Madhya Pradesh High Court
Aman Sehgal vs The State Of Madhya Pradesh on 17 October, 2019
Equivalent citations: AIRONLINE 2019 MP 1370
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
MCRC No.5116/2017
MCRC No.7020/2017
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: Hon'ble Shri Justice S.K. Awasthi
Miscellaneous Criminal Case No.5116/2017
(Sandeep Shrivastava s/o Late L.P. Shrivastava
401, Shri Classic Arch,
79, Beema Nagar, Anand Bazar, Indore MP
Versus
1. The State of Madhya Pradesh
through Police Station, Khajrana, Indore, District Indore MP
2. Smt. Vidula Pinge w/o Ajit Pinge
3. Ajit Pinge s/o Anil Pinge
R/o C-1/501, Shubh Labh Residency, Khajarana Square, Indore MP)
Miscellaneous Criminal Case No.7020/2017
(Aman Sehgal s/o Kamaljeet Singh Sehgal
Shri Classic Arch,
79, Beema Nagar, Anand Bazar, Indore MP
Versus
1. The State of Madhya Pradesh
through Police Station, Khajrana, Indore, District Indore MP
2. Smt. Vidula Pinge w/o Ajit Pinge
3. Ajit Pinge s/o Anil Pinge
R/o C-1/501, Shubh Labh Residency, Khajarana Square, Indore MP)
*****
Mr. Vivek Dalal, learned counsel for the petitioner / accused.
Mr. Vinit Jai Hardiya, learned Public Prosecutor for respondent No.1 /
State of Madhya Pradesh.
Mr. Hitendra Chanderia, learned counsel for respondents No.2 and
3 / complainants.
*****
ORDER
(Passed on this 17th day of October, 2019) As common question of law and facts are in- volved in these two cases, therefore, they were heard analogously and are being disposed of by this common order. For the sake of convenience, facts are taken from Miscellaneous Criminal Case No.5116/2017.
2. The petitioner has preferred this petition un- der Section 482 of the Criminal Procedure Code, 1973 (herein after referred to as "the Code") for quashment of First Information Report (FIR) dated 19.05.2016 (An- nexure P/1) bearing Crime No.374/2016 registered at 2 MCRC No.5116/2017 MCRC No.7020/2017 Police Station Khajrana, Indore District Indore (MP) against the petitioner and other co-accused persons for commission of offence punishable under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code, 1860.
3. Brief facts of the case are that complainants / respondents No.2 and 3 have entered into an agreement dated 14.05.2011 (Annexure P/2) with M/s. Swastik Builders for purchase of Flat No.333, Block No.3, Shree Classic Hills, Khajrana, Tahsil and District Indore MP, [total super built up area 1112 sq. ft (103.34 sq. meter)] and paid Rs.13,30,000/- (rupees thirteen lakh sixty four thousand) as against a total consideration of Rs.21,64,000/- (rupees twenty one lakh sixty four thou- sand). The complainants / respondents No.2 and 3 have lodged FIR against the petitioner (s) and one Ankit Shri- vastava s/o Sharad Shrivastava at Police Station, Kha- jrana, District Indore (MP), alleging that after receiving the earnest money, the petitioners sold the aforesaid flat to (1) Kiran w/o Gyan Chand Satale and (2) Gyan Chand Satale s/o Tunasa Ji Satale, resident of 5/6 Vinay Apart- ment, in front of SGSITS, Indore for a total consideration of Rs.26,00,000/- (rupees twenty six lakhs) on 05.07.2014; also handed over the possession of the afore- said flat to them; and by doing this, they have committed an act of cheating with the complainants. On the basis of the aforesaid complaint, FIR bearing Crime No.374/2016 was registered at Police Station Khajrana, District Indore (MP) against the petitioner and other co-accused persons 3 MCRC No.5116/2017 MCRC No.7020/2017 for commission of offence punishable under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code, 1860; and the accused persons have been arrested on 08.09.2016 and 03.06.2016 respectively. After comple- tion of the investigation, charge sheet has been filed on 02.11.2016 before the Court of Judicial Magistrate First Class, Indore (MP).
