Gujarat High Court
Mukeshbhai Narpatlal Shah vs State Of Gujarat on 18 September, 2024
NEUTRAL CITATION
R/SCR.A/2758/2012 ORDER DATED: 18/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2758 of 2012
==========================================================
MUKESHBHAI NARPATLAL SHAH
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR BHARGAV BHATT for MR RAJESH R DEWAL(1024) for the Applicant(s) No. 1
ADVOCATE NOTICE SERVED for the Respondent(s) No. 2
MR TRUPESH KATHIRIYA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/09/2024
ORAL ORDER
[1.0] Though respondent No.2 has been served with the notice of fresh Rule informing him about demise of learned advocate Mr. Nigam Shukla appearing on his behalf, respondent No.2 has not remained present.
[2.0] By way of present petition under Articles 14, 19, 21 and 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioner is seeking quashing of FIR being CR No.I-92 of 2012 registered with Viramgam Rural Police Station, Ahmedabad Rural for the offence punishable under Sections 465, 467, 468, 406, 420 and 114 of the Indian Penal Code, 1860 (for short "IPC") alongwith all its consequential proceedings.
[3.0] The impugned FIR is filed at the instance of respondent Page 1 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined No.2 alleging therein that the accused persons in connivance and abetment of each other entered into legal agreement and executed one contract / agreement for sale of land and obtained Rs.41 lakh from the complainant. Though there was no possibility to execute any sale deed, the petitioner and one Amarsinh R. Solanki have taken Rs.41 lakh from the complainant by executing a forged contract / agreement and thereby the accused have committed the offence of forgery, criminal breach of trust and cheating. In this regard, complaint came to be filed alleging offence punishable under Sections 465, 467, 468, 406, 420 and 114 of the IPC. After investigation, charge- sheet came to be filed.
[4.0] Heard learned Advocate Mr. Bhargav Bhatt for learned advocate Mr. Rajesh Dewal for the petitioner and learned APP Mr. Trupesh Kathiriya for respondent No.1 - State of Gujarat.
[5.0] Learned Advocate Mr. Bhargav Bhatt assisted by learned advocate Mr. Rajesh Dewal for the petitioner has submitted that the present petitioner is falsely involved in the present offence and he has not concocted or forged any of the document or he has not executed any forged document and even the signatures are also genuine. Even if the allegations made in the impugned FIR are accepted as it is then also there is no any direct or indirect evidence Page 2 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined which constitutes the alleged offence against the present petitioner as the present petitioner has not committed any offence of forgery, criminal breach of trust and cheating as he has not forged any document. Further, he has submitted that respondent No.2 - complainant is relying on one Memorandum of Understanding according to which the complainant wanted to purchase the land pursuant to which the complainant came in contact with present petitioner who entered into service agreement and provided service while acting as a middleman. As the complainant intended to purchase lands, various survey numbers came to identified from amongst 1500 Vighas of land and consideration came to be fixed at the rate of Rs.45,000/- per Vigha and towards the contract for sale, Rs.41 lakh towards consideration came to be paid by the complainant. Thereafter, as per the contract, after getting title clearance certificates, consideration amount was to be paid in four equal installments. Subsequently, the said sale transaction could not work out and due to this, no sale deed was executed. Further, it is alleged that in the said cluster of land, some survey numbers were government waste lands. Though petitioner has not received any consideration and he was not the owner of any of the land and no any property was entrusted to him hence, question does not arise to commit any offence under Section 406 or 420 of the IPC and even the petitioner has not forged any document and hence, Page 3 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined offence of forgery is also not made out. He has relied on the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009)8 SCC 751 as well as in the case of Delhi Race Club (1940) Ltd. & Ors. vs. State of Uttar Pradesh & Anr. reported in 2024 INSC 626 and has submitted that impugned proceedings are nothing but abuse of process of Court and law and hence, has requested to allow the present petition.
[6.0] Learned APP Mr. Trupesh Kathiriya has vehemently opposed the present petition and submitted that the present petitioner and co-accused Amarsinh Solanki both are involved in the offence as they have pocketed the money without any title of the property. Even, they have executed the contract of sale without the permission and without the knowledge of the original land owners / farmers and statement is also recorded during the investigation which clearly makes out prima facie involvement of the present petitioner. The contract of sale came to be executed for 173 different survey numbers out of which some survey numbers were government land and though possession was with the private parties, in January, 2008 they have received the token amount without any consent of the original owners and they have received the purchase consideration from the complainant without the right, title or interest in the property and in this regard, Page 4 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined investigation was given to SIT and after investigation, impugned FIR came to be filed. The complainant issued a public notice for title clearance certificate pursuant to which the entire offence surfaced and it was found that without any right, title or interest the government waste land was tried to be sold out and in this regard complaint is filed. He has therefore submitted that no case is made out to exercise jurisdiction under Section 482 of the CrPC as the investigation is over and charge-sheet is already filed and prima facie involvement of the present petitioner ii found. In support of his submissions, learned APP has relied on the decision of the Hon'ble Supreme Court in the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others vs. Nimra Cerglass Technics Private Limited and Another reported in (2016) 1 SCC 348 and has requested to dismiss the present petition.
