Jharkhand High Court
Debasish Goswami @ Dewasis Goswami vs The State Of Jharkhand on 25 June, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1646 of 2019
1.Debasish Goswami @ Dewasis Goswami
2.Sidharth Goswami @ Siddharth Goswami
3. Chanchal Kumar Goswami
4. Shyam Das Goswami
...... ... Petitioners
Versus
1.The State of Jharkhand
2. Bimlesh Kumar ..... ... Opposite Parties
With
Cr.M.P. No. 1634 of 2019
1. Dewasis Goswami @ Dewasis Goswami @ Dewashish Goswami
2.Sidharth Goswami @ Siddharth Goswami
3. Chanchal Kumar Goswami
4. Shyam Das Goswami
...... ... Petitioners
Versus
1.The State of Jharkhand
2. Sunil Kumar Singh ..... ... Opposite Parties
--------
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners :Mr. Pratik Sen, Advocate (in both the case) For the State : Ms. Sushma Aind, A.P.P. (in Cr.M.P. 1646/2019) Mr. Nawin Kumar Singh, A.P.P. (in Cr.M.P. No. 1634/2019) For the O.P. No.2 : Mr. Mukesh Kr. Sinha, Advocate (in both the cases) .......
06/ 25.06.2024: In both the petitions common question of law are involved in view of that both the petitions are heard together with the consent of the parties.
2. Heard Mr. Pratik Sen, learned counsel for the petitioners, Ms. Sushma Aind and Mr. Nawin Kumar Singh, learned counsels for the State and Mr. Mukesh Kr. Sinha, learned counsel for the O.P. No.2
3. Cr.M.P. No. 1646 of 2019 has been filed for quashing the entire criminal proceeding including order taking cognizance dated 19.09.2018 in connection with protest-cum-complaint Case No. 411 of 2016, arising out of Ramgarh P.S. Case No. 492 of 2014, pending in the Court of learned Chief Judicial Magistrate, Ramgarh.
4. The protest petition was filed by complainant Bimlesh Kumar against the present petitioners, alleging therein that he had purchased a piece of land from the accused persons vide sale deed 15.05.2012 no. 1277 dated 1 15.05.2012 for a consideration of Rs. 6,33,000/- and the said piece of land was sold to him by the accused persons though the same was already sold to another vendee. In May 2012 when he went digging foundation over the purchased land then the other persons objected saying that they had already purchased that land. Then complainant requested the accused persons to repay the consideration amount and on their refusal also issued legal notice, and when on 20.10.2014 he went to the house of the accused persons then they assaulted him by fists and slaps and also snatched one golden chain.
5. Mr. Pratik Sen, learned counsel for the petitioners submits that earlier complaint case was filed which was referred under section 156(3) Cr.P.C by the learned court and pursuant to that Ramgarh P.S. Case No. 492 of 2014 was registered under sections 420, 406, 468, 471, 504, 323, 387, 34 of I.P.C.. He submits that the case was investigated by the police and final form was submitted showing the case civil in nature and on the protest petition, the learned court has been pleased to take cognizance under sections 420/406/323 of I.P.C. He submits that the petitioners are descendants of recorded tenant of Khata No. 69 of Mouza Patratu and after the death of their ancestors they were coming in title and possession over there contained in annexure-4 series. He further submits that the petitioners had sold 5 decimals of land of Khata No. 69, plot no. 272 to the complainant on 15.05.2012 on which they were having title and possession and further complainant was put in possession over there. He further submits that the allegations are made that the petitioners have sold land to another person. He submits that there is nothing on record to suggest that the said land is sold to another person. He further submits that the sale deed was executed by these petitioners and the O.P. No.2 was put on possession over it and the petitioners advised the O.P. No.2 to get his name mutated. He further submits that intention of cheating from the very beginning is not there inspite of that the learned court has taken cognizance on the protest petition. He further submits that in the present case mutation is still in favour of the petitioners however the step is not taken by the O.P. No.2 to get his name mutated so far the present case is concerned. He further submits that an application was filed before the Circle Officer, Ramgarh by the O.P. No.2 for demarcation of land and date was fixed on 02.03.2016 for demarcation. He further submits that in absence of the petitioners the said demarcation was made on 01.03.2016 and this fact has been admitted in the solemn affirmation itself that the opposite parties have taken their own Amin for demarcation of land. He further submits that no case is made out in view of that entire criminal 2 proceeding may kindly be quashed.