4. Learned counsel for the petitioner has submit- ted that the complainants / respondents No. 2 and 3 have got registered the FIR on 19.05.2016 (Annexure P/1) against the petitioners hiding the fact that they have also filed complaint on 13.10.2015 (Annexure P/3) before the District Consumer Disputes Redressal Forum, Indore (MP), claiming inter alia the following reliefs: -
"8- Qksje ls visf{kr lgk;rk%μ v- foi{khx.k dks funsZf'kr fd;k tk, dh os ifroknhx.k ls izkIr jkf'k #i;s 13]30]000@& C;kt ¼24 izfr'kr½ ds lkFk okil djsaA c- fdjk, ds #i esa ifjoknhx.k dks gqbZ gkfu #i;s 13]30]000@& foi{khx.k ˜kjk okil dh tkosA l- vuqfpr O;ikfjd izFkk viukrs gq, miHkksDrk ds lkFk Ny djus ds fy, foi{khx.k dks O;olk; djus ls izfrcaf/kr fd;k tkosA n- ifjoknhx.k dks gq, ekufld la=kl ds fy, #i;s 50]000@& {kfriqrhZ fnykbZ tkosA ;- bl izdj.k dk Oo; #i;s 20]000@& foi{khx.k ls ifjoknhx.k dks fnyk;k tkosA j- vU; lgk;rk tks ekuuh; Qksje mfpr le>sA"
5. It is further submitted that the learned District Consumer Disputes Redressal Forum, Indore vide ex 4 MCRC No.5116/2017 MCRC No.7020/2017 parte order dated 26.02.2016 (Annexure P/4) has al- lowed the claim of the complainant / respondents No.2 and 3 by passing following order in paragraph No.11: -
"1- foi{khx.k] ifjoknh dks mlds }kjk ¶ySV isVs tek dh xbZ 13]30]000@& #i;s ¼rsjg yk[k rhl gtkj #- ek=½ fnukad 14-05-2011 ls 8 izfr'kr lk/kkj.k C;kTk lfgr vnk djsaA 2- foi{khx.k] ifjoknh dks edku ds fdjk;s dh jkf'k 1]50]000@& #i;s ¼,d yk[k ipkl gtkj #- ek=½ vnk djsaA 3- foi{khx.k] ifjoknh dks gq, 'kkjhfjd ,oa ekufld d"V ds fy;s 5]000@& #i;s ¼ikp gtkj #- ek=½ rFkk bl ifjokn dks Oo; 1]000@& #i;s ¼,d gtkj #- ek=½ Hkh vnk djsaA"6. The complainant / respondents No.2 and 3
have also filed an application (Annexure P/5) for execu- tion (ctkojh izdj.k dzekad%1112@2015@2016) of order dated 26.02.2016 passed by the District Consumer Dis- putes Redressal Forum, Indore.
7. The petitioner has challenged order dated 26.02.2016 passed in (izdj.k dzekad%1112@2015) by the District Consumer Disputes Redressal Forum, Indore be- fore the Madhya Pradesh State Consumer Disputes Re- dressal Commission, Bhopal in first appeal; and the MP State Consumer Disputes Redressal Commission, Bhopal vide order dated 30.08.2016 (Annexure P/6) has stayed the operation of order dated 26.02.2016 passed by the District Consumer Disputes Redressal Forum, Indore.
8. It is submitted by the learned counsel for the petitioner that to show the bona fide, on 28.06.2017, the 5 MCRC No.5116/2017 MCRC No.7020/2017 petitioner has already deposited a sum of Rs.21,20,000/- through Pay Order before the District Consumer Dis- putes Redressal Forum, Indore vide Annexure P/7. He also submitted that even the aforesaid dispute between the parties is a civil nature and the complainant / re- spondents No.2 and 3 have already availed the remedy available to them under the civil law, therefore, the peti- tioner cannot be roped for the criminal liability, in the present case. Hence, learned counsel for the petitioner prays for quashment of the FIR registered against the pe- titioner.
9. Per contra, learned Public Prosecutor for re- spondent No.1 / State of Madhya Pradesh as well as learned counsel for the complainant / respondents No.2 and 3 oppose the prayer by contending that there is no material in the present petition filed on behalf of the pe- titioner, because FIR clearly makes out a criminal of- fence against the petitioner. They relied upon the judg- ment passed by the Supreme Court in the case of Vijen- dra Kumar & others v. State of Rajasthan & oth- ers reported in (2014) 3 SCC 389 and Gangadhar Kalita v. State of Assam & others reported in (2015) 9 SCC 647.
10. I have heard learned counsel for the parties at length and perused the record of the case.
11. In the present case, it is an admitted fact that on 14.05.2011, the complainant / respondents No.2 and 3 have entered into an agreement with Landowner (Sanjay 6 MCRC No.5116/2017 MCRC No.7020/2017 Somani s/o Mohanlal Ji Somani) and Building Contrac- tor - Swastik Builders (Sandeep Shrivastava s/o Laxman Prasad Shrivastava; Ankit Shrivastava s/o Sharad Shri- vastava; and Aman Sahagal s/o Kamaljeet Singh Saha- gal) for purchase of Flat No.333, Block No.3, Shree Clas- sic Hills, Khajrana, Tahsil and District Indore MP, [total super built up area 1112 sq. ft (103.34 sq. meter)] and paid Rs.13,30,000/- (rupees thirteen lakh sixty four thousand) as against a total consideration of Rs.21,64,000/- (rupees twenty one lakh sixty four thou- sand). However, on 05.07.2014, the petitioner sold the aforesaid flat to (1) Kiran w/o Gyan Chand Satale and (2) Gyan Chand Satale s/o Tunasa Ji Satale for a total con- sideration of Rs.26,00,000/- (rupees twenty six lakhs); and also handed over the possession of the aforesaid flat to them.