[7.0] Having heard learned advocates for the respective parties and going through the allegations leveled in the complaint, it appears that impugned complaint is filed at the instance of respondent No.2 wherein it is alleged that complainant intended to purchase the immovable property in the vicinity of Ahmedabad and therefore, he came into contact of the present petitioner and one Amarsinh R. Solanki and executed one agreement with the accused persons and decided to purchase land of some of Page 5 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined the survey numbers out of total 178 different survey numbers admeasuring approximately 1500 Vighas and purchase consideration was fixed at Rs.45,000/- per Vigha. Pursuant to the said agreement, the complainant paid Rs.41 lakh towards purchase consideration and after receiving the said amount, it was decided to issue title clearance certificate within four months and one Memorandum of Understanding was also executed in this regard. Thereafter, after verifying 7/12 abstract from the revenue records, the complainant came to know that some of the farmers i.e. original land owners are intending to sell their properties. Hence, he issued the public notice in daily newspaper "Divya Bhaskar" on 28.08.2010 against which the present petitioner and co-accused Amarsinh Solanki have issued the explanation on 30.08.2010 and against the public notice issued by the complainant, Mamlatdar raised an objection that out of the said survey numbers, the properties situated in village Jetapur, Taluka Viramgam bearing Survey Nos.1075, 1071, 1054 paikee, 1053 paikee, 1077 paikee, 1061 paikee, 1185 paikee, 1129, 1135 paikee, 1136, 1141 and 1103 stating that the said lands belonged to the government. As the said lands were government waste lands, the complainant approached the accused persons who had denied the said fact. Though they have pocketed an amount of Rs.41 lakh, the petitioner and the co-accused Amarsinh Solanki have not executed the sale deed and thereby they have committed Page 6 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined the offence. In this regard complaint came to be filed.
[7.1] At the outset, it is worth to mention that no offence much less an offence punishable under Sections 465, 467 and 468 of the IPC is made out as the learned APP has fairly conceded that during the investigation specimen signatures were taken and it was found that, in the Memorandum of Understanding the signatures of the petitioner, witnesses and the complainant were genuine and hence, offence of forgery is not made out. Even, in view of the law laid down by the Hon'ble Supreme Court in the cases of Sukhbir Singh Badal vs. Balwant Singh Khera and Others reported in 2023 SCC OnLine SC 522 as well as Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009)8 SCC 751 and even if uncontroverted allegations leveled in the complaint are accepted as it is then also, no case is made out against the present petitioner for the offence punishable under Sections 465, 467 and 468 of the IPC as the petitioner has not forged any document. Hence, question does not arise to prosecute the present petitioner for the offence of forgery.
[7.2] Now, so far as offence alleged under Sections 406 and 420 of the IPC is concerned, to make out an offence under Sections 406 and 420 of the IPC, it is worth to refer to provisions of sections 405, 406, 415 and 420 of the IPC, which read as under:
Page 7 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined "405. Criminal breach of trust.- 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".
The essential ingredients of the offense of criminal breach of trust punishable under Section 406 of the IPC are: (1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust.
[7.3] "Entrustment" of property under Section 405 of the IPC is pivotal to constitute an offence under this. The words used are, 'in any manner entrusted with property. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of 'trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.
Page 8 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined The definition in the section does not restrict the property to movables or immoveable alone.
[7.4] Section 415 of IPC define cheating which reads as under:
"415. Cheating. -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".
The essential ingredients of the offense of cheating punishable under Section 420 of the IPC are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person: or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 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.
A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
"420. Cheating and dishonestly inducing delivery of property.-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 s Page 9 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined 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 liable to fine."
