Rajasthan High Court - Jaipur
(Bhupinder Singh Kochar & Others vs . State Of Rajasthan & Anr) on 18 June, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc. Petition No.4005/2014 (Bhupinder Singh Kochar & others Vs. State of Rajasthan & Anr) Date of Order ::::: 18.06.2015 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.R.K.Mathur, Senior Advocate with Mr.Jai Raj Tantia, for the petitioners. Mr.Sudesh Saini,Public Prosecutor for State.
Mr.Ajeet Bhandari, Senior Advocate with Mr.Rahul Sharma, for the respondent No.2.
The accused-petitioners have filed this Criminal Misc.Petition under Section 482 Cr.P.C. with a prayer to quash FIR No.257/2014 registered at Police Station Jhotwara, Jaipur for the offences under Sections 384, 406, 420 and 120-B IPC mainly on the ground that the dispute between the parties is essentially of civil nature to which colour of criminality has been given by the respondent-complainant.
Brief relevant facts for disposal of this petition are that the respondent-complainant filed a complaint for the aforesaid offences against the petitioners and one Shri Roop Chopra on 2.4.2014 before the the Additional Chief Metropolitan Magistrate No.3, Jaipur Metropolitan, Jaipur with the averment that petitioner-Shri Harpreet Sachdeva came to the office of the complainant on 20.1.2013 and asserted that he is one of the Directors of a company namely Captivate Consultant Services Pvt.Ltd. which has authorized capital of Rs.25 lacs and the present market value of the same is Rs.15,58,61,000/- and the company also owns a Plot No.C-1/1 situated at Jaisingh Highway, Banipark, Jaipur and the Directors of the company are interested to sell the aforesaid company and the plot. It was further averred that after perusing the relevant documents, the complainant agreed to purchase and the petitioners agreed to sell the aforesaid company and plot in lieu of a sale consideration of Rs.15,58,61,000/- and the complainant paid a total amount of Rs.1,45,28,000/- to the petitioners from time to time as part payment of the aforesaid sale consideration, but despite the demand made by him several times, the petitioner did not execute agreement to sell in writing and also did not issue receipt in respect of the amount received by them from the complainant. It was also averred that the petitioners also did not refund the aforesaid amount and when he made contact with them, they threatened him to dire consequences if he continues to demand for execution of agreement in writing and receipt. It was averred that the aforesaid act of the petitioners is offences punishable under Sections 384, 406, 420 read with Section 120-B IPC. The complaint so filed was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Jhotwara, Jaipur where the aforesaid FIR was registered and investigation commenced. In these circumstances, the accused-petitioners have come to this Court by way of this petition.
It was submitted by the learned counsel for the petitioners that even if the version of the incident and the allegations made in the complaint are taken to its face value and treated to be correct and true in its entirety, even then the dispute between the parties is disclosed to be of civil nature as according to the complainant himself the petitioners who are Directors of the aforesaid company failed to reduce in writing the oral agreement of sale allegedly entered into between the parties and they also did not issue receipt regarding part payment obtained by them from the complainant and they also did not refund the money received by them as advance from time to time. According to learned counsel for the petitioners it is an admitted fact that title-deeds of the company and the plot were shown to the complainant in advance and he after satisfying himself about the authenticity and validity of the title and possession of the company entered into oral agreement and paid part of the sale consideration from time to time. It was also submitted that it is the case of the complainant himself that he stopped payment of some cheques given by him to the company and payment of certain cheques was not obtained by petitioners. According to learned counsel for the petitioners at the most it is a case of breach of a contract on the part of the petitioners for which the complainant is free to pursue an appropriate civil remedy, but he has chosen a path of registration of FIR with a sole purpose to harass and pressurize the petitioners. It was also submitted that for an offence to be made out under Section 406 IPC, it is required to be shown that some property was entrusted to the accused or he had dominion over such property on behalf of the complainant, but he dihonestly misappropriated or converted the same to his own use or dihonestly used or disposed of it in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, express or implied, which the accused has made touching the discharge of such trust, or wilfully suffered any other person so to do. According to learned counsel for the petitioners for an offence of criminal breach of trust to be made out the most essential ingredient is the entrustment of some property to the accused, but in the present case even prima facie no such entrustment of any property was made by the complainant to the petitioners or to any of them. The present case is a simple case of sell and purchase of aforesaid company and plot by way of oral agreement between the parties in which part payment of sale consideration was also made to the petitioners by the complainant, but by any stretch of imagination it cannot be said that the petitioners were entrusted by the complainant of some property, or they had dominion over any property on behalf of the complainant. According to learned counsel merely because the petitioners entered into agreement of sell and also obtained part payment of sale consideration, any of the essential ingredients of offence of criminal breach of trust is not disclosed even prima facie. Similarly, it was submitted that for an offence to be made out under Section 420 IPC, it is to be shown that the accused cheated some one, but in the present case any of the ingredients of offence of cheating as defined under Section 415 IPC is present. Section 415 IPC provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to delivery 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'. It was submitted that it is a well settled legal position that for an offence cheating to be made out, it is to be shown that the accused had a fradulent or dishonest intention to deceive from the very beginning when a promise or representation was made and merely that he could not keep his promise subsequently, an offence of cheating cannot be said to be made out. According to learned counsel for the petitioners in view of the admitted position of the complainant himself that he entered into oral agreement to purchase the company and the plot in question after fully satisfying himself regarding title and possession of the petitioners, it cannot be said that the petitioners from the very beginning were having fraudulent or dishonest intention and merely because as per version of the complainant they failed to execute written agreement and receipts and also failed to refund the advance amount paid by the complainant, it cannot be said that they have cheated the complainant in any manner. Even if for the sake of arguments the version of the complainant is taken to be true entirely even then at the most it is a case of breach of contract on the part of the petitioners. It was submitted that although legal position is that for the same act of an accused civil and criminal proceedings can run simultaneously, but at the same time legally it is required that the act of accused must also disclose criminality in the sence that basic ingredients of an offence are present.
So far as Section 384 is concerned, it was submitted that for that an offence to be made out, it is to be shown that the accused intentionally put any person in fear of any injury to that person or to any other and thereby dishonestly induced the person, so put in fear to deliver to any person any property or valuable security or anything signed and sealed which may be converted into valuable security. According to learned counsel for the petitioners for an offence of extortion as defined under Section 383 IPC, the threat must preced delivery of property and any subsequent threat in any manner is not relevant for an offence to be made out under this provision. In the present case it is not the case of the complainant himself that any part of the sale consideration was paid by him to the petitioners after he was put under fear of any injury by the petitioners or any of them. As per version made in the complaint at the most it is shown that when the complainant demanded from the petitioners to execute agreement to sell in writing and issue receipt in respect of advance payment made by him, he was threatened by the petitioners not to act in haste otherwise neither the company and plot would be transferred to him nor the amount already paid by him would be refunded. He was further threatened by the petitioners not to report the matter to police.
So far as offrence under Section 120-B IPC is concerned, it was submitted that in view of the fact that aforesaid offences or any of them is not disclosed even prima facie there is no question of commission of offence under Section 120-B IPC. For such an offence to be made out prior agreement between the accused to commit some other offence is required to be shown, but in the present case no facts even prima facie have been disclosed showing that before entering into agreement of sell with the complainant, the petitioners entered into criminal conspiracy.
It was also submitted that although the well settled legal position is that the High Court should not exercise its inherent powers under Section 482 Cr.P.C. in routine manner to quash an FIR and the investigation undertaken by the police, but at the same time it is also well settled that if the allegations made in the FIR/complaint does not disclose an offence even prima facie, the Court must not hesitate to quash such FIR/complaint.
In support of his submissions, learned counsel for the petitioners relied upon the cases of Dalip Kaur & Ors. Vs. Jangar Singh & Anr. reported in (2009) 14 SCC 696, R.Kalyani Vs. Janak C.Mehta & Ors. reported in (2009) 1 SCC 516 and Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr. reported in (2006) 6 SCC 669.
On the other hand, learned Public Prosecutor supported by the learned counsel for the complainant controverting the submissions made on behalf of the petitioners, submitted that as per version of the complainant as narrated in the complaint which is required to be taken to be true at this stage of the proceedings, it is clear that despite receiving part payment of sale consideration the petitioners did not take necessary steps to execute agreement to sell in writing and issue receipt although demand was made several times by the complainant and rather they avoided it without any cause and ultimately threatened him not to act in haste and from such conduct of the petitioners it can easily be inferred that the petitioners from the very beginning were having fraudulent or dishonest intention to deceive the complainant. It was submitted that although it is a well settled legal position that for an offence of cheating to be made out, it is to be shown that the accused had fraudulent or dishonest intention from the very inception i.e. when promise or representation was made and mere not keeping the promise lateron does not amount such an offence, but at the same time it is also well settled legal position that subsequent conduct of the accused is also a relevant fact to infer whether the accused was having such an intention at the time when the offence was committed and in the present case the aforesaid subsequent conduct of the petitioners is prima facie indication of their fraudulent or dishonest intention to cheat the complainant. It was also submitted that although in the petition and during the course of hearing of the same, an offer has been made by the petitioners that they are ready to execute sale-deed in favour of the complainant after receiving balance amount with interest from him, but prior to registration of FIR at any point of time no such offer was ever made by the petitioners or any of them and notice was also not given showing their intention that they are willing to complete the transaction. It was further submitted that the application filed by the petitioners for grant of anticipatory bail under Section 438 Cr.P.C. has been dismissed by the concerned Sessions Judge and, therefore, the present petition is liable to dismissed on that ground only without going into the merit of case. It was also contended that even if application for grant of anticipatory bail is dismissed by the Court as withdrawn even then petition under Section 482 Cr.P.C. for quashing of FIR is not maintainable. For that purpose, learned counsel for the complainant relied upon the order dated 12.7.2010 passed in S.B.Criminal Misc.Petition No.953/2010.
I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. In the facts and circumstances of the case and the material made available on record and in the light of the well settled legal position, it is to be considered whether the aforesaid offences or any of them is prima facie made out or disclosed against the petitioners.