6. Mr. Mukesh Kr. Sinha, learned counsel for the O.P. No.2 submits that case is made out and the learned court has considered the protest petition as well as solemn affirmation and enquiry witnesses and came to that conclusion and in view of that case is made out. He submits that mutation is not done so far the present case is concerned in favour of the O.P. No.2 in view of that case is made out and at this stage the Court may not interfere.
7. Learned counsel for the State submits that the police investigated the matter and submitted final form showing the case civil in nature and however, on the protest petition the learned court has taken cognizance.
8. Cr.M.P. No. 1634 of 2019 has been filed for quashing the entire criminal proceeding including order taking cognizance dated 19.09.2018 in connection with Protest-cum-Complaint Case No. 410 of 2016 arising out of Ramgarh P.S. Case No. 493 of 2014, pending in the Court of learned Chief Judicial Magistrate, Ramgarh.
9. Mr. Pratik Sen, learned counsel for the petitioners submits that the present case is arising out of sale deed dated 15.05.2012 executed in favour of the O.P. No.2 and plots are same however area is different in the present case. He adopted the argument advanced in Cr.M.P. No. 1646 of 2019. He further added in his submission that in the present case mutation was done in favour of the O.P. No.2 and that document has been brought on record by way of counter-affidavit of O.P. No.2 itself. He submits that Circle Officer, Ramgarh in order dated 25.02.2016 stated that Khata No. 69 of Mouza Patratu is raiyati land and jamabandi is registered in name of Sunil Kumar-O.P. No.2 in registered-II of page No. 114/4 and rent is paid for 2014-15. On these grounds, he submits that entire criminal proceeding may be quashed.
10. Mr. Mukesh Kumar Sinha, learned counsel for the O.P. No.2 adopts the argument advanced in Cr.M.P. No. 1639 of 2019 and submits that in the present case also dispute is there and the learned court has taken cognizance pursuant to protest petition in view of that this petition may kindly be dismissed. He submits that Amin has stated that land in question is not existing. He submits that High Courts are very slow in quashing the order under section 482 Cr.P.C. Learned counsel for the O.P. No.2 relied in the case of Priti Saraf Vs. N.C.T. of Delhi AIR 2021 SC 1531. Relying on the said judgement he submits that guidelines are made in the above judgment and the Hon'ble Supreme Court has held that 482 Cr.P.C. proceeding be exercised very sparingly and with circumspection.
311. Learned counsel for the State submits that police investigated the matter and submitted final form showing the case civil in nature and on the protest petition the learned court has been pleased to take cognizance.
12. In view of above submissions of the learned counsel for the parties the Court has gone through the materials on record. It is an admitted position that in the petitions subject matter is sale deed which was executed in favour of the opposite parties. The document in both the case particularly order dated 25.02.2016 of the Circle Officer clearly suggests that for the demarcation date was fixed on 02.03.2016 however, the said demarcation was done on 01.03.2016 prior to date fixed that too in absence of the petitioners. In the solemn affirmation it is admitted by the opposite parties that they taken their own Amin for demarcation. It appears that with clean hand the opposite parties have not appeared before the authority concerned. In Cr.M.P. No.1646 of 2019 it is disclosed in one of the paragraph that after execution of the sale deed the possession was provided to the O.P. No.2 and he was requested to take step for mutation of land and in that case mutation is still in favour of the petitioners which further suggests that land is existing in view of that mutation is there.
13. Identical is the fact in Cr.M.P. No. 1634 of 2019. It is admitted position that O.P. No.2 who is Sunil Kumar, his name is recorded in Register-II at page 114/04 and receipt is also issued for the year 2014-15 which further suggests that mutation was made so far subject matter of Cr.M.P. No. 1634 of 2019 is concerned. The allegations are made that mutations were not done.