Thus, Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
[7.5] At this stage, decision of Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. & Ors. (Supra) is required to be referred to. In paragraph Nos.24 and 25 of the said decision, it is observed and held as under:
"24. This Court in its decision in S.W. Palanitkar & Ors. v. State of Bihar & Anr. reported in (2002) 1 SCC 241 expounded the difference in the ingredients required for constituting an of offence of criminal breach of trust (Section 406 IPC) viz-a-viz the offence of cheating (Section
420). The relevant observations read as under:-
"9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.Page 10 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024
NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
25. What can be discerned from the above is that the offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients. In order to constitute a criminal breach of trust (Section 406 IPC): - 1) There must be entrustment with person for property or dominion over the property, and 2) The person entrusted: - a) dishonestly misappropriated or converted property to his own use, or b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation of: i. any direction of law prescribing the method in which the trust is discharged; or ii. legal contract touching the discharge of trust (see: S.W.P. Palanitkar (supra)."
[7.6] Considering the offence under Sections 406 and 420 of the IPC, it appears that there is no iota of evidence under Sections 406 and 420 of IPC and if he accept whatever allegations levelled against the present petitioner, it may be considered as there is a civil dispute pertaining to recovery of money between the parties. Therefore, no offence is made out under Sections 406 and 420 of the IPC and there was no any intention since inception of cheating on part of the petitioner.
[7.7] Considering the fact that there is not an iota of element, Page 11 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined which satisfy or could be said that offence under Sections 406 and 420 of IPC is made out. This Court is of the view that herein civil dispute has been given the cloak of criminality.
[7.8] To make out the offence under Section 406 of IPC, prosecution must have to prove that the accused was entrusted property or with any dominion or power over it and there was dishonest intention, misappropriation or dishonest conversion or disposal of property in violation of directions of law or legal contract by the accused himself. Here in the case on hand, no any iota of evidence or allegation, which suggests entrustment of the property to the petitioner and dishonest intention on the part of the accused. In absence of any such contract of transaction or any breach of terms of agreement between the complainant and petitioner, no offence is made out. It is needless to say that liability recommends difference between the simple payment of investment of money and entrustment of the property. In absence of any fraudulent entrustment or dishonest intention as well as in absence of contractual relationship for the obligation between the accused and complainant, no offence is made out.
[8.0] Learned APP has mainly argued that offence under Section 420 of the IPC is made out and relying on paragraph 18 of the decision of Hon'ble Supreme Court in the case of International Advanced Research Centre for Page 12 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined Powder Metallurgy and New Materials (ARCI) and Others (Supra), he has submitted that there is a distinction between cheating and breach of contract and that present is not a case of simple breach of trust but the petitioner - accused was fully aware of the fact that the land belonged to government and without the knowledge of the same, he entered into agreement and pocketed money and thereby he has duped the complainant and thereby has committed the offence under Section 420 of the IPC. The said authority relied on by the learned APP is not helpful to the respondent No.1 rather it is helpful to the petitioner. To invoke the provision of section 420 of the IPC, in paragraph 15 of the said decision, it is categorically stated that dishonest intention is required to be established. It is not sufficient that there was a false representation made. The prosecution has to show that it was not merely false representation but the said representation was false and was within the knowledge of the accused and with a view to deceive the complainant. Herein, petitioner has not tried to deceive the complainant but merely he has acted as a middleman and one agreement is executed and pocketed the money and then public notice was issued against which petitioner and co- accused Amarsinh Solanki have also published an explanation. Perusing the aforesaid fact, it appears that the petitioner wanted perform his part of obligation but due to whatever reason the complainant was not inclined Page 13 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined to further execute the document / sale deed. Even, perusing the conversation and the public notice and other papers as well as the statement made before the police authority during investigation, it appears that the present petitioner and complainant were ready to delete or omit the said survey numbers that belonged to government which were mentioned in the agreement of sale and to reduce the said amount. This is not a case where the petitioner pocketed the total consideration and then duped the present complainant and not executed sale deed. So far as second argument of learned APP that without title the petitioner has pocketed the money is concerned, perusing the affidavits of the original owners of land of some of the survey numbers namely (1) Shreyans Bharatbhai Kothari, (2) Bhupendrabhai Premchandbhai Shah, (3) Patel Madhavlal Manilal, (4) Prakashsinh Takhatsinh Rehvar, (5) Rajbhai Mulchandbhai Anandani and (6) Ganpatsinh Javansinh Rathod, and which survey numbers are mentioned in the Memorandum of Understanding, it appears that they had received the amount from the present petitioner in the year 2008 and he has also informed the original land owners that the complainant is having financial problem and inspite of several reminders the complainant is not inclined or showing any willingness to execute the sale deed and hence, Banakhat amount was forfeited lateron. Considering the aforesaid fact, as the amount earnest Page 14 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined money / Banakhat was forfeited and orignial land owners have also confirmed the said fact on affidavits, question that the present petitioner pocketed the money without the knowledge of the complainant and entered into agreement of sale does not arise. Hence, the said argument is also far from truth and from the material produced on record it appears that there was inability on the part of the complainant to perform his part or obligation because of which amount of Banakhat came to be forfeited by the concerned original land owners and it prima facie appears that the present petitioner has acted as a middleman between the complainant and the original land owners and he has only rendered his assistance as a middleman in proposed sale transaction. But due to some reason the said transaction could not work out and sale deed could not be executed. Considering the aforesaid fact also, prima facie it appears that no offence under Section 420 of the IPC is made out as the petitioner is not wrongfully benefited from or got any wrongful monetary gain. To make out an offence under Section 420 of the IPC, dishonest intention on the part of accused is must and there must be something on record which can show that the present petitioner has wrongfully gained from the said transaction. Hence, offence under Section 420 of the IPC is not made out.