Offence under Section 406 IPC For an offence to be made out under Section 406 IPC first of all it is to be seen whether there was any criminal breach of trust as defined under Section 405 IPC on the part of the accused. As per Section 405 IPC, whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust. Thus, the first and paramount ingredient for an offence of criminal breach of trust to be made out, it is required to be shown that some property was entrusted to the accused or he having dominion over such property, dishonestly misappropriated or converted for his own use that property. In the present case, it cannot be said that the amount of sale consideration paid by the complainant to the petitioners was an entrustment or the petitioners had dominion over it in any manner on behalf of the complainant. It is the case of the complainant himself that the parties entered into agreement to sell the aforesaid company and plot and against the sale price agreed between the parties the aforesaid amount of Rs.1,45,28,000/- was paid by him to the petitioners. Thus, when the essential ingredient to make an act of an accused to be criminal breach of trust within the meaning of Section 405 IPC is absent, the offence under Section 406 IPC cannot be said to be made out even prima facie against the petitioner and, therefore, the FIR to that extent is liable to be quashed.
Offence under Section 420 IPC Section 420 IPC provides 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 part 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 also liable to fine. It is thus, clear that for an offence to be made out under Section 420 IPC, it is to be shown that the accused has cheated a person. The word cheating has been defined under Section 415 IPC, which provides 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. It is now well settled legal position that in order to constitute an offence of cheating the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act of committing cheating, but at the same time it is also well settled legal position that subsequent conduct of the accused is also a relevant factor to inter whether he had fraudulent or dishonest intention at the inception i.e. when the offence was committed. In the facts and circumstances of the present case it cannot be said that any of the ingredient of the aforesaid offence of cheating is present and from the subsequent conduct of the petitioners also, it cannot be inferred that they from the very inception had a fraudulent or dishonest intention to deceive the complainant. It is an admitted position of the complainant himself that he entered into oral agreement to purchase the company and the plot in question after fully satisfying himself regarding title and possession of the petitioners and, therefore, merely because as per version of the complainant the petitioners failed to execute written agreement and receipts and also failed to refund the advance amount paid by the complainant, it cannot be said that they have cheated the complainant in any manner. Even if for the sake of arguments the version of the complainant is taken to be true entirely even then at the most it is a case of breach of contract on the part of the petitioners and, therefore, the complaint/FIR to that extent is also liable to be quashed.
Offence under Section 384 IPC Section 384 IPC provides that whoever, commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Thus, for an offence to be made out under this provision it is to be shown that the accused extorted the victim as defined under Section 383 IPC which provides that whoever, intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security commits Extortion. Thus, for an offence of extortion to be made out it is essentially to be shown that the accused intentionally put any person in fear of any injury to that person or to any other and thereby dishonestly induced the person so put in fear to deliver to any person any property or valuable security etc. It is well settled legal position that for an offence to be made out under this provision the threat must preced delivery of property and any subsequent threat in any manner is not relevant for an offence to be made out under this provision. In the present case, it is not the case of the complainant himself that any part of the sale consideration was paid by him to the petitioners after he was put under fear by the petitioners or any of them. As per version made in the complainant at the most it is shown that when the complainant demanded from the petitioners to execute agreement to sell in writing and issue receipt in respect of advance payment made by him, he was threatened by the petitioners not to act in haste otherwise neither the company and plot would be transferred to him nor the amount already paid by him would be refunded. He was further threatened by the petitioners not to report the matter to police. In view of the above, the complaint/FIR to the extent of offence under Section 384 IPC is also liable to be quashed.
Office under Section 120-B IPC For an offence to be made out under Section 120-B IPC, prior agreement between the accused to commit some other offence is required to be shown, but in the present case no offence even prima facie has been disclosed showing that before entering into agreement to sell with the complainant, the petitioners entered into criminal conspiracy. Although, in this regard it is well settled legal position that direct evidence for offence under Section 120-B IPC is hardly available and offence under this provision can be inferred even on the basis of circumstantial evidence made available on record, but in the facts and circumstances of the case, no such evidence is available to infer that the petitioners entered into criminal conspiracy before entered into agreement that the complainant. Merely because they subsequently failed to execute the agreement to sell in writing and to issue receipt for the part of sale price paid by the complainant, it cannot be said that the offence under Section 120-B IPC is disclosed against them.
Although, the well settled legal position is that the High Court should not exercise its inherent powers under Section 482 Cr.P.C. in routine manner to quash an FIR/complaint and the investigation undertaken by the police, but at the same time it is also well settled legal position that if the allegations made in the FIR/complaint do not disclose an offence even prima facie, the Court must not hesitate to quash such FIR/complaint.
In view of the above, I find the present case of such a category in which the discretion conferred upon this Court is required to be exercised.
Consequently, the Criminal Misc.Petition filed by the petitioners under Section 482 Cr.P.C. is allowed and the FIR No.257/2014, registered at Police Station Jhotwara, Jaipur for the offences under Section 384,406,420 and 120-B IPC and the investigation taken thereunder is quashed and set aside. The stay application also stands disposed of.
(PRASHANT KUMAR AGARWAL), J teekam/ Reserved order All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretar