Rajasthan High Court - Jodhpur
Bhoma Ram & Anr vs State & Anr on 27 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1402 / 2015
1. Bhoma Ram S/o Lala Ram, aged 90 years, by caste Raigar,
Luniyapura, Raigar Mohalla, Abu Road, District Sirohi.
2. Madhu W/o Ashok Kumar, by caste Raigar, Luniyapura, Raigar
Mohalla, Abu Road, District Sirohi.
----Petitioners
Versus
1. State of Rajasthan.
2. Smt. Jaishree W/o Gopal Ji, aged about 30 years, by caste
Raigar, R/o Luniyapura, Raigar Mohalla, Abu Road, District Sirohi.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Surendra Surana
For Respondent(s) : Mr. VS Rajpurohit, PP
Mr. Rakesh Arora, for the complainant
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 27/07/2017
1. Petitioners have preferred this misc. petition under Section 482 of Cr.P.c. in FIR No.119/2015 police Station Abu Road City, District Sirohi pertaining to offence under Sections 420, 406 IPC this is petition for quashing of FIR.
2. At the outset, learned counsel for the petitioner has submitted that petitioner Bhoma Ram has expired and the counsel is representing only petitioner No.2 Madhu who is daughter in law of Bhoma Ram. The complainant filed a complaint pertaining to an agreement to sale executed in respect of the agricultural land situated in Village Tartoli, Tehsil Aburoad measuring 22-04 Bigha @ 21,00,000/- per Bigha. Total cost of land was Rs.4,66,20,000/-
(2 of 19) [CRLMP-1402/2015] along with the compensation of Rs.3,00,000/- for the crops and and an advance amount of Rs.75,00,000/- was to be paid on or before 01.01.2015 whereas the remaining amount was to be paid on 15.04.2015. The complainant filed the present complaint that the petitioner No.2 Madhu purchased the said land and such sale happened after the execution of the contract between Bhoma Ram and the present complainant. The total allegation in the FIR is that after the agreement to sale between the petitioner No.1 and the complainant, the petitioner No.1 had not complied with the agreement and further sold the land to his daughter in law.
3. Learned counsel for the petitioner has argued that at the end of his life when Bhoma Ram at the age of 90 years found that agreement to sale was to be executed, Bhoma Ram transferred his land to Smt. Madhu who is daughter-in-law with the clear intention that if the complainant wishes to comply with the terms and conditions of the agreement to sale, the agreement could be executed through madhu.
4. Learned counsel for the petitioner further pointed out that the arrangement was such that after the transfer of land to petitioner No.2, the non-petitioner No.2 was made to pay some of the remaining amount to petitioner No.2 and therefore, agreement to sale was in fact being believed by faithfulness until the respondent failed to pay the rest of the amount. Learned counsel for the petitioner further stated that the petitioner No.2 is still prepared to sell the land in accordance with agreement to sale between the parties, if the respondent is prepared to pay the amount as stipulated in the agreement.
(3 of 19) [CRLMP-1402/2015]
5. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court rendered in Paramjeet Batra Vs. State of Uttarakhand & Ors. reported in 2013 Cr.L.R. (SC) 67, the relevant portion of this judgment which is as follows :-
"While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.
As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by respondent 2 against him alleging offence under Section 406 of (4 of 19) [CRLMP-1402/2015] the IPC. Possession of the shop in question has also been handed over by the appellant to respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise. "
6. Learned counsel for the petitioner has also relied upon the judgment passed by this court in Criminal Misc. (Pet.) No.658/2015 in Gopal Singh & Ors. Vs. State & Anr.
decided on 19.07.2017, which reads as follows :-
" 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, 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 (5 of 19) [CRLMP-1402/2015] 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 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 (6 of 19) [CRLMP-1402/2015] 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. 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 (7 of 19) [CRLMP-1402/2015] 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:
"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 (8 of 19) [CRLMP-1402/2015] 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 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 (9 of 19) [CRLMP-1402/2015] 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 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 (10 of 19) [CRLMP-1402/2015] 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 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 (11 of 19) [CRLMP-1402/2015] 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 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.
(12 of 19) [CRLMP-1402/2015] 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 Singh Vs. State of Rajasthan & Anr. passed in Criminal Misc. Petition No.2938/2014 decided on 26.09.2016 (13 of 19) [CRLMP-1402/2015] 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 is of the opinion that the total conclusion of the (14 of 19) [CRLMP-1402/2015] 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 gave a specific reason in FIR that the (15 of 19) [CRLMP-1402/2015] 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. "
7. Learned counsel for the petitioner thus, made out a case that the matter did not travel beyond execution of agreement to sale between the parties and at best the respondent can avail the civil remedy if he wanted to get the specific performance of the agreement to sale.
