held in paragraph 11 as under: "11. There cannot be any disagreement to the wellsettled proposition of law that the High Court should exercise its inherent powers in extreme exceptions to quash an FIR or a complaint. The ratio as laid down in Trisuns Chemical Industry case is of no help and assistance to the complainant in the facts and circumstances of the present case. The complaint instituted does not disclose that an offence under Section 420 is made out. Cognizance taken by the Magistrate thereon against the appellants for offences under Sections 406/419/420 and 120B IPC is clearly an abuse of the process of court and interference by this Court is expedient in the interest of justice. This is a case of extreme exception where the High Court ought to have exercised its inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants."
17. If a criminal proceeding initiated only to cause harassment to accused and continuance thereof would amount to abuse of process of 13 court, such criminal prosecution should not be allowed to be continued and the liberty of a citizen cannot be curtailed. They should not be given to the hands of the police for harassment under the garb of investigation. Considering all these aspects and the discussions made above, Dhanbad (Bank More) P.S. Case No. 621 of 2012 dated 20.06.2012 corresponding to G.R. Case No.2456 of 2012 and the criminal proceeding relating to said case pending in the Court of learned Chief Judicial Magistrate, Dhanbad stands quashed. Since Title Suit No.104 of 2008 relating to the subject land is subjudice in Court below, any observation made in this order shall not cause prejudice to any party and the Court shall not feel influenced in disposal of said title suit. Accordingly, this writ petition stands allowed.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated : 10.05.2013 NKC / N.A.F.R.