12. In the opinion of this Court, the prosecution version is clearly debatable. However, the issue is whether these facts are giving rise to civil dispute or dis- pute which is punishable under the criminal law. In or- der to answer this preposition, it would be appropriate to refer to the law laid down by the Supreme Court in which ingredients of offence punishable under Section 420 of Indian Penal Code, 1860 are discussed. The Supreme Court in the case of Inder Mohan Goswami and An- other v. State of Uttaranchal and Others reported in (2007) 12 SCC 1 has laid down the ingredients of 7 MCRC No.5116/2017 MCRC No.7020/2017 Section 415 of IPC and the context in which they are to be appreciated. The relevant portion of the judgment is reproduced herein under: -
"41. Section 415 IPC thus requires-
1. Deception of any person.
2. (a) fraudulently or dishonestly inducing that per-
son-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any prop-
erty; or
(b) intentionally inducing that person 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, reputa-
tion or property.
42. On a reading of the aforesaid section, it is mani- fest that in the definition there are two separate classes of acts which the person deceived may be in- duced to do. In the first class of acts he may be in- duced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 fraud- ulent or dishonest. In the second class of acts, the in- ducing must be intentional but need not be fraudu- lent or dishonest. 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 a fraudu- lent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning."
13. From perusal of above leaves no iota of doubt that the charge under Section 420 of IPC can only be im- posed in circumstances when at very inception, the ac- cused had intention to deceive. In this context observa- tion of the Supreme Court in the case of GHCL Em- ployees Stock Option Trust v. India Infoline Lim- ited reported in (2013) 4 SCC 505, paragraph 13 de-
8 MCRC No.5116/2017 MCRC No.7020/2017serves to be reproduced, as it has been clearly laid down that the facts which have hint of 'cheating' or 'breach of trust' can be 'civil' or 'criminal' dispute, in the following terms:
"13. There is no dispute with regard to the legal proposition that the case of breach of trust or cheat- ing is both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence."
14. Therefore, the scope of consideration is as to whether the chronological events, mention in early part of the order, fall within the four corner of 'civil dispute' or 'criminal dispute'. This Court has examined the com- plaint and documents filed along with the charge sheet and after its perusal, I have no hesitation in recording the fact that the same cannot be criminally prosecuted; rather, it is clear that complainant (present respondents No.2 and 3) did not loss his right of filing a civil suit for "specific performance of contract", or "refund of amount", which the complainant (respondents No.2 and
3) has already availed by filing complaint on 13.10.2015 (Annexure P/3) before the District Consumer Disputes Redressal Forum, Indore (MP) for refund of amount of earnest money. The learned District Consumer Disputes Redressal Forum, Indore vide ex parte order dated 26.02.2016 (Annexure P/4) has allowed the claim of the complainant / respondents No.2 and 3, though they have also filed an application dated 04.05.2016 (Annexure P/5) for execution (ctkojh izdj.k dzekad 9 MCRC No.5116/2017 MCRC No.7020/2017 %1112@2015@2016) of order dated 26.02.2016 passed by the District Consumer Disputes Redressal Forum, In- dore, but on 28.06.2017, the petitioner has already de- posited a sum of Rs.21,20,000/- through Pay Order be- fore the District Consumer Disputes Redressal Forum, Indore vide Annexure P/7. This fact has not been dis- closed by the complainant (present respondents No.2 and 3) while lodging the FIR.
15. The judgment cited by the learned counsel for the respondents are not applicable, in the present facts and circumstances of the case.
The judgment rendered by the Hon'ble Supreme Court in the case of Gangadhar Kalita v. State of Assam & others (supra) is distinguishable on facts, and therefore, it is not applicable in the present facts and circumstances of the case. In the case of Gan- gadhar Kalita v. State of Assam & others (supra), allegation was made in the FIR, that accused fraudu- lently got executed power of attorney, because on the date when the deed was said to have been signed by him, he (Kaustav K. Kalita) was minor and respondent No.5 Yuva Raj Borgohain, who was said to be another person who executed the power of attorney, was away from In- dia on the date of alleged execution of the deed. There- fore, the Supreme Court held that the High Court rightly dismissed the petition under Section 482 of the Code. But no such circumstances are appearing in the present case. Therefore, the judgment in case of Gangadhar 10 MCRC No.5116/2017 MCRC No.7020/2017 Kalita v. State of Assam & others (supra) is not ap- plicable in the facts and circumstances of the case.
16. Consequently, Miscellaneous Criminal Case No.5116/2017 and Miscellaneous Criminal Case No.7020/2017 are hereby allowed; and FIR dated 19.05.2016 (Annexure P/1) bearing Crime No.374/2016 registered at Police Station Khajrana, Indore District In- dore (MP) against the petitioner only is hereby quashed and the petitioner is discharged from alleged commis- sion of offence punishable under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code, 1860.
17. Original order be retained in Miscellaneous Criminal Case No.5116/2017 and a copy thereof be retained in connected case.
(S.K. Awasthi) Judge Pithawe RC Digitally signed by Ramesh Chandra Pithawe Date: 2019.10.17 15:29:23 +05'30'