Chattisgarh High Court
Kishore Kumar Ganguly vs State Of Chhattisgarh on 5 March, 2011
HIGH COURT OF CHATTISGARH BILASPUR
Criminal Revision No 553 of 2010
Kishore Kumar Ganguly
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr Pramod Kumar Verma Senior Advocate with Mr Raghvendra Verma Advocate for the applicant
^ Mr Rakesh Kumar Jha Deputy Govt Advocate for the State
CORAM: Honble Mr TP Sharma J
Dated: 05/03/2011
: Judgement
O R D E R
Criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure 1973 Passed on 5th March 2011
1. By this revision under Section 397 read with Section 401 of the CrPC, the applicant has challenged legality & propriety of the order framing charge dated 13-9-2010 passed by the Judicial Magistrate First Class, Raipur in the matter of State v. Kishore Kumar Ganguly pending before the Court of Mrs. Kiran Thawait, Judicial Magistrate First Class, Raipur, whereby learned Judicial Magistrate First Class has framed charge against the applicant of the offence punishable under Section 420 of the IPC.
2. As per case of the prosecution, the applicant had executed an agreement in favour of complainant Mrs. Laxmi Manthani on 8-11-1990 relating to plot No.B-28/7 area 50 ft. x 80 ft. situate at New Rajendra Nagar, Raipur and after obtaining Rs.50,000/- towards full amount of sale, possession was handed over to the complainant. Sale deed was required to be executed on behalf of the applicant after obtaining necessary permission from the Raipur Development Authority (RDA). Both the parties were reluctant and in the meanwhile, the applicant has given special power of attorney in favour of brother-in-law (devar) of the complainant for execution of sale deed between 2000 and 2002. The Urban Land Ceiling Act was repealed and thereafter, again the applicant assured the complainant for execution of such sale deed. Meanwhile, power of attorney holder i.e. brother-in-law of complainant Mrs. Laxmi Manthani made application before the RDA for permission to execute sale deed on which he was informed that the applicant has informed the RDA in writing that he is cancelling the power of attorney executed in favour of brother-in-law of the complainant. Finally, in the year 2007, vide registered sale deed the applicant has executed sale deed in favour of one Ashok Jadwani. Since execution of the agreement, the complainant has regularly paid premium and rent of the aforesaid plot. On the aforesaid basis, written complaint was filed before police and after registering FIR and investigation, charge sheet was filed against the applicant before the Court of Judicial Magistrate First Class, Raipur. After hearing the parties, the Court below has framed charge against the applicant. Instead of challenging the order impugned before the revisional Court of first instance i.e. Sessions Judge, Raipur, the applicant has directly challenged the order impugned before this Court, though revision is maintainable in terms of Section 397 read with Section 401 of the CrPC before the High Court.
3. I have heard learned counsel for the parties, perused the order framing charge and copy of charge sheet.
4. Learned Senior Advocate appearing on behalf of the applicant submits that as per case of the prosecution, the applicant has executed an agreement to sale in favour of the complainant in the year 1990 and has handed over possession after obtaining full amount of sale. Both the parties were reluctant in execution of sale deed and in the year 2007, the applicant has executed sale deed in favour of Ashok Jadwani. At this stage, defence of the applicant is not required to be considered, but at the time of framing charge, the prosecution is required to show prima facie case for framing of charge against the applicant. Law relating to prima facie case for framing charge has been settled by catena of decisions of the Supreme Court, at the time of framing charge the Court is required to consider the material in its face value and not in its evidentiary value, inter alia, if the material collected on behalf of the prosecution is admitted in its face value, whether conviction of the applicant would be possible or not. At this stage, no meticulous scrutiny is required, but in case of framing of charge under Section 420 of the IPC, the prosecution is required to show prima facie material that the applicant/accused has dishonestly deceived the complainant to do or omit to do anything which he would not do or omit if he were not so deceived and such act or omission has caused or is likely to cause damage or harm to the complainant in body, mind, reputation or property. Learned Senior Advocate further submits that case of the prosecution clearly reveals that initially this was a civil transaction and in the year 2007 without any propriety the applicant has executed sale deed in favour of Ashok Jadwani and has sold the property which may be offence relating to subsequent purchaser, but the applicant has not committed any offence so far as it relates to the complainant. Subsequent breach of contract or denial of execution of contract or condition is not offence punishable under Section 420 of the IPC, same may be breach of contract which gives civil liability against the applicant. Therefore, charge framed against the applicant in the present case, is groundless and while framing such charge the Court below has committed grave illegality.
5. Learned Senior Advocate placed reliance in the matter of Hridaya Ranjan Prasad Verma and others v. State of Bihar and another1 in which while quashing criminal proceedings the Supreme Court has held that cheating is distinguishable from mere breach of contract, definition of cheating under Section 415 of the IPC contemplates two separate classes of acts viz., deception by fraudulent or dishonest inducement and deception by intentional, but not fraudulent or dishonest, inducement, in the second case intentional deception must be shown to exist right from the beginning of the transaction. Learned Senior Advocate further placed reliance in the matter of Suresh v. Mahadevappa Shivappa Danannava and another2 in which on the grounds that the accused has denied the acceptable or balance consideration and executed sale deed after ten years, silence of the complainant for three years after receiving reply of the accused, the case was one of civil dispute and that the complaint was also time barred, the Supreme Court quashed the criminal proceedings.
