Chattisgarh High Court
Bilkish Begum vs State Of Chhattisgarh on 16 November, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on : 26.8.2021
Pronounced on : 16.11.2021
WPCR No. 247 of 2021
Bilkish Begum, wife of Mohammad Asad @ Arshad, aged about 45
years, resident of Behind Masjid, Chhotapara, Raipur, District Raipur
(C.G.).
---- Petitioner
Versus
1. State of Chhattisgarh through its Secretary, Ministry of Home
Secretariat, Capital Complex, Mahanadi Bhawan, Naya Raipur.
2. The Station House Officer, Police Station City Kotwali, Raipur (C.G.).
3. Sarik Memon, aged about 45 years, resident of Raman Mandir,
Fafadih, Raipur.
---- Respondents
For Petitioner : Mr. B. P. Sharma, Advocate
For State : Mr. D. P. Singh, Dy. A. G.
For Respondent No. 3 : Mr. Pranjal Agrawal, Advocate
Hon'ble Mr. Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed the instant writ petition under Article 226 of the Constitution of India challenging the First Information Report registered against her by the police station Raipur Kotwali being Crime No. 0071/2021 on 17.3.2021 for commission of offence punishable under Section 420 of IPC.
2. The brief facts, as projected by the petitioner, are that the petitioner is the owner of the house No. 41/160 constructed over the land bearing Khasra No. 870 (part) ad-measuring area 2300 sq. ft. situated at Patwari Halka No. 106A/46, RI Circle Raipur, Maulana Abdul Rauf Ward No. 41, Baijnathpara, Raipur, which she has purchased from its erstwhile owner - Smt. Ahmadi Mustak vide registered sale deed 2 dated 24.09.2014 for valuable consideration of Rs. 73,00,000/-.
3. The petitioner has entered into an agreement on 07.06.2017 with respondent No. 3 - Sarik Memon. The relevant terms of the agreement (Annexure P-3) are extracted below:-
bdjkjukek 01- ;g fd i{kdkj dzekad ,d ls ge o LokfeRo dh vkcknh Hkwfe fufeZr Hkwfe e; edku tks okds ekStk jk;iqj [kkl cStukFk ikjk ekSykuk vCnqy jmQ okMZ dzekad 41 i-g-ua- 106] v&46] jk-fu-ea- jk;iqj rglhy o ftyk jk;iqj ¼N-x-½ esa fLFkr gS A ftldk vkcknh [kljk uacj 870 dk Hkkx uxj ikfydk fuxe uacj 41@160&161 jdck 2300 oxZQqV ftlesa 1600 esa dPpk dosyh iksl [kijSy okyk yxHkx 50 o"kZ ls vf/kd iqjkuk jgoklh edku gS vkSj 700 oxZQqV esa [kqyk vkaxu gS A 02- ;g fd mijksDr Hkwfe ,oa edku dks fodz; djus dk lkSnk 80]00]000@& :i;s ¼v{kjh vLlh yk[k :i,½ esa lkSnk r; fd;k x;k gS ftlesa dzsrk }kjk fodzsrk ds [kkrs vkbZlhvkbZlhvkbZ cSad [kkrk dzekad 134701504545 esa vkj-Vh-th-,l- fd;k x;k ftldh izkfIr dh vfHkLohd`fr fodzsrk ds }kjk dh tkuh gSA 03- ;g fd] fodzsrk }kjk fdlh dkj.kol lkSnk fujLr fd;k tkrk gS rks fodzsrk dzsrk ds [kkrs esa 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ ,oa gjtkuk ds :i esa :i;s 10]00]000@& ¼v{kjh nl yk[k :i;s½ dqy 50]00]000@& ¼v{kjh ipkl yk[k :i;s½ tek dj ds lkSns dks lekIr dj ldrk gS ftlesa nksuksa i{kdkj iw.kZ:i ls lger gSaA jde tek djus mijkar lkSnk Loeso lekIr gks tk;sxkA 04- ;g fd] izFke i{kdkj fodzsrk dk eSaXek gkmflax Qk;usal ls mDr Hkwfe edku ds fy;s 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ dk yksu fy;k x;k Fkk ftldh fd'r fujarj tek dh tk jgh gS ,oa mDr edku dks eSXek gkmflax Qk;usal ls mudh jkf'k tek djkdj dzsrk ds i{k esa nks ekg mijakr iSls okil ugh djus dh fLFkfr esa 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ izkIr dj jftLVªh dh dk;Zokgh dh tk;sxh A 05- ;g fd] fodzsrk }kjk leLr nLrkost iznku djus ij jftLVªh dh dk;Zokgh djrs le; dzsrk ls 'ks"k jkf'k 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ izkIr djus dk vf/kdkj gksxk A
