Rajasthan High Court - Jodhpur
Nirmal Kumar vs State & Anr on 15 November, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2317 / 2016
Nirmal Kumar S/o Shivbhagwan, by caste-Bharatiya R/o Kala Bas,
Ward No.28, Sujangarh, District Churu (Raj.)
(At present lodged in Sub-Jail, Ladnu).
----Petitioner
Versus
1. State Of Rajasthan.
2. Hazi Ibrahimdin Panwar S/o Ashrafdin Panwar, R/o
Nimbhijodha, Tehsil Ladnu, District Nagaur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. R.K. Charan.
For Respondent(s) : Mr. O.P. Rathi, PP assisted by
Mr. Bhajan Lal, C.I. P.S. Ladnu.
Mr. Subodh Jangid.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment Date of Judgment: 15/11/2017 By way of this misc. petition, the petitioner Nirmal Kumar seeks to assail the FIR No.180/2015 registered at Police Station Ladnu, District Nagaur for the offences under Sections 420, 467, 468, 471 and 120B IPC.
Facts in brief are that the respondent complainant Hazi Ibrahimdin Panwar submitted a complaint against five persons including the petitioner herein in the court of Judicial Magistrate, Ladnu alleging inter alia that the accused petitioner Nirmal Kumar Bharatiya approached him on 10.02.2014 and informed that he was having 190 bighas and 17 biswas of land located adjacent to the Mega Highway in the village Khanpur, Tehsil Ladnu. 16 bighas (2 of 9) [CRLMP-2317/2016] and 2 biswas of the said chunk of land had been acquired for the Highway whereas 174 bighas and 15 biswas of land was still available at the spot but was under a dispute. For getting the land freed from the dispute, a sum of Rs.1,60,00,000/- was to be paid to Khurshid and others. Nirmal Kumar told the complainant that he was not able to arrange the entire amount and thus, he should join hands as 10% partner in the entire transaction. The complainant allegedly fell for the allurement given by the accused and joined hands with him for the land deal. He paid a sum of Rs.25,00,000/- towards his share of Rs.1,60,00,000/- to Nirmal Kumar. The remaining amount was agreed to be paid at the time of execution of registered document. On 12.02.2015, Nirmal Kumar Bhartiya got executed a registered sale deed of the entire land which was located in the Khasras No.191, 167, 168, 189 and 69 executed. Mutation was also made in his own favour. Neither was the complainant apprised of the transaction nor did the accused get 1/10th of the land registered in the complainant's name as per the terms and conditions of the mutual settlement. Thereafter, the accused persons fraudulently induced the complainant into buying another piece of land located in Khasra No.734/191 in Village Khanpur without disclosing that the land was under a dispute. The complainant was made to pay a sum of Rs.4,00,000/- for purchasing five bighas of land and a registered sale deed was executed in his favour on 25.02.2014. The complainant alleged that the accused fraudulently induced him into executing the said transaction while showing the land to be clear and dispute free whereas, litigations were pending regarding (3 of 9) [CRLMP-2317/2016] the same in the SDO Court, Ladnu and the court of Additional District Judge, Didwana. Owing to the pendency of the disputes, mutation of the land could not be carried out in favour of the complainant and thereby, he was cheated. He made inquiries from the ADJ Court, Didwana and came to know that Khurshid, Sabir and others had filed a suit for cancellation of the sale deed executed by their power of attorney in favour of Nirmal Kumar Bhartiya. Likewise, Zebun Nisha, being the aunt of Khurshid, had also filed a suit for cancelling the sale deed executed in favour of Nirmal Kumar. The date of the suit pending before the ADJ Court was fixedon 19.09.2014 but the accused, hatched a conspiracy and submitted a compromise on 03.09.2014 and got a collusive decree and thereby sale deed executed in favour of Nirmal Kumar Bhartiya was got cancelled and thereby, the sale made in favour of the complainant was nullified. Khurshid and Sabir, executed a fraudulent agreement to sell the same land in favour of Rafiq and others for a consideration of a sum of Rs.22,06,68,000/- on 01.09.2014. The complainant thus alleged that the accused hatched a conspiracy acted with fraudulent intention and caused wrongful loss to him and also cheated the Government of significant revenue. The said complaint was forwarded to the Police Station Ladnu for investigation where FIR No.180/2015 was registered and investigation commenced. The petitioner Nirmal Kumar Bhartiya has now approached this Court by way of filing this misc. petition under Section 482 Cr.P.C. for assailing the legality and validity of the said FIR.
The learned Public Prosecutor submitted the I.O.'s factual (4 of 9) [CRLMP-2317/2016] report wherein, it is indicated that, Nirmal Kumar Bhartiya is a member of Anandpal's gang and that numerous cases of murder, attempt to murder, Arms Act and fraudulent land transaction are registered against him. In the present case, the offences alleged have been found proved against the accused petitioner Nirmal Kumar.
Shri R.K. Charan, learned counsel representing the petitioner urged that ex-facie the allegation set out in the FIR are false and fictitious and unworthy of credence. He stated that the complainant was well aware that the land was under a dispute and he knowingly entered into an agreement with the petitioner for transacting the same. Thereafter, when the purchasers challenged the sale executed in favour of petitioner, the matter was compromised between the parties and the suit for cancellation of sale was decreed. As per Shri Charan, the complainant Hazi Ibrahimdin Panwar was very much aware of the proceeding of the suit. He filed a Civil Misc. Appeal No.1798/2014 in this Court for challenging the cancellation of sale deed. In the said appeal, the petitioner herein as well as the plaintiffs Khurshid and Sabir Ali were arraigned as respondents. On 07.01.2015, the counsel representing Hazi Ibrahimdin Panwar made a categoric statement in the said appeal that the parties had amicably settled the dispute and a compromise had been arrived between the parties by mutual consent and hence, Hazi Ibrahimdin Panwar (the complainant herein) was not inclined to pursue the appeal. As a consequence of the said statement, the appeal was dismissed by withdrawal on 07.01.2015. Learned counsel Shri Charan urged (5 of 9) [CRLMP-2317/2016] that the allegations set out by the complainant Hazi Ibrahimdin Panwar in the FIR are patently false and uncreditworthy. He deliberately concealed the fact regarding having compromised the entire dispute with the plaintiffs (original sellers) in the misc. appeal filed before this Court. He placed on record an agreement to sale executed between the parties on 18.04.2014 and contended that the petitioner paid a sum of rupees 31 lacs to the complainant and thereafter, the disputed agreement was cancelled. He further urged that complainant voluntarily accepted the said amount while agreeing to cancel the agreement and as a fall out thereof, he consciously withdrew the misc. appeal filed in this Court. Shri Charan submitted that the complainant subsequently developed greedy and malicious motive of extracting more money from the petitioner and that is why, this patently false FIR came to be filed. He urged that ex-facie, even if the allegations levelled in the FIR are admitted as true on the face of the record, the same would give rise to a purely civil dispute and hence, the impugned FIR deserves to be quashed while exercising inherent powers of this Court. He urged that even if the allegations set out in the motivated complaint filed by the complainant are considered as true on the face of the record, apparently, no document was forged or fabricated so as to permit investigation for the offences of forgery, etc. He further urged that the complainant consciously entered into the land transaction with the petitioner after having been apprised that disputes and litigations were going on in relation to the land in question. He agreed to be a part of the transaction by taking 10% share (6 of 9) [CRLMP-2317/2016] therein. Then, he withdrew from the transaction by accepting a sum of Rs.31,00,000/- No sooner, the agreement was rescinded, the complainant withdraw the misc. appeal which he had filed in this court seeking to challenge the alleged fraudulent cancellation of sale deed. He thus vehemently urged that the instant misc. petition deserves to be accepted and the impugned FIR should be quashed.
Per contra, learned Public Prosecutor assisted by Shri Bhajan Lal, C.I., P.S. Ladnu and Shri Subodh Jangid, learned counsel representing the respondent claimant vehemently opposed the submissions advanced by the petitioner's counsel. They urged that the agreement to sale executed between the parties on 18.04.2014 was fraudulent. The petitioner, while entering into transaction, agreed that he would keep 10% share of the complainant in the entire land but thereafter, developed a fraudulent motive and did not get any part of the land transacted in complainant's favour as per the agreement. They further urged that the sale was intentionally and fraudulently got cancelled by filing a collusive compromise before the ADJ Court, Didwana. As per them, the cancellation of sale agreement dated 18.04.2014 presented by the petitioner's counsel during the course of the arguments before this Court is also forged and fabricated and thus, this Court should not feel persuaded to exercise its inherent powers so as to interfere in the FIR containing grave and serious allegations. They further stressed upon the fact that the petitioner is a history-sheeter and large number of cases have been registered against him. They therefore urged that the petitioner (7 of 9) [CRLMP-2317/2016] does not deserve any indulgence of this Court under Section 482 Cr.P.C. and craved rejection of the misc. petition.
I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
As per the admitted case set up by the complainant in the FIR, he had been apprised by the accused that the land was in dispute. He consciously entered into an agreement with the petitioner for buying 10% partnership in the land deed. While the said agreement was in subsistence, the complainant purchased yet another chunk of land from Nirmal Kumar by a registered sale deed executed on 25.02.2014. Though, the said agreement is also alleged to be tainted with fraud but the complainant has not stated that he did not acquire a lawful title of the subsequently purchased land admeasuring 5 bighas. Regarding the earlier transaction, suits were pending before the SDO Court, Ladnu as well as in the Court of ADJ, Didwana. The original sellers Khurshid and Sabir had filed the suit for cancellaton of the sale deed executed in favour of Nirmal Kumar. The petitioner was well aware of the suit proceedings. He claims that he could take any steps to oppose the cancellation of sale as he was not apprised of the pendency of the suit. However, after the suit had been decreed through a consent decree, the complainant Hazi Ibrahimdin Panwar filed a misc. appeal No.1798/2014 in this Court on 29.10.2014 for challenging the cancellation of the sale deed. As mentioned above, the said misc. appeal was withdrawn by the complainant Hazi Ibrahimdin Panwar by filing an affidavit that he (8 of 9) [CRLMP-2317/2016] had settled the matter and did not desire to pursue the appeal. Having compromised the entire controversy with the original sellers, the complainant cannot be allowed to retrace his steps and claim that he had been cheated in relation to the very same transaction. Otherwise also, the complainant's allegation is that the petitioner did not get the registry of 10% land executed in his favour in terms of their settlement. In such a situation, he was required to file a suit for specific performance of the contract rather than launching the criminal prosecution because use of criminal prosecution in the case at hand is nothing short of gross abuse of process of law. Not only this, the FIR appears to have been filed by concealing material facts because the factum of the complainant challenging the sale cancellation decree of the disputed land by filing a misc. appeal in this Court and then withdrawing the same were vital and material facts which ought to have been disclosed by the complainant in the FIR but he intentionally did not mention the same while launching the prosecution. Admittedly, filing of the appeal as well as withdrawal thereof are facts which came into existence well before initiation of the present prosecution and, therefore, the concealment thereof effects the very credibility of the allegations as set out in the FIR. Ex-facie, the allegations of the complainant, even if accepted on the face value, do not disclose the necessary ingredients of the offences of forgery because no document was admittedly forged by anyone. So far as the offence of cheating is concerned, regarding the same too, this Court is of the firm opinion that ex-facie, the petitioner did not give any fraudulent (9 of 9) [CRLMP-2317/2016] inducement to the complainant while executing the agreement so as to justify registration of the FIR for the offence of fraud. The remedy, if any, for the complainant was to take recourse of the appropriate remedy in the civil court which he did but later on withdrew. In any event, it is the firm opinion of this Court that ex- facie, even if the complainant's allegations and the material collected by the I.O. thus far are accepted as true on the face value, then also, necessary ingredients of the offences alleged are totally lacking from the prosecution case and hence allowing continuance of investigation of the impugned FIR would amount to a gross abuse of process of law.
In view of the discussion made herein above, the instant misc. petition deserves to be and is hereby allowed. The FIR No.180/2015 registered at Police Station Ladnu, District Nagaur and all subsequent proceedings sought to be taken thereunder are hereby quashed and set aside.
(SANDEEP MEHTA),J.
tikam daiya/