Allahabad High Court
Smt. Kunti And Another vs State Of U.P. And Another on 18 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 32337 of 2013 Applicant :- Smt. Kunti And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- M.P.S. Chauhan Counsel for Opposite Party :- Govt. Advocate,Ankit Agarval Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri M.P.S. Chauhan, learned counsel for the applicants, Sri Ankit Agarval, learned A.G.A. for the State and Sri G.P. Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned order dated 22.11.2012 passed by C.J.M., Bulandshahr in Case No. 6695 of 2012 arising out of Case Crime No. 421 of 2012 under Sections 406, 420, 467, 468, 417 and 418 I.P.C., P.S. Kotwali Nagar, District Bulandshahr.
Learned counsel for the applicants has argued that the accused applicant no. 1 had executed an agreement to sell of an agricultural piece of land in favour of O.P. No. 2 on 11.07.2008 and by of way of advance, an amount of Rs. 6,30,000/- was taken by the accused applicants and remaining amount of Rs. 4,50,000/- was to be paid at the time of execution of sale-deed. The time for executing the sale-deed was fixed to be 11.08.2008 and when the applicants did not execute the sale-deed in favour of O.P. No. 2, further extension of time for executing sale-deed was taken up to 31.12.2008 but even thereafter accused applicant no. 1 did not execute the sale-deed despite the Opposite Party being ready to get the sale-deed executed by giving entire outstanding money, thereafter O.P. No. 2 sent a notice to applicant but ultimately the applicant refused to execute the sale-deed and, thereafter on 8.07.2012, F.I.R. has been lodged. It is submitted by learned counsel for the applicants that when the time for execution of sale-deed had expired on 31.12.2008, O.P. No. 2 kept waiting till 8.07.2012 to lodge an F.I.R. which is considerable delay and the said delay could not be explained. O.P. No. 2 had an alternative remedy available to move Civil Court by filing a Civil Suit for specific performance of the contract but instead of availing said remedy, he has preferred to lodge an F.I.R. which is against law. No Criminal offence is made out against the accused applicants, hence the present proceedings need to be quashed.
On the other hand, learned counsel for the O.P. No. 2 and learned A.G.A. have vehemently opposed the prayer of quashing and argued that so far as delay in lodging the F.I.R. was concerned, the same happened only because the applicant no. 1 continued to give assurance that the said execution of sale-deed would be made by her and kept seeking time orally because of which delay occurred in lodging the F.I.R. and when finally O.P. No. 2 came to know that applicant no. 1 was going to sell the land in question to some other person, F.I.R. was ultimately lodged by O.P. No. 2.
I have through the F.I.R.
It has been recorded in it that applicant no. 1 had agreed to sell plot no. 561/1, area 0.0550 hectare, Khatauni No. 00397 in favour of O.P. No. 2 for an amount of Rs. 10,80,000/- which was got registered on 11.07.2008 at Bahi No. 1, zild sankhya 3910, page nos. 1 to 20 at serial no. 4083. After that applicant no. 1 could not carry out the terms and conditions of the said agreement to sell as the time to execute the sale deed was to expire on 7.08.2008, the same was got extended for execution of the sale-deed to be done till 31.12.2008. The O.P. No. 2 remained present in Registry Office, Bulandshahr on 31.12.2008 to get the sale-deed executed in his favour but applicant no. 1 did not appear, therefore on the next date i.e. on 1.01.2009, a written notice was got sent to the accused applicants by O.P. No. 2 through an Advocate. After receipt of the said notice, O.P. No. 2 met the accused applicant no. 1 and also made a request orally for execution of the sale-deed but she would not hear nor did she execute the sale-deed and about this, written information was also sent by O.P. No. 2 to the Office of Deputy Registrar, Bulandshahr. In the meantime, on various dates, O.P. No. 2 has given huge amount from time to time to accused applicants but applicant no. 1 did not execute the sale-deed. Subsequently some days ago, he came to know from reliable sources that applicant no. 1 was going to sell her land to someone else then O.P. No. 2 had again sent written notice on 8.05.2012 by post to the applicants which was also replied by the applicant no. 1 on 11.05.2012 in which she flatly refused to execute the sale-deed in pursuance of the agreement of sale and also did not return the amount of O.P. No. 2. Thereafter the F.I.R. was lodged at P.S., Kotwali, District, Bulandshahr which was registered as Case Crime No. 421 of 2012 under Sections 420, 406, 34, 467, 468, 120-B, 417 and 418 I.P.C. After investigation, charge-sheet has been submitted by I.O. after recording as many as four witnesses against the accused applicant no. 1 and co-accused, Manohar who is son of the accused applicant no. 1. Role of the accused applicant no. 2 is only that he was a witness in agreement of sale.
The main argument of learned counsel for the applicants is that the O.P. No. 2 had an alternative remedy available to file a Civil Suit and get the agreement to sell executed but instead of opting the said remedy, he has chosen to file F.I.R. erroneously and mischievously and the present proceedings is of civil nature not of criminal nature.
I do not accept this point of learned counsel for the applicant because intention has to be gathered at the time of execution of agreement to sell as to whether applicant no. 1 actually intended to sell her land or not or wanted to cheat O.P. No. 2 of the amount which had already been extended under the said agreement to sell which are the aspects to be seen at the time of trial. So far as Civil remedy is concerned, by that, he could only get the sale deed executed and get the possession of the plot in question but so far as Criminal part of it is concerned, if his case is found to be proved and accused applicants are held guilty, they would be punished legally.
I would like to rely upon the judgement of V. Ravi Kumar vs. State 2018 SCC Online SC 2811, of which paragraphs nos. 29, 33, 37 are as under.
"29. There can be no doubt that a mere breach of contract is not in itself a criminal offence, and gives rise to the civil liability of damages. However, as held by this Court in Mridaya Ranjan Prasad Verma. v. State of Bihar8, the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced."
33. In Vesa Holdings (P) Ltd.v.State of Kerala, this Court observed:
"12. The settled proposition of law is 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."
13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not."
"37. In this case, it cannot be said that there were no allegations whichprima facie constitute ingredients of offences under Sections 420, 409 and 34 of the Indian Penal Code in complaint. There were clear allegations of fraud and cheating which prima facie constitute offences under Section 420 of the Indian Penal Code. The correctness of the allegations can be adjudged only at the trial when evidence is adduced. At this stage, it was not for the High Court to enter into factual arena and decide whether the allegations were correct or whether the same were a counter-blast to any proceedings initiated by the respondents."
In view of the above, I do not find any good ground to interfere in the impugned order passed by the court below in inherent jurisdiction of this Court under Section 482 Cr.P.C. and prayer to quash the impugned order is refused.
This Application under Section 482 Cr.P.C. deserves to be dismissed and is, accordingly dismissed.
Order Date :- 18.10.2019 A. Mandhani