4. Learned counsel appearing for the petitioner would submit that the petitioner has obtained loan of Rs. 39,65,617/- from Magma Housing Finance Ltd., Raipur. The said loan is payable in 20 years by making payment of installment of Rs.46,864/-per month, and in case the petitioner fails to repay the loan amount, the Finance Company may proceed against her as per the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act"). He would further submit that due to ongoing Covid-19 pandemic situation, the financial position of the petitioner is 3 deteriorating, therefore, under such circumstances she has approached Sarik Memon, respondent No. 3 and entered into an agreement to sell the house for an amount of Rs. 80 Lacs and out of which an amount of Rs. 40,00,000/- has been paid to her through RTGS. It has been further contended that Rs. 40 Lacs obtained by the petitioner from respondent No. 3 has been utilized by her for unburdening herself from further financial liability to secure the possession of the said house. It has been further contended that the petitioner has come to know through her husband that respondent No. 3 carries on the business of financing and since the petitioner and respondent No. 3 both belong to same community, the petitioner's husband has believed on the impression given by respondent No. 3 and the petitioner through her husband has started making payment of different amounts as and when obtained by carrying out the business of sale of scrap and sale/purchase of old vehicles. The petitioner is having whatsapp images of different dates certifying payment of amount by petitioner's husband from his mobile to mobile number of respondent No. 3. From bare perusal of the whatsapp images, it would be evident that certain payment has been made. It has been further contended by learned counsel for the petitioner that the petitioner has made various payments through her husband to respondent No. 3 including payment of Rs.1,00,000/- while selling and purchasing one Bolero vehicle. He would further submit that the petitioner has made payment of Rs.88,00,000/- to respondent No. 3 and respondent No. 3 has already received the principal amount but interest amount is yet to be paid.
5. Thus, against the total payment of Rs.40,00,000/-, respondent No. 3 has already received Rs.88,00,000/-, which is double the amount paid to the respondent No. 3. Thereafter, the petitioner has received a legal notice dated 3.7.2020 sent by respondent No. 3 through his counsel calling upon the petitioner to register the sale deed in favour of respondent No. 3 as well as he will file a civil suit against the petitioner for specific performance of contract. On receipt of said notice, the petitioner through her counsel has given reply making various averments including of obtaining blank cheques etc. from the 4 petitioner's husband and, thereafter, police has issued notice under Section 91 of Cr.P.C. to the petitioner, wherein she has submitted the factual matrix of the case, still FIR has been registered against her.
6. Learned counsel for the petitioner would further submit that the petitioner has also filed the application under Section 438 of Cr.P.C. before the trial Court, however, the same has been rejected vide order dated 24.3.2021. He would further submit that registration of FIR is against the principle of law laid-down by the Supreme Court in the matter of State of Haryana v. Bhajanlal1 and also the judgment of the Supreme Court in the matter of Vineet Kumar v. State of UP2. He would further submit that offence under Section 420 of IPC is punishable under Section 415 of IPC and as per provisions contained in Section 415 IPC, it is clear that unless and until, there is premeditated design to the person concerned since inception to cheat, no offence of cheating can be registered.
7. Learned counsel for the petitioner would further submit police has searched the petitioner, who is pardanasheen lady or observing parda in general public which is violation of petitioner's fundamental right, therefore, registration of FIR against the petitioner itself amounts to abuse of process of court and also contrary to the parameters laid down in this regard. He would further submit that since it is a purely civil dispute matter and notices have already been issued for filing of suit for specific performance of the contract and since limitation as prescribed for three years has already been elapsed, the present FIR has been filed, which is overcome of the right to file civil suit as it has been barred by limitation. He placed reliance upon the judgment of the Supreme Court in the matter of Lalita Kumari Vs. Government of Uttar Pradesh & Others 3 in which (in paragraph 120.6), it has been observed that registration of FIR, without holding preliminary enquiry, is void & illegal and, therefore, First Information Report registered against her by the police station Raipur Kotwali being Crime No. 0071/2021 on 1 1992 Suppl (1) SCC 395 2 (2017) 13 SCC 369 3 (2014) 2 SCC 1 5 17.3.2021 for commission of offence punishable under Section 420 of IPC deserves to be quashed.
8. This Court vide order dated 12.5.2021 has granted interim protection in favour of the petitioner restraining the respondents No. 1 & 2/ State Authorities to proceed further with the FIR dated 17.03.2021 (Annexure P/1).
9. On the other hand, the respondents No. 1 & 2/State has filed the return mainly contending that there is sufficient, incriminating evidence and material available against the petitioner, therefore, FIR has been registered. Learned counsel for the State would further submit that from bare perusal of the FIR, a congnizable offence under Section 420 of IPC is made out against the petitioner, therefore, the offence under Section 420 IPC has rightly been registered. It has further been contended by the State that in view of the judgment of the Supreme Court in the matter of Lalita Kumari (Supra), the police authorities are duty bound to register an FIR under Section 154 of Cr.P.C. and investigate the matter, if congngizable offence discloses commission of offence under Section 420 of the IPC. He would further submit that the grounds raised by the petitioner in her defence cannot be raised while hearing the petition under Section 482 of the Cr.PC. and at this stage also, the evidence cannot be appreciated and the petitioner is at liberty to raise all these grounds at the time of trial. He would further submit that no ground for interference by this Court under Article 226 of the Constitution of India is made out, therefore, this petition is liable to be dismissed.
10. Learned counsel for the respondent No. 3 would submit that sale agreement dated 07.06.2017 has been executed between the petitioner and the respondent No. 3 for Rs. 80,00,000/- (Rupees Eighty Lakhs) and respondent No. 3 has paid a sum of Rs. 40,00000/- (Rupees Forty Lakhs) as part payment as per requirement of the sale agreement and he is ready and willing to pay the rest of the amount for executing the same in respect of the House No.041/160 constructed over the land bearing No. 870 admeasuring 6 2300 sq.ft. situated at Patwari Halka No. 106A/46 RI Circle, Raipur, but, the petitioner acting in the most fraudulent and dishonest intention after executing the sale agreement, has demolished the aforesaid house for which the sale agreement was executed, which proves the ill faced mind and dishonest intention of the petitioner in not executing the sale agreement and violating the sale agreement. He would further submit that in the case of the petitioner, the house for which the sale agreement was executed has been demolished by the petitioner which shows not only cheating simpliciter but also dishonest inducement to the respondent No. 3, who is deceived to get the property in his favour. He would further that as per clause 4 of the agreement dated 07.06.2017 executed between petitioner & respondent No. 3, after depositing the wholesome loan amount, the sale deed will be executed in favour of respondent No. 3 within a period of two months but till now the sale agreement has not been executed despite lapse of more than three years which shows the sheer dishonest intention of obtaining money from the respondent No. 3 and utilizing it for personal gains. Learned counsel for the respondent No. 3 would further submit that FIR has rightly been registered against the petitioner as the petitioner herself had purchased the house No. 41/160 constructed over the land bearing Khasra No. 870 (part) ad-measuring area 2300 sq. ft. situated at Patwari Halka No. 106A/46, RI Circle Raipur, Maulana Abdul Rauf Ward No. 41, Baijnathpara, Raipur, and there is no dispute that the said house was purchased as per the market value of the house and not the value of the plot. It has specifically been contended that the petitioner has suppressed the material fact that she has obtained the loan amount of Rs. 39,65,617/- from Magma Housing Finance, which was required to be paid by the petitioner and by virtue of the said sale agreement, the petitioner obtained a sum of Rs. 40 lakhs from respondent No. 3 for unburdening herself from the loan amount and then further registering the aforesaid house. But the petitioner never tried to unburden herself from the loan and till now she did not pay any amount towards the loan for which the respondent No. 3 has paid Rs. 40 Lakhs which shows the clear intention of the petitioner in cheating the respondent No. 3. It has been denied by the learned 7 counsel for the respondent No. 3 that the petitioner has given an amount of Rs. 88 Lakhs and this averment is nothing to do but with an intention to mislead this Court, as such, the registration of FIR is legal and justified. It has also been contended by learned counsel for the respondent No. 3 that the petitioner has suppressed the fact that at present the house, for which the sale agreement was executed, is not in existence which is also stated in the legal notice sent by respondent No. 3 which he was forced to send as the petitioner with her dishonest intention was by various means was trying to avoid the execution of the sale agreement. He would further submit that the petitioner has come before this Court with unclean hands concealing the major facts, therefor criminal complaint cannot be quashed mainly on the ground that the allegation appears to be of a civil nature. He would further submit that the petitioner is a habitual offender and there are several cases under Section 138 of Negotiable Instruments Act named as "Citi the stylo Shop Vs. Bilkish Begum being Case No. 3630/2019 pending before Judicial Magistrate First Class, Raipur and another case i.e. Anand Agency Vs. Rab Enterprises and another (belonging to husband of the petitioner) being case No. 1649/2019 is also pending before Judicial Magistrate First Class, Raipur, therefore he would submit that the present writ petition is liable to be dismissed.
11. Learned counsel for the petitioner has filed rejoinder to the return filed by the respondents 1 & 2/State & respondent No. 3 taking stands which have already been taken in the writ petition. He would submit that respondent No. 3 is entitled to get Rs. 50 lakhs, if a properly constituted Civil suit is filed and the petitioner and her husband are different legal identities and for the act of one, another cannot be charged. He would submit that as per Section 54 of the Evidence Act the criminal antecedents/bad character are not relevant for decision in the matter, particularly in a criminal case. He would further submit that respondent No. 3 is entitled for Rs.50,00,000/- and for recovery of said amount, he ought to have filed a properly constituted civil suit and if so advised, he may file a suit for specific performance of contract. He would further submit that this is a case 8 of complex nature in which the rights and liability of the parties ought to have been adjudicated in a duly constituted civil suit and process of abusing criminal law cannot be permitted when intention of the person concerned is to recover the amount under a threat of imprisonment etc., which is otherwise not recoverable in a properly constituted civil suit. He would submit that since no case for commencement of offence of cheating has been made out against the petitioner, therefore, the FIR registered against the petitioner deserves to be quashed. He placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Rajiv Thapar v. Madan Lal Kappor reported in (2013) 3 SCC 330 and judgment of the High Court in the matter of Vesa Holdings (P) Ltd. v. State of Kerala 4 in support of his submissions. He would further submit that the non- registration of sale deed, even after receipt of advance amount of Rs.40 lakhs and non-payment of Rs. 50 lakhs to the end of the agreement is cheating or not and that cannot be termed as intention to cheat as per the judgment passed by the Hon'ble Supreme Court in the matter of Sushil Setthi Vs. State of Arunachal Pradesh reported in (2020) (3) SCC 240 and would refer to the paragraph 7.2 7.4., 7.6 & 7.7 which reads as follows :-
"7.2 In vesa Holdings (P) Ltd. [Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498], it is observed and held by this Curt 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. It is further observed and held that 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. It is further observed and held that 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 IPC can be said to have been made out. It is further observed and held that the real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. 7.4 In V.Y. Jose [V.Y. Jose v. state of Gujarat, (2009) 3 SCC 78:, it is observed and held by the Supreme Court 4 (2015) 8 SCC 293 9 that one of the ingredients of cheating is in existence of fraudulent or dishonest intention of making initial promise or existence thereof, from the very beginning of formation of contract. It is further observed and held that it is one thing to say that a case has been made out for trial and as such criminal proceedings should not be quashed, but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has bee made out at all.
7.6 In Joseph Salvaraj A. v. State of Gujarat [Josheth Salvaraj A. v. State of Guarat, (2011) 7 SCC 59, it is observed and held by the Supreme Court that when dispute between the parties constitutes only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking coginzance of the offence has been made out.
7.7. In Inder Mohan Goswami v. State of Uttaranchal, reported in (2007) 12 SCC 1, it is observed and held by the Supreme Court that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. It is further observed and held by this Court that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. It is further observed and held that inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself."
12. Relying upon the judgments, learned counsel for the petitioner would submit that this Court has inherent power under Section 482 CrPC to quash the criminal proceedings/FIR, as it is abuse of process of law. To substantiate his submissions, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in the matter of M. Suresh v. State of Andhra Pradesh reported in (2018) 15 SCC 27 wherein Hon'ble Supreme Court has quashed the criminal proceedings in respect of failed sale transaction like the present case. Counsel for the petitioner would submit that contention of the respondent that since the property of the petitioner has been 10 demolished, the offence of cheating is made out as a fallacious argument. The petitioner has drawn the attention of this court to the definition of valuable security in Section 30 of the IPC, which is extracted below :
"30. "Valuable security", - The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right"
13. Respondent No. 3 has also given written synopsis reiterating the submission made earlier in the return and would submit that from bare perusal of the FIR, it is clear that the offence under Section 420 of IPC case is, prima facie made out against the petitioner. He would submit that there are large number of cases where the criminal law and civil law run side by side, therefore, initiation of criminal law in motion cannot be said to be abuse of process of law and he would rely upon the judgments of Hon'ble Supreme Court in the matter Pratibah Rani v. Suraj Kumar reported in (1985) 2 SCC 370, Kamaladevi Agarwal v. State of West Bengal reported in (2002) 1 SCC 555; Indian Oil Corporation v. NEPC India Limited and Others reported in (2006) 6 SCC 736; R. Kalyani v. C Mehta and others reported in (2009) 1 SCC 516; Vijaynder Kumar v. State of Rajasthan reported in (2014) 3 SCC 389, K. Jagdish v. Udaya Kumar G.S. and Another reported in (2020) 14 SCC 552, Google India Private Limited v. Visaka Industries reported in (2020) 4 SCC 162 and M/s.Niharika Infrastructure (P) Ltd. Vs. State of Maharashtra reported in AIR 2021 SC 1918
14. I have heard learned counsel for the parties and perused the material available on record.
15. For better understanding of the factual matrix, it will be expedient for this Court to extract the contents of the FIR, which reads as under:-
" eS a jeu eaf nj okMZ QkQkMhg Fkkuk xat jk;iq j N-x- dh fuoklh 11 gw a fd esj s n~ o kjk 07-06-2017 dks Jherh fcyfdl csx e ifr eksg - vjln fuoklh NksV kikjk efLtn ds ihNs jk;iq j dh vkcknh Hkwf e tks fd cS t ukFk ikjk ekS y kuk vCnq y jmQ okMZ dz e kad 41 iVokjh gYdk uac j 106 v 46 jk-fu-ea- jk;iq j esa fLFkr gS ftldk vkcknh [kljk uac j 870 dk Hkkx uxj fuxe edku uac j&41@160 jdck 2300 oxZ fQV ftles a 1600 oxZ fQV ij dosy wi ks' k [kijS y ;q D r yxHkx 50 o"kZ iq j kuh jgoklh edku gS ftl lai Rrh dks eq > s vLlh yk[k :i;ksa es a fodz ; djus dk ndjkjk dj pkyhl yk[k :i;s 08-06-2017 dks RTGS ds ek/;e ls iz k Ir fd;k ,oa Jhefr fcyfdl csx e ds n~ o kjk fnukad 07-06-2017 dks bdjkj ukek fu"ikfnr fd;k x;k mDr bdjkj'kq n k lai Rrh dks eS X ek gkmflax Qk;usl dai uh ls Qk;usl fd;k x;k Fkk Qk;usl esa jkf'k tek dj dkxtkr ykus ij mDr lai Rrh dk 'ks" k jkf'k Hkq x rku djus ds ckn esj s i{k esa jftLVª h djok;k tkuk Fkk ftuds n~ o kjk iS l k okil ugh djus rFkk esj s i{k es a jftLVª h ugha djkus esj s lkFk /kks[ k/kM+h djus dh ckor Jheku iq f yl v/kh{kd egksn ; dks f'kdk;r fd;k x;k Fkk f'kdk;r vkosn u udy tS y gS iz f r Jheku iq y hl vf/k{kd jk;iq j N-x- fo'k; & Jherh fcydhl csx e ifr eks- vln mQZ vj'kn n~ o kjk lai Rrh dk lkS n k dj jkf'k 40]00]000@& :i;s ¼v{kjh jkf'k pkyhl yk[k :i,½ iz k Ir dj cS u kek iat h;u u djrs gq , /kks[ kk/kM+h djus ,oa jkf'k xcu djus dh fjiksV Z A egksn ;] fuosn u gS fd eS a] lkfjd ese u vkRet jlht ese u irk jeu eaf nj okMZ jk;iq j ¼N-x-½ ds fuoklh gw a rFkk Jherh fcydhl csx e ifr eks- vln mQZ vj'kn fuoklh NksV kikjk efLTkn ds ihNs jk;iq j Fkkuk dksr okyh rg- o ftyk jk;iq j ¼N-x-½ ds n~ o kjk vius gd ,oa LokfeRo dh vkcknh Hkwf e fufeZ r edku e; Hkwf e tks fd okds ekS d s cS t ukFkikjk ekS y kuk vCnq y jmQ okMZ dz e kad 41 i-g-ua- 106 v&46 jk-fu-ea- jk;iq j rg- o ftyk jk;iq j es a fLFkr gS ftldk vkcknh [kljk uac j 870 dk Hkkx uxj fuxe edku uac j 41 @160 jdck 2300 oXkZ fQV ftlesa 1600 oxZ QhV ij dPpk dosy w iks' k [kijS y ;q D r yxHkx 50 o"kZ iq j kuk jgoklh edku gS ,oa 700 oxZ QhV [kq y k vkax u gS ftls Jherh fcydhl csx e ifr ek-s vln mQZ vj'kn dks :i, dh vko';drk gksu s ij mDr of.kZ r lai fRr dks eq > s fodz ; 80]00]000@& ¼v{kjh jkf'k vLlh yk[k :i,½ es a fodz ; djus dk djkj dj jkf'k 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ 12 fnukad 08@06@2017 dks RTGS ds ek/;e ls iz k Ir dj esj s i{k esa l'krZ bdjkjukek fnukad 07@06@2017 dks jk;iq j U;k;ky; esa fu"ikfnr fd;k x;k Fkk mDr bdjkj'kq n k lai fRr tks fd eS X ek gkmflax Qk;us al esa jkf'k tek djkdj eq > s 2 ekg dh vof/k es a mDr lai w. kZ jkf'k okil fd;k tkuk Fkk fdar q muds n~ o kjk eq > s uk jkf'k okil fd;k u gh esj s i{k esa mDr of.kZ r lai fRr dks cS u kek iat h;u gsr q dksb Z rRijrk fn[kkbZ gS mDr of.kZ r bdjkj'kq n k liaf Rr dk 'ks" k fodz ; Qy jkf'k dk Hkq x rku dj vius i{k es a cS u kek iat h;u djokus gsr q fof/kd :i ls vf/kdkjh gks pq d k gw a blds ckotwn Hkh vkt fnukad rd Jherh fcydhl csx e ifr ek-s vln mQZ vj'kn n~ o kjk mDr bdjkj'kq n k lai fRr dk cS u kek iat h;u esj s i{k es a djkus rRijrk ugha fn[kkbZ xbZ gS esj s n~ o kjk Jhefr fcydhl csx e ifr eks vln mQZ vjln fujar j vki uksf Vlh ls lai dZ dj mijksD r bdjkj'kq n k lai fRr dk cS u kek iat h;u djus gsq r q dgk tkrk jgk gS fdar q Jherh n~ o kjk fujar j VkyeVksy fd;k tkrk jgk gS rFkk 5& 6 ekg iwo Z mijksD r bdjkj'kq n k lai fRr ij fufeZ r edku dks /oLr dj fn;k x;k gS ftlls eq w> s ;g ;dhu gks x;k gS fd mijksD r fodz sr k n~ o kjk iz k jaH k ls "kM+; a= jprs gq , lai fRr eS X ek gkmflax Qk;usl dai uh gksu s dh ckr dgdj eq > s {ky ,oa diViwo Z d 40]00]000@& :i;s ¼v{kjh pkyhl yk[k :i,½ iz k Ir djrs gq , ,Dr lai fRr dk cS u kek iat h;u esj s i{k esa djus esa fgykgokyk fd;k tk jgk gS mijksD r fodz sr k n~ o kjk esj s lkFk fd, x, Ny diV ,oa /kks[ kk/kMh dh fjiksV Z djrk gw a U;k;ksf pr dk;Z o kgh fd;k tkosA "
16. Learned counsel for respondent No. 3 would submit that from bare perusal of the FIR, it is quite clear that the respondent No. 3 has narrated the conduct of the petitioner that how he has been cheated by the petitioner, by demolishing the house for which the agreement was executed and she has already received the amount of Rs. 40,00,000/-. This shows the prima facie conduct of the petitioner how she has cheated the respondent No. 3.
17. On the basis of material placed on record, the following points required to be determined by this Court are:-
(i) whether on given factual fact and circumstances of the case the criminal proceedings initiated by the respondent No. 3 are liable to be 13 quashed by this Court or not ?
(ii) Whether the writ Court while hearing the petition under Article 226 of the Constitution of India or 482 of Cr.P.C. can consider the defence of the petitioner to quash the criminal proceedings initiated against the petitioner.
18. With regard to point No. 1, learned counsel for the petitioner would submit that since it is a purely contractual civil dispute and coupled with the fact that the respondent No. 3 has already issued notice (Annexure P/6) on 03.07.2020, therefore, subsequent filing of complaint before the Police and registration of FIR is nothing but an abuse of process of law. If this Court sees the contents of the notice Annexure P/3, it can be very well seen that the respondent No. 3 has also issued notice for initiating criminal proceeding as well as initiating civil proceedings by filing suit for specific performance of the Contract, therefore, contention of the learned counsel that the petitioner has already initiated proceeding for filing of taking civil remedy and then turning to criminal proceeding is incorrect.
19. From bare perusal of agreement dated 07.06.2017, it is crystal clear agreement was executed for sale of house and land at the cost of Rs. 80 lakhs and for that he has already been taken Rs. 40 lakhs when the house has been demolished after execution of the agreement therefore, it cannot be said that the house, whose possession has to be given as per agreement has been demolished, which is a valuable asset as defined under Section 30 of IPC and thus, respondent No. 3 is being deprived of from the house intentionally, therefore, prima facie, it can be presumed that petitioner has cheated the respondent No. 3 by demolishing the house, though she has already received the amount of Rs. 40 lakhs in the year 2017 itself and has not executed the sale deed. Even otherwise the Hon'ble Supreme Court in Case of Priti Saraf and another v. State of NCT of Delhi and Anr5 has held that where the criminal remedy and civil remedy are available in any case as there is no bar to proceed in the criminal remedy as held in paragraph 32 of the said judgment, which reads thus:-
5AIR 2021 SC 1531 14 "32. In the instant case, on a careful reading of the complaint/FIR/Charge-sheet, in our view , it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of of the offences under Section 406 and 420 IPC cannot be said to be absent on on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial.
Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings."
33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors.(supra) :-
"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the 15 threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]"
20. The judgment cited by the learned counsel for the petitioner in case of Sushil Setthi (supra) is not applicable to the facts of the present case as there is no such averment made in the FIR as well as complaint against the appellant and there was a dispute with regard to supply of inferior quality of material in contra mission with the provision of contract with stipulates the quality of Nickel and cromium to be used whereas in the case at hand the complainant/respondent No. 3 has specifically averred that in his complaint, on the basis of which, FIR has been registered is that the respondent No. 3 has requested the petitioner to execute the sale deed after making payment of Rs.40 lakhs but he has avoided the same and after expiry of six months, she has demolished the said house, which prima facie shows malafide intention of the petitioner as she fraudulently taken the said amount of Rs. 40 lakhs from respondent No. 3 to clear her financial liability but her intention was not to execute the sale deed therefore prima facie the offence for committing a cheating on respondent No. 3 is made out against the petitioner as there is sufficient material available on record for establishing the commission of offence under Section 420 of IPC against the petitioner.
21. The contention of learned counsel for the petitioner that registration of FIR without conducting preliminary enquiry is against the judgment of Hon'ble the Supreme Court in case of Lalita Kumari (Supra), therefore, FIR is liable to be quashed, is incorrect in view of the subsequent judgment passed by Hon'ble the Supreme Court in case of State of Talangana Vs. Managipet reported in 2019 (19) SCC 87 wherein the Hon'ble Supreme Court has held in paragraph 32 which is extracted below:-
"32. The said judgment does not help the learned counsel for the Accused Officer. The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of 16 each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari.
33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the Accused Officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court reported as State of Haryana v. Bhajan Lal17 wherein, this Court held inter alia that where the allegations made in the FIR 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 and also 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.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of 17 1992 Supp (1) SCC 335 information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient."
22. Thus, there is no illegality in registration of FIR against the petitioner.
Accordingly, point No. 1 is decided against the petitioner.
23. Now, the point No.2, learned counsel for the petitioner would submit that instead of Rs.40 lakhs, he has already paid Rs.88 lakhs to respondent No. 3 in view of the business transaction executed between the petitioner's husband and respondent No. 3, despite this she is facing criminal trial, which is nothing but an abuse of process of law.
24. Per contra, learned counsel for respondent No. 3 would submit that this is a defence and this cannot be examined by this Court while hearing the petition under Article 226 of the Constitution of India or 17 petition under Section 482 of the Cr.P.C. and it requires thread baring/ marshilling of evidence, which can only be done before the trial Court.
25. Hon'ble the Supreme Court in Kaptan Singh Vs. The State of Uttar Pradesh & others6, has held as under:-
"9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/ inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied 6 Criminal Appeal No. 787 of 2021 (decided on 13.08.2021) 18 on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove.
9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C."
26. From the above-stated legal position, it is quite clear that the defence taken by the petitioner, cannot be taken into consideration while hearing the petition under Article 226 of the Constitution of India. Thus, the point No. 2 is also decided against the petitioner.
27. Learned counsel for respondent No. 3 would submit that this Court in exercise of its power under Article 226 of the Constitution of India, High Court in rarest of rare cases only may quash the criminal proceedings against the person concerned, which is not the case in hand. He would rely upon the judgment of Hon'ble the Supreme Court in the matter of M/s. Neeharika Infrastructure (P) Ltd. (supra), wherein the Supreme Court has held that the while exercising the power under Article 226 of the Constitution of India, the Court has to act cautiously before proceeding to quash a criminal proceedings in respect of the offence and in rarest of rare case, this can be done. This is not a case in hand. Hon'ble the Supreme Court 19 has held at para 80 which is as under:-
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the 20 conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps"
either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the 21 application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
28. In view of above, this Court cannot quash the FIR registered against the petitioner by the police station Raipur Kotwali being Crime No. 0071/2021 on 17.3.2021 for commission of offence punishable under Section 420 of IPC at this initial stage of investigation.
29. In view of what has been discussed, the present writ petition (criminal) is liable to be and is hereby dismissed. The interim order passed by this Court earlier stands vacated. The Investigating Authority is directed to proceed further, in accordance with law, without being influenced by any of the observations made by this Court while deciding this writ petition (criminal). It is made clear that this Court has not expressed anything on the merits of the case the contents raised either by petitioner or respondents are left open and trial court will decide its authenticity or correctness by examining the evidence, documents and materials on record. The facts have been considered for adjudication of the present case only, which will not be baring effect. The Investigating Authority will investigate the matter and upon collection of evidence material, the matter may be examined by the investigating authority or by the Court without being influenced from any observation made by this Court.
30. Accordingly, the instant petition is dismissed. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Amita