[9.0] At this stage, it would also be apposite to refer the Page 15 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined decision of the Hon'ble Apex Court in case of (i) Sarabjit Kaur vs. State of Punjab and Another reported in (2023) 5 SCC 360 (ii) Rekha jain vs. The State of Karnataka & Anr. reported in 2022 LiveLaw (SC) 468, (iii) Jay Shri & Anr. vs. State of Rajasthan (2024 INSC 48) passed in Criminal Appeal (arising out of SLP(Crl.) No. 14423 OF 2023), (iv) Syed Yaseer Ibrahim vs. State of U.P. reported in 2022 SCC Online SC 271 and (v) A.M. Mohan vs. The State represented By SHO and Another reported in 2024 INSC 233, passed in Criminal Appeal (Arising out of SLP(Criminal) No. 9598 of 2022), wherein the Hon'ble Apex Court has observed as under :
"9. The law with regard to exercise of jurisdiction under Section 482 of Cr.P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited and Others (2006) 6 SCC 736 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Page 16 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of Page 17 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. "
[9.1] Further, in the case of Lalit Chaturvedi & Others vs. State of Uttar Pradesh & Another rendered in Criminal Appeal arising out of SLP (Cri.) No.13485 of 2023, the Hon'ble Supreme Court has observed as follows:
"18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
[9.2] It would be further apposite to refer the decision of the Hon'ble Apex Court in case of (I) V.P. Shrivastava vs. Indian Explosives Limited and Others reported in 2010(10) SCC 361 and in case of (ii) Delhi Race Club (1940) Ltd. & Ors. vs. State of Uttar Pradesh & Anr. reported in 2024 INSC 626 (CRIMINAL APPEAL NO. 3114 Page 18 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined OF 2024), wherein the Hon'ble Apex Court has observed as under :
"30. ............ There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e., since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously.
31. .......... "The reason being that indisputably there is no entrustment of any property in the Criminal Appeal No. 3114 of 2024 Page 25 of 31 case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406 of the IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.
36. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it."
In view of the aforesaid pronouncements as well as considering the fact that from bare perusal of the complaint, no any fact reveals that there was intention to Page 19 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined cheat the complainant right from inception on the part of the petitioner.
[10.0] Further, considering the nature of litigation it prima facie appears that the complainant ought to have filed civil proceeding either for recovery of money or for specific performance of the agreement of sale but rather the complainant has filed the impugned FIR giving cloak of criminality to civil dispute. Hence also, no offence as alleged is made out against the present petitioner.
[11.0] Further, it is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Page 20 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 and in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335, the Hon'ble Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(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 Page 21 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024 NEUTRAL CITATION R/SCR.A/2758/2012 ORDER DATED: 18/09/2024 undefined 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 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
[12.0] Considering the aforesaid proposition in consonance with the facts of the case on hand, to continue such proceeding against the present petitioners would be abuse of process of law and hence, present is a fit case to exercise powers under Section 482 of the CrPC.
[13.0] In wake of aforesaid discussion, present petition is allowed. Impugned FIR being CR No.I-92 of 2012 registered with Viramgam Rural Police Station, Ahmedabad Rural alongwith all its consequential proceedings is hereby quashed and set aside qua the present petitioner only. Rule is made absolute to the aforesaid extent only. Direct service is permitted.
(HASMUKH D. SUTHAR, J.) Ajay Page 22 of 22 Uploaded by MR. AJAY C MENON(HC00939) on Wed Sep 18 2024 Downloaded on : Mon Sep 23 20:40:24 IST 2024