Rajasthan High Court - Jodhpur
Gopal Singh & Ors vs State & Anr on 19 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 658 / 2015
1. Gopal Singh son of Shri Guman Singh @ Goma Ram,
2. Smt. Gavri Devi wife of Shri Guman Singh @ Goma Ram,
3. Madan Singh son of Shri Guman Singh @ Goma Ram,
4. Malam Singh son of Shri Guman Singh @ Goma Ram
All are by caste Rajpurohit, resident of village Narnadi, Tehsil Luni,
District Jodhpur.
----Petitioners
Versus
1. State of Rajasthan.
2. Vijendra Singh son of Shri Bahadur Singh, by caste Rajput,
resident of Tank House, Ratanada, Jodhpur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Sheetal Kumbhat
For Respondent(s) : Mr. V.S. Rajpurohit, PP
Mr. Pritam Solanki
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 19/07/2017
1. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of IR No.430/2014 registered at Police Station Udaimandir, District Jodhpur and proceedings in furtherance thereto for offence under Section 420, 467, 471, 472/120-B of IPC.
2. The brief facts of the case are that on 08.10.2014, the respondent No.2 filed a complaint before the court of Additional Civil Judge cum Judicial Magistrate (JM) No.3, Jodhpur against the petitioners for alleged offences under Section 420, 467, 468, 471, (2 of 12) [CRLMP-658/2015] 472 & 120-B of IPC. It was alleged in the complaint that the petitioner No.1 & 2 were having land in Khasra No.195/3 measuring 6 bigha 7 biswa situated at village Narnadi, Tehsil Luni, District Jodhpur. There was an agreement to sale between the parties for the said land for RS. 1,45,000/- per bigha and out of which, a sum of Rs. 1,50,000/- was paid on 21.06.2014. The complainant was to be paid an amount of Rs. 9,20,755/-, out of which, he paid Rs. 7,10,000/- and the rest amount was due to be paid. The amount was to be paid within a period of one year from the signing of the agreement i.e. on 21.06.2004 for complying of the necessary terms of the agreement. The respondent No.2 alleged that he came to the petitioners to pay balance amount and requested him to get the land registered in their name then the petitioner No.1 told that there is dispute between the brothers and therefore, he did not take any action against the present petitioners. It is relevant to note here that no civil suit was filed between the parties regarding the compliance or consequences of the said agreement. It was only on 08.10.2014 that the respondent No.2 chose to file a complaint which was forwarded under Section 156(3) of Cr.P.C.
3. Learned counsel for the petitioner has pointed out that there was no dispute regarding land in question and merely with an intention to defeat the civil rights arisen between the parties. Out of the said agreement, the FIR has been lodged with a delay of more than 10 years i.e. the agreement was executed on 21.06.2004 and the FIR has been lodged on 08.10.2014. It is also stated that on the bare reading of the facts of the FIR, no offence (3 of 12) [CRLMP-658/2015] is constituted as the FIR merely narrates the failure of the agreement which had occurred between the parties and there was a variation on the prices of the property therefore, the parties failed to comply with the final terms of the agreement.
4. Learned counsel for the petitioner has relied upon the judgment of Prem Kumar Vs. State of Rajasthan and another reported in Cri.L.J. 744, which reads as follows:
"3. The Appellant filed a petition Under Section 482 Code of Criminal Procedure seeking quashing of the proceedings by stating that the agreement to sell was executed by mother of the Appellant who had died but as the patta was not issued and the sale could not be completed, the complainant took the refund. Thereafter in 1991, the land was recorded in the name of the Appellant. The complainant remained silent for eleven years and even civil proceedings are barred by limitation.
4. The High Court rejected the petition with the observation that the Appellant being aware of the transaction of the year 1989 could not have sold the same property and thus, it could not be held that no cognizable offence was committed. The observations are as follows:
Undisputedly, the Petitioner Prem Kumar is a party to both the sale transaction. He was well aware of the fact threat the land in question has been sold to the complainant way back in the year 1989 as he himself had signed the documents. Thereafter this land has again been sold by the Petitioner Prem Kumar while concealing the factum of earlier sale. This Court is of the opinion that it would not be possible and just for this Court to hold that the F.I.R.
(4 of 12) [CRLMP-658/2015] impugned does not disclose any cognizable offence against the accused Prem Kumar.