6. On the other hand, learned State counsel opposes the revision and submits that in the year 1990 virtually, the applicant has sold the property to the complainant after receiving full consideration by way of possession and execution of agreement, but after entering into conspiracy with the alleged subsequent purchaser, with a view to cause damage to the complainant, the applicant has executed sale deed in favour of third party. This is not the case of breach of contract. The applicant was under obligation to execute sale deed in the year 1990, but under some circumstances it was not executed till 2002, meanwhile the applicant has executed special power of attorney in favour of brother-in-law of the complainant, but when brother-in-law of the complainant tried to obtain permission from the RDA for the applicant, the applicant has informed the RDA in writing that he is cancelling the power of attorney executed in favour of brother-in-law of the complainant and subsequently, the applicant has executed sale deed in favour of Ashok Jadwani which shows his dishonest intention since its inception. This is not breach of contract, but is clear case of cheating with dishonest intention.
7. In the present case, as per the complaint, virtually, the applicant has sold the plot to the complainant after receiving full amount of consideration and handed over possession to the complainant. The applicant was seller and nothing was required to be performed on behalf of the purchaser i.e. the complainant for execution of sale deed. the applicant was under legal obligation to obtain necessary permission, if required, and execute sale deed in favour of the complainant, but he has not discharged his legal obligation till 2002. Although the applicant has executed power of attorney in favour of brother-in-law of the complainant who was competent to execute sale deed in favour of his sister-in-law on behalf of the applicant, but the power of attorney holder was not competent to obtain permission from the competent authority. In the year 2002 when the power of attorney holder tried to obtain permission for the applicant from the competent authority, the applicant has informed the competent authority that he is cancelling the power of attorney executed in favour of brother-in-law of the complainant and in year 2007, the applicant has executed sale deed in favour of third party i.e. Ashok Jadwani.
8. In the matter of Suresh (supra), the transaction was not complete, both the parties were required to discharge their obligations and part of their agreement i.e. to pay balance amount of consideration and to execute sale deed, meanwhile the accused has replied and denied the agreement and acceptance of advanced consideration, even thereafter, the complainant was silent for three years and thereafter, he filed complaint. On the aforesaid grounds, criminal proceedings were quashed by the Supreme Court also on the ground that the complaint is time-barred. In the present case, the complainant was not under obligation to discharge any legal obligation and only the applicant was under
obligation to discharge legal obligation of obtaining sanction and to execute sale deed. Although as held by the Supreme Court in para 12 of the judgment of Suresh's case (supra), fraudulent or dishonest intention of the accused should be at the time of making the promise i.e. since its inception, but the case of Suresh (supra) is distinguishable on facts to that of the present case.
9. In Hridaya Ranjan's case (supra), the Supreme Court has observed in paras 14 & 15 of its judgment as follows: -
"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. 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 gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
10. In accordance with Section 54 of the Transfer of Property Act, 1882 sale of immoveable property of the value of one hundred rupees and upwards may be effected by registration of the document. Section 54 of the Act, 1882 defines the word `sale' which reads as under:
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised."
11. Similarly, the word `cheating' is defined in Section 415 of the IPC which reads as follows: -
"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"."
12. As held by the Supreme Court in the matters of Suresh (supra) & Hridaya Ranjan (supra), the complainant is required to show fraudulent or dishonest intention of the accused/applicant at the time of making the promise i.e. since its inception and same can be judged by subsequent conduct, though subsequent conduct is not the sole test.
13. As per the complaint made to the police by the complainant, only the applicant was under obligation to discharge his legal obligation i.e. to obtain permission and execute sale deed in favour of the complainant, while his power of attorney holder tried for obtaining permission for the applicant for execution of such sale deed, the applicant has informed the authorities that he is cancelling the power of attorney executed in favour of brother-in-law of the complainant and thereafter, in the year 2007, the applicant has executed sale deed of the plot in favour of third party. If the applicant was not having any interest over the property, there was no propriety for him to execute sale deed in favour of third party. If both the parties were reluctant for execution of sale deed, though it was only the duty of the applicant, there was no propriety for the applicant for creating any obstruction in obtaining permission by his power of attorney holder, by informing the authorities that he is cancelling the power of attorney. It was the duty of the applicant on the date of execution of such document to obtain necessary permission and to execute sale deed in favour of the complainant, but for the reasons best known to the applicant, he has not tried to obtain such permission on the date of such execution of agreement. Virtually, it was necessary for the applicant to first obtain permission from the competent authority and thereafter to receive full consideration. However, the applicant has not discharged any of his legal obligations at any stage and contrary to discharge of such legal obligations virtually, he has restrained his power of attorney holder from executing sale deed and thereafter, he himself has executed sale deed in favour of third person.
14. Illustration (i) to Section 415 of the IPC is relevant in this case which reads thus:
"A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats."
15. Illustration (i) to Section 415 of the IPC demonstrates about the seller committing offence of cheating relating to second purchaser, but facts of the present case reveal that the seller in connivance with the second purchaser has cheated the complainant.
16. All these subsequent conducts are prima facie sufficient to indicate that intention of the applicant was fraudulent and dishonest since its inception and in connivance with the subsequent purchaser, he has tried to deprive the complainant and cause damage to the complainant from the property and from its rightful enjoyment. These circumstances clearly satisfy the commission of cheating to the complainant in connivance with the second purchaser, as defined in Section 415 of the IPC punishable under Section 420 of the IPC.
17. Therefore, by framing charge and order framing charge, the Court below has not committed any illegality. If the allegations made in the complaint i.e. charge sheet are admitted in its face value by the applicant, same would be sufficient for conviction of the applicant under Section 420 of the IPC.
18. Consequently, I do not find any substance in the revision, same is liable to be dismissed and it is hereby dismissed, in limine.
19. I.A.No.1/2010 stands disposed of.
J U D G E