8. Learned counsel for the petitioner has also stated that (16 of 19) [CRLMP-1402/2015] the case law cited by the counsel for the complainant was pertaining to offence committed by forging signatures of the dead person and therefore, the forgery was made out and the same will not apply in the present case.
9. Learned counsel for the respondent strongly argued that the transfer of the land from petitioner No.1 to petitioner No.2 reflects that the intention were not correct and in fact the offence was made out on this count alone. Learned counsel for the respondent further argued that it was the act of the petitioners which makes the case under the purview of criminal law.
Moreover, the amount which was given to the petitioners has not been returned even when amount paid by other parties of the agreement has been returned to the complainant.
10. The emphasis of the learned counsel for respondent was that the revenue suit was going on between the parties themselves and therefore they were not authorized to sell the land, thereby frustrating such agreement. Since unauthorized sale of land has been done in this case, therefore, the petitioner is liable to be held responsible under the criminal law and thus, prosecution should carry on. Learned counsel for the respondent has also submitted that the revenue suit was filed on 24.10.2014 and in that thereafter, the amount was accepted by Madhu.
11. Learned counsel for the respondent has relied upon the judgment passed by a co-ordinate Bench of this Court in Teja Gir Vs. State of Rajasthan & Anr. (Criminal Misc. Petition No.2860/2014) decided on 24.11.2014, in which this Hon'ble Court has distinguished the civil contract from 'Varisnama' purview (17 of 19) [CRLMP-1402/2015] of Paramjeet Batra. The relevant portion of this judgment is as follows :-
"So far as the contentions of learned counsel for the petitioner that he has already filed a suit for partition and appeal for mutation entry is concerned, this Court is of the opinion that the offence committed by the petititoner by forging the signatures of dead person is liable to be investigated, despite the fact that any civil proceedings have been initiated at the instance of the complainant to undo the entries made in the revenue record illegally. "
12. Learned Public Prosecutor has submitted the status report which reflects that investigation has been completed and it has been categorically found by the investigating agency that an agreement had happened between the petitioner and the present complainant which was not executed even after taking some part of money, thus, the petitioner was responsible for committing such offence against the present complainant.
13. After hearing counsel for the parties and perusing the record of the case along with status report submitted by the learned Public Prosecutor, this Court is of the opinion that agreement to sale happened between the parties is not disputed and the petitioner on the inception had the intention of complying with the terms and conditions of agreement to sale and that's how they took certain advance amount for such compliance. It is also noted that the petitioner gave notice to the complainant so as to comply with the rest of the agreement to sale and also go ahead with the sale but the respondent did not make the rest of the (18 of 19) [CRLMP-1402/2015] payment for the same. This Court has also taken note of the fact that in the investigaiton has already been completed in this case and the conclusion thereof is to the effect that contract of agreement to sale has happened between both the parties and advance amount was received by the present petitioner and present petitioner neither returned the amount nor complied with the terms and condition of agreement to sale.
14. It is also on record that the transfer was done in favour of the petitioner No.2 by the petitioner No.1 on account of looking to the age of 90 years of petitioner No.1. This Court has also noted the fact that the complainant has paid more amount and thus, gone ahead with the agreement to sale even after the registered sale deed was executed between the petitioner No.1 and petitioner No.2 which reflects that they were ready to execute the earlier agreement to sale but thereafter somehow they wriggled out. This Court has also taken note of the precedent law cited by learned counsel for the petitioner wherein the Hon'ble Apex Court has said that purely a civil dispute would be made out in case of breach of agreement to sale.
15. This Court is of the considered view in totality of the facts of the case that at the most the act committed may be a irregularity or illegality but the remedy does not lie in the criminal prosecution. As it is purely a civil dispute arising out of agreement to sale between both the parties which could not be culminated into execution or return of the amount and on such failure of the civil transactions, the criminal prosecution cannot be continued.
The enforcement of such civil transactions by virtue of criminal (19 of 19) [CRLMP-1402/2015] prosecution shall not only be against cardinal principles of criminal jurisdiction but also would go against the precedent law laid down by Hon'ble Apex Court. The respondent and the prosecution have only made their argument about breach of agreement but have not been able to take their allegation beyond the point of execution of the agreement to sale and thus, this petition deserves to be allowed.
16. In light of the aforesaid discussion, the present misc.
petition is allowed and the FIR No.119/2015 registered at Police Station Abu Road City, Sirohi is quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer