Jammu & Kashmir High Court
Kuldeep Raj Gupta vs State And Ors. on 14 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Pet u/s 561-A Cr.P.C. No.07/2011, MP No.5/2011
Date of Decision:14.09.2017
Kuldeep Raj Gupta Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the petitioner(s) : Mr. P.N Raina, Sr. Advocate with
Mr. J.A Hamal, Advocate.
For the respondent(s) : Mr. S.S Nanda, Sr. AAG for R-1.
Mr. Gagan Basotra, Advocate with Mr. P.S Pawar, Advocate for R-2 & 3.
1. Through the medium of instant petition, petitioner seeks quashment of criminal proceedings including order dated 02.04.2007 where under the Court has taken the cognizance of offences under Section 420 RPC along with 504/506 RPC in criminal challan in FIR no.90/2006 of Police Station Channi Himmat, titled "State Vs. Kuldeep Raj Gupta" pending before the Court of learned Special Municipal Magistrate, Jammu.
2. The case set up by the petitioner is that respondents 2 and 3 filed a false and frivolous complaint before learned Chief Judicial Magistrate, Jammu, on which as per learned Magistrate the allegations made in the complaint disclosed a cognizable offence so he directed Station House Officer, Police Station, Channi Himmat, Jammu to register the case and investigate the same. Accordingly, FIR No.90 of 2006, was registered at Police Station Bahu Fort, Jammu and concerned police had filed a final investigation report before the Court contending therein that Investigating Agency had come to a conclusion that the allegations leveled particularly 561-A Cr. P. C. No.07/2011 Page 1 of 17 2 relating to alleged offences other than offences under Section 504 and 506, the same were not based on facts. With respect to offences under Section 504 and 506, though the police had said something, yet, had reported that the two offences being non-cognizable, it lacked jurisdiction and competence to make a report thereof.
3. It is contended that on a false story to get register FIR; respondents 2 and 3 had taken assistance of Section 156(3) of Cr.P.C. It is stated that story was not only false but was false to the knowledge of respondent's No. 2 and 3, makers thereof. It was also false with respect to alleged allegation relating to alleged offences under Sections 540 and 506 as petitioner has never known or seen the two respondents at any stage. The final report so filed by the police before CJM, Jammu was transferred to learned Special Municipal Magistrate, Jammu. It is stated that on notice by the learned Magistrate, respondent Nos. 2 and 3 appeared and had filed a protest petition. As would appear from the Protest Petition, the same had been signed by the learned Advocate through whom it had been submitted and also shows the signatures of respondent No.2. The protest petition was allowed by the learned Magistrate who directed cognizance in the matter for alleged offences. Petitioner herein filed an application under Section 253 (2) Cr.P.C., before the said Court praying therein for dropping of the proceedings. Earlier petitioner also filed a petition under Section 561-A before this Court praying therein quashment of the proceedings including FIR and order dated 02.04.2007, to which this Hon'ble Court heard and disposed of the said petition by directing the learned Magistrate to dispose of the application within a period of five weeks. The said application was dismissed by the trial court vide order dated 09.12.2010. It is contended that respondents No.2 and 3, have alleged in the protest petition amongst other allegations are i) That, petitioner herein had executed a Power of Attorney in favour of one Chander Shekhar Sharma 561-A Cr. P. C. No.07/2011 Page 2 of 17 3 S/o Shri Nand Kishore Sharma R/o 202 A/D Gandhi Nagar, Jammu. Attested photocopy of this Power of Attorney has been filed herewith annexed as Annexure H. ii) That, Shri Chander Shekhar Sharma on the basis of the Power of Attorney executed an agreement to sell in favour of respondent No.2. Photocopy of this agreement has been filed herewith as Annexure J. iii) That, the complainant i.e. respondent No.2 in fact pleaded in para 5 of the complaint, that, despite his alleged best efforts, he could not contact the attorney holder of the petitioner herein as according to respondent No.2 he was out of country. The petitioner herein did not take any step to have the plot transferred in favour of the respondent No.2. iv) That, petitioner herein raised objection before the Secretary Housing Board and informed the Board, that, the plot of land, which was allotted to the petitioner and was in his name could not be transferred nor should any request for any such transfer be entertained. v) That, the petitioner herein had cancelled the Power of attorney by deed of Cancellation, copy whereof, is filed herewith as Annexure K. Petitioner, herein, had also notified, that the Power of Attorney in favour of Chander Shekhar stood cancelled and he had no power to transfer the plot in favour of anyone. vi) That, respondent No.2 also had pleaded, that, he had received the paper relating to the plot particularly approved Building Plan along with the agreement to sell. It is further contended that petitioner is aggrieved of not only the impugned order but also aggrieved of pendency of the proceedings including the order dated 02.04.2007. On the following grounds, petitioner has challenged the order impugned as well as criminal proceedings on the following grounds:-
"a) That the entire proceedings including the issuance of process under impugned order dated 02.04.2007 is an abuse of the process of the Hon'ble Court, as neither could the Hon'ble court have taken cognizance much less issued process, as it did under its order dated 2.4.2007.
Complainant had based his entire case on the story of 561-A Cr. P. C. No.07/2011 Page 3 of 17 4 having got an agreement to sell from the attorney of the petitioner herein. It was thus quite surprising, that, the Hon'ble Court had completely overlooked the allegations made in the complaint and had missed the essential position in law of petitioner herein of having entered any relationship with the respondent No.2 and thus not being either on facts or in law answerable to any of his questions
b) That, while petitioner herein has since cancelled the alleged Power of Attorney in favour of Shri Chander Shekhar, yet, while reading the Power of Attorney, petitioner herein had never given any such authority to said Chander Shekhar Sharma, as to transfer the plot of land or execute any agreement to sell with respect to the same in favour of anyone. As petitioner herein had never given any such authority as would bind him to any act of the attorney particularly with respect to the alleged agreement to sell ; the question of making petitioner herein answer any question or query by and on behalf of respondents 2 &3, thus did not arise. Power of attorney which would only indicate, that, no such power or authority was given to Shri Chander Shekhar Sharma as to allow him to sell the plot or execute any agreement to sell. iIt had further been pleaded to the Hon'ble court, that, as neither on facts nor in law petitioner was liable to by any way or for any act to which Chander Shekhar Sharma had done or may have done on any assumed authority, which he never was granted under annexure H, there was no question of any such allegation being entertained by any Hon'ble court, as would make petitioner liable to answer an absolutely baseless charge, cheating or any other offence relating to the plot and Power of Attorney.
c) That, the trial court has taken the matter as one in which procedure as is applicable under Sec. 252 is provided. For purposes of application of procedure, as is given under Sec.252 onwards of Cr.P.C, there has to to be a complaint for which procedure as is provided under Sec. 200 of Cr.P.C was applied. What is mandatory provided is, that, there has to be examination of the complainant at once and witnesses presented. The examination has to be on oath and has to be reduced into writing, signed by the complainant and the witnesses. Issuance of process, thereof, is detailed under Sec. 203 of Cr.P.C. While the trial court had initially entertained a protest petition against a 561-A Cr. P. C. No.07/2011 Page 4 of 17 5 final investigation report submitted under Sec.173 of the Cr.P C, the procedure that had to be applied was procedure as was to govern the cases instituted on police report. The application, which had been filed earlier by the petitioner herein thus, would be one where he had asked for discharge. Since the trial court has referred in the impugned order, that it was unable to review the order of issuance of process, that, had been issued by the trial court vide its order dated 2.4.2008, the trial court, obviously has proceeded by taking, that the matter was covered by the provisions in Cr. PC other than Sec. 251A.
d) That, the complainants had by showing scant respect for facts and law filed a false complaint which was false to their knowledge. The investigating agency had investigated the matter and had made a report holding, that, the allegations leveled were false. The protest petition proceeded on a presumption, as if petitioner herein was in law answerable to the complainant by reference to the Power of Attorney . Hon'ble Court in taking cognizance and issuing process against a citizen, depend on existence of such facts, as would not only attract but satisfy the requirements of law, the illegal assumption of jurisdiction became an abuse of the proceeds of the Hon'ble court, as the petitioner who has absolutely nothing in law to answer, is now facing a litigation initiated before an Hon'ble criminal court which should never have been permitted to be so initiated. The proceedings thus are not only an abuse of the process of an Hon'ble court but it pending against interests of justice as well.
e) The agreement has been back dated, as the petitioner had cancelled the Power of Attorney and had informed the Housing Board about the same forbidding it from entertaining any request for transfer of the plot. It is in the complaint of the complainant, that, he allegedly had received with agreement to sell Annexure J, which is alleged to have been executed on 10.1.1998, document evidenced by letter dated 19th Sept. 2008,
f) That, one Nand Kishore Sharma, father of Chander Shekhar Sharma had tried to create disturbance and interference in petitioner's possession of the plot which had resulted in the petitioner herein having to file a civil suit in the court of Learned Ist Additional Munsiff, Forest Magistrate, Jammu. An interim injunction was issued against the said person as also Chander Shekhar Sharma".
561-A Cr. P. C. No.07/2011 Page 5 of 17 64. Neither State nor private respondents have filed any objections.
5. I have heard learned counsels for the petitioner as well as respondents and gone through the contents of the petition.
6. Mr. P.N Raina, learned senior has reiterated the grounds taken in memo of petition. Whereas Mr. Gagan Basotra, learned counsel for the respondents has argued that there is ample of evidence, which constitutes the offence as alleged; that Court cannot conduct roving inquiry under section 561-A Cr.P.C. as to whether offences as alleged are made out or not, and inherent power can be exercised in rarest of rare case.
7. I have considered the rival contention and law on the subjects.
8. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under :-
11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v.
State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised.
561-A Cr. P. C. No.07/2011 Page 6 of 17 7The illustrations given by the Court need to be recapitulated:-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for 561-A Cr. P. C. No.07/2011 Page 7 of 17 8 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9. From the perusal of challan pending before court below, it reveals that Thakur Dass respondent filed a written complaint before CJM Jammu against petitioner herein for commission of offence under sections 341/352/504/506 RPC on the ground that petitioner-Kuldeep Raj through power of attorney entered into an agreement to sell his residential plot measuring 50X100 ft situated at Sector 6 Channi Himmat on 10.01.1998 for Rs. 1 lac; that at the time of agreement he paid Rs. 80,000/ to him personally; rest of amount was to be paid at the time of sale deed; that attorney delivered possession of plot to him at that time; that relevant documents including allotment order, lease deed executed in favour of Kuldeep Raj by housing Board were also handed over to him. That after ¾ month, he tried to locate attorney holder but came to know that he had gone outside country; then he requested accused to get the plot transferred on the name of nominee; that intention of accused was bad so he avoided and said that his attorney would execute the sale; that his nominee Nisha Wazir prepared all the transfer documents and also obtained signature of attorney Chander Shekhar and went to office of Housing Board on 14.01.2006, where his nominee came to know that accused, the original allottee-Kuldeep Raj, has canceled the attorney and has raised objection for transfer. That complainant on 01.03.2006 approached the accused for return of money at least along with interest, but accused asked him to come after two month; complainant no. 2 on instruction of complainant no.1 then again on 7.5.2006 approached the accused along with Amar Chowdhary at the house of accused situated at Trikuta Nagar in evening and asked to do needful, but accused caused alarm by threatening that he would not at all return the money and would rather forcibly recover possession of the plot; complainant no. 2 get frightened and tried to come out of the house of the accused but accused 561-A Cr. P. C. No.07/2011 Page 8 of 17 9 pushed him physically to one corner of the room, restrained his movement and kept on threatening. Had Amar Chowdhary not intervened, the accused would have further misbehaved him. While pushing the complainant no.2, the accused called him bad names and insulted him thereby provoking him knowing that such provocation may result into breach of peace; accused also threatened that if complainant no.1 did not vacate the plot in question, he would be eliminated from gunda element. Complainant prayed for proceeding u/s 341, 352, 504, 506, 417, 418 and 420 RPC .
10. This complaint was referred to police of Police Station Channi Himmat by Court for registration of case and for investigation on 1.5.2006. Police accordingly registered FIR No.90/2006 u/s 341, 352, 504, 506, 417, 418 and 420 RPC. After investigation police did not prove case u/s 352,417, 418 and 420 RPC, but proved offence u/s 504/506 RPC.
11. Accordingly final police report was submitted to JMIC for disposal under law since 504/506 was non cognizable offences. Complainant was called, who filed protest petition.
12. Court below after perusing protest petition held that offences u/s 420/RPC is also made out so process was issued.
13. Thereafter accused -petitioner has appeared and filed an application for dropping the proceeding in terms of section 253(2) Cr.P.C. which was dismissed by Court below on 09.12.2010 on the ground that criminal Court cannot review its order.
14. Learned counsel for petitioner has raised first question as to what procedure Magistrate was required to follow in the case; whether Magistrate was to follow procedure u/s 251-A Cr.P.C ( the procedure for trial of warrant case on police report) or procedure given in section 252 Cr.P.C. onwards. (Procedure of warrant case on complaint) 561-A Cr. P. C. No.07/2011 Page 9 of 17 10
15. Magistrate takes cognizance of offence u/s Section 190 of Cr.P.C. This section reads as under:-
"190. Cognizance of offence by Magistrates.- (1) Except as hereinafter provided, *[any Chief Judicial Magistrate and, any other Judicial Magistrate] specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own Knowledge or suspicion, that such offence has been committed."
16. So bare perusal of Section 190 (b) Cr.P.C., it is evident that there is no dispute with regard statutory law that magistrate/court has power to disagree with final police report submitted under section 173 Cr.P.C. Magistrate can take cognizance of any offence/s and so can proceed against accused after going through the evidence collected during investigation by exercising his jurisdiction under section 190(b) Cr.P.C.
17. In present case, FIR was registered under some cognizable offences and under some non cognizable offences. When such is situation, police can investigate the matter as per cognizable offence.
18. Further, in present case, police after investigation came to conclusion that only non cognizable offences u/s 504/506/ RPC were made out. So produced final report. Court below after entertaining protest report, came to conclusion that cognizable offence u/s 420 RPC was also made out from evidence collected. Offence u/s section 420 RPC is warrant trial. So report sent by police after collecting evidence would be treated as report in terms of section 173 (2) Cr.P.C. So proceeding shall be commenced by JMIC as warrant trial case as per chapter CHAPTER-XXI of Cr.P.C.
561-A Cr. P. C. No.07/2011 Page 10 of 17 11which deals with procedure for trial of warrant case by magistrate on police report.
19. Section 251 Cr.P.C. deals with the procedure of warrant case. It reads as under :-
"Procedure in warrant-cases.- In the trial of warrant-cases by Magistrates, the Magistrate shall-
(a) In any case instituted on a police report, follow the procedure specified in Section 251-A."
20. In view of above statutory law, the magistrate is required to follow procedure provided under section 251-A Cr.P.C. Section 251-A Cr.P.C. provides complete procedure for trial of warrant case instituted on police report. So, first question is answered accordingly.
21. Now next question arises as to whether on the face of challan offences u/s section 420/504/506 are made out or not.
22. Bare perusal of contents of complaint, it is evident that the dispute appears to be of breach of contract- agreement to sell dated 10.1.1998 executed between attorney (Chander Shekhar) of accused and complainant with regard to sale of residential plot measuring 50X100 ft situated at Sector 6, Channi Himmat, Jammu of accused. It is also evident that out of settled sale consideration of Rs.100, 000/-, the accused has received Rs, 80,000/ and rest of amount was to be paid at the time of sale deed. It is also evident that complainant many time requested to accused to get the sale deed registered on his nominee Nisha Wazir.
23. Whereas petitioner has totally denied the execution of alleged sale agreement and has also stated that it is ante dated.
24. Now cause of action, which gives rise to complainants for setting criminal law into motion, as pleaded in complaint has been given in para no. 7 wherein it has been stated that complainant no. 2 on instruction of complainant no.1 then again on 7.5.2006 approached the accused along with Amar chowdhary at the house of accused situated at Trikuta Nagar 561-A Cr. P. C. No.07/2011 Page 11 of 17 12 in evening and asked to do needful, but accused caused alarm by threatening that he would not at all return the money and would forcibly recover possession of plot; complainant no. 2 get frightened and tried to come out of the house of accused but accused pushed him physically to one corner of the room, restrained his movement and kept on threatening. Had Amar Chowdhary not intervened, the accused would have further misbehaved him. While pushing the complainant no.2, the accused called him bad names and insulted him thereby provoking him knowing that such provocation may result into breach of peace; accused also threatened that if complainant no.1 did not vacate the plot in question, he would be eliminated from gunda element.
25. These contents of complaint appeared to be cleverly drafted in order to create an illusion that accused committed the criminal offence. But all the essential elements of penal sections 420/504/506 mentioned in complaint on which FIR was lodged and challan has been produced are missing.
26. There is no prima facie material for constituting offence under section 504/506 RPC because no specific allegation with regard to criminal intimidation has been leveled. A general type of allegation has been leveled that accused also threatened that if complainant no.1 did not vacate the plot in question, he would be eliminated from gunda element. These allegations do not constitute offence alleged U/S 505/506 RPC.
27. Section 420 of The Indian Penal Code talks about the offence which is committed by the person who cheats another person and thereby induces the deceived to deliver any property. This provision provides punishment for the same. According to the IPC, Section 420 states that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any par t 561-A Cr. P. C. No.07/2011 Page 12 of 17 13 of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liabl e to fine. Essential elements of cheating as defined in section 420
(i) Cheating; (ii) Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and (iii) Mens rea of the accused at the time of making the inducement. The term "cheating" has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C. Section 415 of IPC states that 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".
28. Acting dishonestly has been defined in Section 24 of Act; it states that what is "acting dishonestly". When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly. Section 25 defines the term "Fraudulently". It says that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to 561-A Cr. P. C. No.07/2011 Page 13 of 17 14 a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property.
29. For proving cheating complainant has to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint. But there is distinction between breach of contract and cheating. Distinction depends upon the intention of the accused at the time of inducement which must be judged b y his subsequent act but of which the subsequent act is not the sole standard. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is the substance of the offence. It is necessary to show that he had fraudulent or dishonest intention at the time of making the promise to hold a person guilty for the offence of cheating. From his mere failure to keep up promise consequently such a culpable intention cannot be presume right at the beginning, that is when he made the promise.
30. Keeping in view above facts, it is evident that in present case, there may be breach of contract, if alleged document agreement to sell dated 10.1.1998 executed between complainant and accused through his power of attorney with regard to sale of residential plot 50 x 100 ft. bearing 561-A Cr. P. C. No.07/2011 Page 14 of 17 15 no.205 situated in sector 6, Channi Himmat, is proved in affirmative by Civil Court because there is specific denial on part of accused/petitioner. Further agreement in question has not been executed personally by accused and transaction has taken place between Chander Shekhar Sharma (power of attorney holder of petitioner) and complainant. So complainant without arraying attorney holder cannot allege that accused/petitioner has committed cheating. Court below has held that stand of petitioner that he does not know the complainant is not tenable because complainant is in possession of original documents of plot in question. Even if this fact is considered in favour of complainant, the offence of cheating does not made put. There is also no explanation as to what was complainant was doing from 1999 to 2006; the general allegations that he approached attorney and accused for execution of formal transfer deed cannot constitute that he was all along vigilant on his part.
31. In "Anil Mahajan v. BhorIndustries & Anr." reported in (2005) 10 SCC 228, it is held by the Supreme Court that a distinction between offence of cheating and mere breach of contract should be kept in mind. It is held in the report that a culpable intention right from the beginning when the promise was made cannot be presumed. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. In the said report, the Supreme Court upheld the decision of the sessions court by categorically pointing out that the requisite averments to make out a case of cheating are absolutely absent from the complaint filed before learned Magistrate.
561-A Cr. P. C. No.07/2011 Page 15 of 17 1632. By following the decision of the Supreme Court in Anil Mahajan's case (supra), I am of considered opinion, no fraudulent or dishonest intention on the part of the petitioner from the very beginning of the transaction is made out, even if alleged agreement to sell dated 10.1.1998 executed between attorney (Chander Shekhar) of accused-Kuldeep Raj and complainant with regard to sale of residential plot measuring 50x100 ft situated at Sector 6, Channi Himmat, Jammu of accused, is proved in affirmative.
33. As a result, the transaction between the petitioner and the opposite party may be treated as civil dispute and breach of contract. On consideration of the allegation made by the opposite party/complainant in the petition of complaint and by taking the allegation in its entirety even otherwise, I am unable to persuade myself to hold that any criminal offence is made out. The natural corollary is that no offence punishable under the law is made out against the present petitioner.
34. Further the order of court below dated 2.4.2007, would reveal that magistrate has given finding only while reading protest petition of complaint; he has not discussed other attending circumstances of case.
35. The course of criminal procedure cannot be adopted for settling out the civil rights between parties. The Civil court has already seized off the matter, so complaint filed by respondent, on which FIR was lodged and challan produced, cannot sustain. These criminal proceeding is manifestly attended with mala fide and has been 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 and to settle civil dispute.
36. In view of the above, this petition is allowed. Order dated 02.04.2007 where under the Court below has taken the cognizance of offences under Section 420 RPC along with 504/506 RPC in criminal challan in FIR 561-A Cr. P. C. No.07/2011 Page 16 of 17 17 No.90/2006 of Police Station Channi Himmat titled State Vs. Kuldeep Raj Gupta" pending before the Court of learned Special Municipal Magistrate, is hereby quashed. Record be sent back.
(Sanjay Kumar Gupta) Judge Jammu, 14.09.2017 Surinder 561-A Cr. P. C. No.07/2011 Page 17 of 17