Rajasthan High Court - Jodhpur
Nirmal Kamra vs State Of Rajasthan on 13 July, 2021
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2598/2021
1. Nirmal Kamra S/o Late Shri Chandrabhan Kamra, Aged
About 46 Years, A-84, Karni Nagar, Pawanpuri, Jai Narain
Vyas Colony, Bikaner (Raj.).
2. Mamta Kamra W/o Shri Nirmal Kamra, Aged About 41
Years, A-84, Karni Nagar, Pawanpuri, Jai Narain Vyas
Colony, Bikaner (Raj.).
3. Bhupendra Kumar Meetha S/o Shri Mohan Lal, Aged
About 45 Years, Jai Narain Vyas Colony, Bikaner (Raj.).
----Petitioners
Versus
1. State Of Rajasthan, Through P.p.
2. Krishan Singh Rathore S/o Shri Ram Singh Rathore, 6-C-
32, Jai Narain Vyas Colony, Bikaner (Raj.).
----Respondents
For Petitioner(s) : Mr. Ratish Bhatnagar
For Respondent(s) : Mr. Mahipal Bishnoi, PP
Mr. BS Rathore
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 13/07/2021 In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
Counsel for the petitioner(s) has preferred this Misc. petition under Section 482 Cr.P.C. for the following relief:-
"The F.I.R. No.122/2021, Police Station - J.N.V. Colony, Bikaner may kindly be quashed and set aside qua the petitioners and the police-authority/investigating agency may be directed not to harass the petitioners in relation to the said F.I.R. to secure the ends of justice."
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(2 of 7) [CRLMP-2598/2021] The factual matrix of the case in brief is that the complainant submitted a written report to the effect that after his retirement from Government service he invested all his retiral dues with the help of present petitioner(s) in the present properties.
Counsel for the petitioner has drawn attention of this Court towards first agreement (Annex.2) executed between the parties, which was entered on 01.11.2017 in lieu of which petitioner(s) received Rs.30,00,000/- lacs as security and mortgaged plot Nos.34, 35, 36, 37, 38 & 39 (06 in nos.), total measuring 11220 Sq. Feet. situated at Laxmi Vihar, Udrasar, Bikaner with the present complainant.
Thereafter, counsel for the petitioners have drawn attention of this Court to second agreement dated 30.04.2018 whereby further an amount of Rs.20,00,000/- was taken in lieu of plot Nos. 75, 76, 77 & 78 (04 in nos.) total measuring 6000 Sq. ft. in a residential plan "Laxmi Vihar", Chak-11 B.S.M., Udasar, Bikaner from the present complainant.
Counsel for the petitioner(s), thereafter, sold a farm house through an agreement, which is Annex-3.
Counsel for the petitioner(s) submits that part-payment was accepted in lieu of agreements on 01.11.2015 and rest of the payment was nullified in lieu of earlier due payment.
Counsel for the petitioner argued that criminal case cannot be registered in order to recover disputed amount from a party and has relied upon the judgment passed by Hon'ble Apex court in Satishchandra Ratanlal Shah Vs. State of Gujarat & Another in SLP (CRL.) No.5223 of 2018, decided on 03.01.2021. (Downloaded on 16/07/2021 at 08:35:59 PM)
(3 of 7) [CRLMP-2598/2021] "The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.
15. Moreover, this Court in a number of cases has usually cautioned against criminalizing civil disputes, such as breach of contractual obligations [refer to Gian Singh v. State of Punjab, (2012) 10 SCC 303]. The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted in involuntary and inefficient transfers, under Section 415 of IPC."
Counsel for the petitioner(s) has relied upon judgment passed by Hon'ble Apex court in The Commissioner of Police & Ors. Vs. Devender Anand & Ors. in Criminal Appeal No. 834 of 2017, decided on 08.08.2019.
" 4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law."
Counsel for the petitioner(s) has relied upon the judgment passed by Hon'ble Apex court in Manoj Kumar Sood & Anr. Vs. State of Jharkhand in Special Leave to Appeal (CRL.) No. 1274/2021, decided on 19.03.2021.
(Downloaded on 16/07/2021 at 08:35:59 PM)(4 of 7) [CRLMP-2598/2021] "Wherein it has been settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues"
Counsel for the petitioner(s) has relied upon the judgment passed by this Court in Gopal Singh & Ors. Vs. State of Rajasthan & Anr. S.B. Criminal Misc. Petition No. 658/2015 decided on 19.07.2017; relevant para-6 & 7 whereof reads as follows :-
6. Learned counsel for the petitioner has also relied upon the judgment of Hridaya Ranjan Pd. Verma and others vs. State of Bihar & another reported in 2000 Cri.L.J. 2983, whereby the Hon'ble Apex Court has held that if a criminal prosecution was to take place arising out of breach of contract then the dishonest intention was to be shown at the beginning of the transaction i.e. at the time of making the promise. The relevant portion of the judgment reads as under:
"16. 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 to 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 (Downloaded on 16/07/2021 at 08:35:59 PM) (5 of 7) [CRLMP-2598/2021] 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.
17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana and Ors. v. Bhajan Lal and Ors.
(Supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core (Downloaded on 16/07/2021 at 08:35:59 PM) (6 of 7) [CRLMP-2598/2021] postulate of dishonest intention in order to deceive the complainant-respondent No. 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same."
7. Learned counsel for the petitioner further relied upon the judgment of Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. reported in 2009 (4) RLW 3488 (SC), whereby the Hon'ble Apex Court has settled the law regarding criminal breach of trust and cheating whereby Hon'ble Apex Court has held that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. The relevant portion of the judgment reads as under:
"The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non- refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code."
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(7 of 7) [CRLMP-2598/2021] Learned P.P. and counsel for the complainant submits that it is an admitted fact that plots Nos.34, 35, 36, 37, 38 & 39, total measuring 11220 sq. ft. situated at Laxmi Vihar, Udrasar, Bikaner & plot Nos.75, 76, 77 & 78 total measuring 6000 sq. ft. in a residential plan "Laxmi Vihar", Chak-11 B.S.M., Udasar, Bikaner were allotted to present complainant in lieu of Rs.70,00,000/- given by the complainant but the same have not been returned and also all these 13 plots have been re-allotted to individuals other than the complainant. Double interest has been created by the petitioners illegally.
Learned P.P. further submits that prima facie after investigation the plots in-question have been found to be allotted twice. Investigation is going on. The allotment made to the complainant have been re-allotted to other persons, which prima facie proves the allegation against the present petitioner(s).
The precedent law cited does not apply in given facts at this stage.
Since the Investigation Officer has prima facie found the petitioners guilty, no case for interference in the misc. petition is made out.
Accordingly, the instant misc. petition is dismissed. The factual produced by learned P.P. be taken on record.
(DR.PUSHPENDRA SINGH BHATI),J.
102-/Nirmala/Sanjay/-
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