14. The above facts clearly suggest that if any dispute is there that is civil in nature and the complainants have not taken any step for initiation of civil proceeding however, to cut short the matter they filed the present case which is deprecated by the High Cout as well as the Hon'ble Supreme Court in several judgments. Reference may be made to the case of "Sarabjit Kaur Vs. State of Punjab and Another"(2023) 5 SCC 360 wherein para 11 and 13 it has been held as under:-
11. Still not satisfied as the result of the earlier complaint was not to the liking of respondent no. 2. He filed another complaint on 23.01.2017. Thereafter, another complaint was filed by Respondent 2 on
15.06.2017 on the basis thereof FIR in question was registered. On the facts of the case in hand, it is evident that the effort of Respondent 2 was merely to put pressure on the appellant while involving her in a criminal case to get his money back whereas there is nothing pleaded that Respondent 2 that he was ever ready and willing to get the sale deed registered. There was no effort made by Respondent 2 or the vendee in the agreement to sell to initiate any civil proceedings to get the sale deed executed on the basis of the agreement to sell. In fact, the last date fixed for execution of the sale deed even after extension was 24-12-2014.
13. A breach of contract does not give rise to criminal prosecution for 4 cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned, On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed f for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court."
15. In view of above judgment it is crystal clear that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. The execution of deed clearly suggests that intention of cheating from the very beginning was not there. The above background of the present case clearly suggests that the O.P. No.2 belatedly filed the complaint case suppressing the material facts as in the counter affidavit filed in Cr.M.P. no. 1634 of 2019 the document of the mutation was brought on record by the O.P. No.2. Further they are trying to improve the proceeding on their earlier version which amounts the abuse of process of law. Reference may be made to the case of "Krishna Lal Chawla and others Vs. State of Uttar Pradesh and Another"(2021) 5 SCC 435.
16. So far as judgment relied by Mr. Sinha in the case of "Priti Saraf"
(supra) is concerned, that is not in dispute. It is well settled that High Court is required to proceed in a proceeding under section 482 of Cr.P.C with circumspection and caution if allegations are made out the petition is required not be entertained and that can be subject matter of trial before the learned court but at the same time if malicious prosecution is brought in the knowledge of the High Court the High Court is having more responsibility to find out the correct thing so as the innocent person may not be prosecuted in malicious prosecution. In malicious prosecution every care is being taken in drafting of the F.I.R. and complaint petition so the ingredients of relevant sections is made out. If such thing is there the High Court is required to read the things in between the lines.
17. In view of above position of law and coming to the facts of the 5 present case it appears that for a civil wrong if any criminal case has been lodged. The opposite parties have tried to improve his case by filing protest petition wherein police found the case civil in nature and submitted final form. In the counter-affidavit filed by the O.P. No.2 the documents have been brought on record so far the part of land is concerned, that is mutated in name of O.P. No.2. Thus, the judgment relied by Mr. Sinha in the case of "Priti Saraf"
(supra) is not helping the O.P. No.2.
18. Mr. Mukesh Kr. Sinha, learned counsel for the O.P. No. 2 in both the cases submits that the complainants are not in possession.
19. Even if the submission of Mr. Sinha with regard to the possession is accepted to be true that cannot be subject matter of criminal proceeding
20. In view of above facts, reasons and analysis, the entire criminal proceeding including order taking cognizance dated 19.09.2018 in connection with protest-cum-complaint Case No. 411 of 2016, arising out of Ramgarh P.S. Case No. 492 of 2014 and the entire criminal proceeding including order taking cognizance dated 19.09.2018 in connection with Protest-cum-Complaint Case No. 410 of 2016 arising out of Ramgarh P.S. Case No. 493 of 2014 pending in the Court of learned Chief Judicial Magistrate, Ramgarh are quashed.
21. Both the petitions are allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated.
22. It is made clear that if any civil suit is there that will be decided in accordance with law without prejudice to this order as this order has been passed considering the criminal aspect of the matter.
( Sanjay Kumar Dwivedi, J.) satyarthi-A.F.R. 6