Uttarakhand High Court
Manish Kumar Agarwal And Others ... vs State Of Uttarakhand And Others on 10 September, 2020
Equivalent citations: AIRONLINE 2020 UTR 597
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 559 of 2020
Manish Kumar Agarwal and others .....Petitioners
Vs.
State of Uttarakhand and others .....Respondents
Present:-
Ms. Neetu Singh, Advocate for the petitioners.
Mr. V.K. Gemini, D.A.G for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Instant petition is preferred for quashing of Charge- Sheet No. 117 of 2018 dated 29.08.2018, in Case Crime No. 217 of 2018, under Sections 406, 420 and 506 IPC, Police Station Kotwali-Bahadrabad, District Haridwar and also to quash the entire criminal proceedings of Criminal Case No. 17 of 2019, State Vs. Manish Kumar Aggarwal and others, pending in the court of learned Judicial Magistrate IInd Haridwar (for short "the case")
2. Heard learned counsel for the parties through video conferencing.
3. The case is based on an FIR lodged on 17.10.2017 by the respondent no.3, the informant. According to it, the informant is an old and senior citizen. He saw an advertisement, on Aastha T.V. channel of Eminent Infra Developers Private Limited, about it's a project of Arogyam Group Housing Project near Patanjali Yogpeeth Haridwar. He spoke to the petitioners, who showed him a brochure and assured him that they are developing residential and commercial flats, after proper approval. They also assured that any person, who books the flat would get 12% assured return. Believing the statements given by the petitioners as true, the 2 informant booked a flat in his and his daughter's name and in all paid Rs.16.75 lakh. But, according to the FIR, neither possession of the flat was given to the informant nor was he paid any 12% amount as assured by the petitioners. When contacted, it was revealed that the petitioners had no due permissions. Further, when request was made to the petitioners, they did not pay the money and threatened the informant. It is this FIR, in which, after investigation charge-sheet has been submitted against the petitioners. Cognizance taken and the petitioners have been summoned, but they are not appearing in the case.
4. Learned counsel for the petitioners would argue that the dispute between the parties is civil in nature and it has been settled by the Real Estate Regulatory Authority Dehradun (for short "RERA"), and the petitioners have been directed to pay certain amount to the informant, which they are paying. It is argued that if the criminal case is allowed to proceed, it would not serve any useful purpose; the chances of conviction would be bleak. Therefore, it is argued that this civil dispute should be given a quietus and the proceedings of the case ought to be quashed under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code"). In support of her contention, learned counsel placed reliance on the principles of law as laid down in the cases of Govind Prasad Kejriwal Vs. State of Bihar and another 2020 SCC Online SC 114, Commissioner of Police and others Vs. Devender Anand and others 2019 SCC Online SC 996 and of Chandran Ratnaswami Vs. K.C. Palanisamy & Others (2013) 6 SCC 740.
5. In the case of Govind Prasad Kejriwal (supra), the Hon'ble court under the fact of the case held that " However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings 3 initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not. As observed hereinabove, the dispute between the parties can be said to be purely of a civil nature. Therefore, this is a fit case to quash and set aside the impugned criminal proceedings."
6. In the case of Commissioner of Police and others, the Hon'ble Supreme Court observed that "The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed".
7. In the case of Chandran Ratnaswami (supra), a dispute was settled by Company Law Board, but concealing this fact, a complaint was filed. The matter was investigated, a closure report was filed and further actions were taken in that case. The Hon'ble Supreme Court under those facts held as hereunder:-
"60. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order1, in our opinion, the same could not be sustained in law."
8. On the other hand, on behalf of learned State counsel, it is argued that it is a case, which bears an element of criminality; it is not a case of buyer and seller simpliciter; the petitioners induced the informant to deliver the money for purchase of the flats whereas, they had no approvals when they took money. It is
1. K.C. Palanisamy v. Chandran Ratnaswami, Writ Appeal No. 517 of 2013, order dated 22-3-2013 (Mad) 4 argued that even today, the petitioner did not have any approvals from the concerned Haridwar and Roorkee Development Authority (H.R.D.A.). It is also argued that decision of RERA supports the case because RERA has decided civil aspect of the matter and criminal aspect may be seen in the instant case.
9. It is no rule that if a case is civil in nature, it cannot in any probability be proceeded under criminal law. It is true that if a case has no element of criminality, the criminal prosecution would definitely be an abuse of process of court. In the case of Indian Oil Corporation Vs. NEPC India Ltd. and others, (2006) 6 SCC 736, the Hon'ble Court summed up the principles and exercise of jurisdiction under Section 482 of the Code and held as hereunder:-
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre2 , State of Haryana v. Bhajanlal3, Rupan Deol Bajaj v. Kanwar Pal Singh Gill4, Central Bureau of Investigation v. Duncans Agro Industries Ltd.5, State of Bihar v. Rajendra Agrawalla6, Rajesh Bajaj v. State NCT of Delhi7, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.8 , Hridaya Ranjan Prasad Verma v. State of Bihar9, M. Krishnan v. Vijay Singh10 and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque11. The principles, relevant to our purpose are:-
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
2. (1988) (1) SCC 692 : 1988 SCC (Cri) 234
3. 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426
4. (1995) 6 SCC 194 : 1995 SCC (Cri) 1059
5. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045
6. (1996) 8 SCC 164 : 1996 SCC (Cri) 628
7. 1999 (3) SCC 259 : 1999 SCC (Cri) 401
8. (2000) 3 SCC 269 : 2000 SCC (Cri) 615
9. (2000) 4 SCC 168 : 2000 SCC (Cri) 786
10. (2001) 8 SCC 645 : 2002 SCC (Cri) 19
11. (2005) 1 SCC 122 : 2005 SCC (Cri) 283 5
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
10. In the case of NEPC (supra) at para no.12 (v), the Hon'ble Supreme Court has categorically held that "As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether, the allegations in the complaint disclose a criminal offence or not."
11. Not only this, in the case of State of Maharashtra Vs. Syed Mohd. Masood and Another (2009) 8 SCC 787 also this aspect has been discussed by the Hon'ble Supreme Court. In fact, that matter was between breach of contract and Section 420 IPC. In the case of Syed Mohd. Masood (supra), the Hon'ble Supreme Court referred to a principle of law as laid down in the case of Uma Shankar Gopalika Vs. State of Bihar (2005) 10 SCC 336. In the case of Uma Shankar Gopalika (supra), the Hon'ble Court observed "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 ...."
612. In fact, there cannot be any rule of law that if civil dispute is decided, with regard to same criminal proceedings cannot be launched. As stated both civil and criminal cases act under different spheres. As stated, a case purely civil in nature can definitely be not taken in the criminal jurisdiction, but if a civil case has an element of criminality, then it is settled law that for such an act, criminal prosecution cannot be stopped, it should go ahead. With these principles, the matter should be looked into now.
13. The facts somehow are admitted, the informant booked a flat through the petitioners. The possession was not given within the stipulated time. A complaint was made to RERA, which was decided on 18.05.2020.
14. On behalf of the petitioners, it is being argued that petitioners are paying the amount as directed by RERA. It is being argued that since, the matter has been decided by RERA, it should not proceed under criminal law.
15. The FIR, in the instant case makes two allegations primarily, one that at the initial stage the informant was assured of 12% return yearly, which was not made and second the possession was not given on time. The decision of RERA has been filed by the petitioner, which is annexure no.5. It also makes reference to assured return at the rate of 12%. It was mention in the brochure, which was published by the petitioners, so this part of assurance is definitely an inducement for anyone to invest with the project, which the petitioners were allegedly undertaking. But, did the petitioner had any intention to construct it on time. The judgment of RERA (annexure no.5) still records that the petitioners did not have due approvals, they did not have completion certificate.
716. On behalf of the petitioners, it is also argued that the petitioners tried to offer possession to the informant, but he did not accept the possession and insisted for money. This argument cannot be accepted because the RERA judgment says that the petitioners project did not have any completion certification. In the absence of any completion certification, how could one give possession to some allottee.
17. Having considered the facts and circumstances of the case, this Court is of the view that this case has an element of criminality. Initial stage the informant was assured 12% return, which was not paid. It definitely induced the informant to deliver Rs.16.75 lakh as booking amount of the flat. This promise was not kept by the petitioners. The petitioners did not have approvals despite that, they took money. The instant case is not purely civil in nature. The criminal prosecution has no affect due to judgment by RERA. Accordingly, this Court is of the view that there is no merit in the petition and it deserves to be dismissed.
18. The instant petition is dismissed.
(Ravindra Maithani, J.) 10.09.2020 Shubham