5. Aggrieved by the order of the High Court, this appeal has been preferred. On 26th April, 2013, while issuing notice, this Court stayed further proceedings. No one appears for the complainant in spite of service of notice. Learned Counsel for the Appellant submitted that even if all the allegations in the complaint are taken as correct, complaint has been filed in the year 2012 while the agreement to sell in question was executed in favour of the complainant on 16th March, 1989. The second sale took place in the year 1999. No suit for specific performance was filed for a period of more than 10 years. In these circumstances, the complaint was an abuse of court's process to enforce civil rights which had become illegally unenforceable.
6. From the above undisputed facts, it is apparent that the impugned complaint is clear abuse of court's process. It is not the case of the complainant that any proceedings were taken for the enforcement of the agreement to sell for a period of more than 10 years. In these circumstances, the criminal proceedings initiated by the complainant are clear abuse of the process of court. Accordingly, this appeal is allowed and proceedings against the Appellant are quashed.
5. Learned counsel for the petitioner further relied upon the judgment of Suresh Vs. Mahadevappa Shivappa Danannava and anr. reported in 2005(1) WLC (SC) Criminal 519, whereby the Hon'ble Apex Court has laid down the precedent law that a complaint was filed after a lapse of 11 years after the agreement to sale for violation of the same could not be entertained. The relevant portion of the judgment reads as under:
(5 of 12) [CRLMP-658/2015] "10. We have also perused the Annexures P1-P3 which are copies of the pleadings/documents which form part of the records of the case in the High Court against whose order leave to appeal was sought for in this appeal. We have carefully perused the order passed by the High Court. The High Court, in our opinion, has passed the order in a mechanical way without applying its mind. A perusal of the complaint would show that the entire dispute raised by the complainant is based on the alleged agreement to sell dated 25.12.1988 nearly 11 years prior to the filing of the private complaint on 17.05.1999. The existence of any such agreement or any advance taken has been specifically denied by the appellant by way of his reply dated 06.07.1996 in response to the legal notice dated 11.07.1996 sent by the complainant through his lawyer. For nearly 3 years from the date of reply, the complainant kept quiet before filing his complaint on 17.05.1999 before the Magistrate. It is stated that even as per the police report, no offence is made out against accused Nos.
2-4. Despite this, the Magistrate issued process against accused Nos. 2-4 as well which clearly shows the non-application of mind by the Magistrate. A perusal of the complaint would only reveal that the allegations as contained in the complaint are of civil nature and do not prima facie disclose commission of alleged criminal offence under Section 420 IPC. The Magistrate, in our opinion, has not considered the report filed by the police under Section 156(3) Cr.PC judicially. Irrespective of the opinion of the police, the Magistrate may or may not take cognizance under Section 190(1) of Cr.PC. In the instant case, as could be seen from the records, that the police has (6 of 12) [CRLMP-658/2015] given a clean chit to accused Nos. 2-4. In our opinion, the Magistrate ought not to have taken cognizance of the alleged offence against the accused No. 1, the appellant herein and that the complaint has been made to harass the accused No. 1 to come to terms by resorting to criminal process.
11. As already noticed, the complaint was filed on 17.05.1999 after a lapse of 111/2 years and, therefore, the very private complaint filed by the respondent No. 1 is not at all maintainable at this distance of time. It is the specific case of accused No. 1 that he has not executed any agreement to sell or received any advance payment. In our view, the complaint does not disclose the ingredients of Section 415 of Cr.PC and, therefore, we have no hesitation to set aside the order passed by the Magistrate taking cognizance of the offence alleged. It is also not clearly proved that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. The order of the Magistrate and of the High Court requiring the accused No. 1 appellant herein to face trial would not be in the interest of justice. On the other hand, in our considered opinion, this is a fit case for setting aside the order of the Magistrate as confirmed by the High Court of issuance of process and the proceedings itself.
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 (7 of 12) [CRLMP-658/2015] 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 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 (8 of 12) [CRLMP-658/2015] 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 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 (9 of 12) [CRLMP-658/2015] 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."
8. Learned Public Prosecutor submitted the status report reflecting the conclusion that prima-facie the offence has been made because the amount mentioned in the agreement was neither returned by the accused persons nor the agreement was executed. The status report thus, in sum and substance only reflects non-payment of the amount in accordance with the payment and non-compliance of the terms of the agreement and nothing beyond that. Learned Public Prosecutor however submitted that the investigation is complete.
9. Learned counsel for the respondent states that in fact he had waited for the long duration because the petitioner has assured after the dispute was resolved, the agreement would be executed.
10. Learned counsel for the respondent has relied upon the judgment of Het Ram & Ors. Vs. State of Rajasthan & Anr. reported in 2014(4) Cr.L.R. (Raj.) 2084, whereby the High Court has held that aggrieved party is entitled to avail civil and criminal remedy both. Reliance has also been placed on Manohar (10 of 12) [CRLMP-658/2015] Singh Vs. State of Rajasthan & Anr. passed in Criminal Misc. Petition No.2938/2014 decided on 26.09.2016 whereby the High Court has held that since the investigation in the matter has materially progressed and prima-facie case has been made against the petitioner therefore, there was no requirement of any indulgence to be granted by this Court.
11. Learned counsel for the respondent also relied upon the judgment of Mohan Das & Ors. Vs. State of Rajasthan & Anr. passed in S.B. Criminal Misc. Petition No.2872/2014 decided on 20.11.2014, whereby the Coordinate Bench of this Court has laid down that the preparation of false documents by the petitioner was an offence and therefore, it was not a case of some execution but it was a case there was a preparation of false documents, hence, the misc. petition was dismissed.
12. Learned counsel for the respondent also relied upon the judgment of Shabbir Shah Vs. State of Rajasthan & Anr. reported in 2014(2) Cr.L.R. (Raj.) 1038, whereby this Court has decided that if a person was deputed on account of promise to provide employment in gulf countries was an offence.
13. Reliance has also been placed on Vijayander Kumar & Ors. Vs. State of Rajasthan & Anr. reported in 2014 Cr.L.R. (SC) 286, whereby the Hon'ble Apex Court has held that availability of civil remedy cannot be a ground to quash the criminal proceedings and thus, the criminal proceedings ought to continue.
14. After hearing counsel for the parties and perusing the record of the case as well as precedent law cited at Bar, this Court (11 of 12) [CRLMP-658/2015] is of the opinion that the total conclusion of the investigation which reflected in the status report is that an agreement had happened between both the parties and the parties could not take the agreement to the finality as the petitioners did not executed the agreement and also did not return the advance of Rs.7,10,000/- which he had got in lieu of agreement from the respondent No.2. Thus, the case of the prosecution seems to be that neither agreement has been completed and nor the amount taken in lieu of the agreement has been taken and both are squarely covered by the precedent law cited by learned counsel for the petitioner where the Hon'ble Apex Court has held that no suit for specific performance was filed by the complainant for more than 10 years, the complainant was abuse of process of the court to enforce civil rights which had become unenforceable. Furthermore, the Hon'ble Apex Court in the precedent law cited by learned counsel for the petitioner also made it clear that in case of a person not returning the amount taken in lieu of the agreement then also he shall not be entitled to be prosecuted in the criminal proceedings. The precedent law cited by learned counsel for the petitioner is absolutely applicable in the present case and original agreement was signed between the parties on 21.06.2004 whereas after all no civil proceedings whatsoever took place between the parties and a FIR was filed on 08.10.2014 after a delay of more than 10 years. The legally enforceable agreement which could not be enforced by the civil litigation due to limitation. This Court takes note of argument of learned Public Prosecutor that the land was sold by the petitioner but complainant himself (12 of 12) [CRLMP-658/2015] gave a specific reason in FIR that the agreement could not culminate into execution because the variation of the price in the immovable property which resulted into failure of the agreement. In light of such specific complaint on the face of it, it is apparent that the present FIR is nothing but abuse of process of law with the ill-intention of executing the contract which had virtually failed in light of the limitation law. The precedent law cited by learned Public Prosecutor as well as learned counsel for the respondent is not applicable in the present case as it is neither a case of employment where a person has been duped nor it is a case where prima-facie investigation has found some documents to be forged as it is reflected in the status report and no such document of forgery has been pointed out by the prosecution or the private respondent. Thus, the precedent law cited by learned counsel for the respondent would not apply in the present case and shall not impact upon the resulted of the present petition.
15. In light of the aforesaid discussion, the present petition is allowed and the FIR No.430/2014 registered at Police Station Udaimandir, District Jodhpur and the further proceedings for the offences under Sections 420, 467, 468, 471, 472/120-B of IPC is quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/