Uttarakhand High Court
Smt. Uma Singh And Another ....... ... vs State Of Uttarakhand And Another on 24 September, 2020
Equivalent citations: AIRONLINE 2020 UTR 326
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 236 of 2018
Smt. Uma Singh and another ....... Petitioners
Vs.
State of Uttarakhand and another .......Respondents
Present:
Mr. Rajat Mittal, Advocate for the petitioners.
Mr. Pratiroop Pandey, AGA for the State.
Mr. Bhupesh Kandpal, Advocate for respondent no.2.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Petitioners seek quashing of the charge sheet dated 19.03.2017, in Case Crime No. 363 of 2016, Police Station Patel Nagar, District Dehradun; cognizance and summoning order dated 10.04.2017, passed in Criminal Case No. 1427 of 2017, State Vs. Smt. Uma Singh and another, pending in the court of Additional Chief Judicial Magistrate 2nd, Dehradun (for short "the case") as well as to quash the entire proceedings of the case.
2. Heard learned counsel for the parties through Video Conferencing and perused the record.
3. Facts necessary to resolve this dispute, briefly stated, are as hereunder:-
Respondent no.2 filed an FIR on 17.10.2016, under Sections 420, 506 IPC against the petitioners. According to it, petitioner no.1 was allotted one MIG flat under ISBT house planning near Saharanpur-Delhi-
Haridwar bye pass road Dehradun (for short "the flat"). Petitioner no.1 2 agreed to sell the flat to the informant and an agreement to sale (for short "the agreement) was executed on 22.03.2016. The total consideration agreed was Rs.34,29,512/-, out of which, Rs. 5 lakh was paid by the informant on the same day. It was agreed between the parties that Rs.17,89,512/- shall be deposited by the informant with MDDA, Dehradun till 31.03.2016. The informant deposited Rs.10 lakh, but subsequently, he came to know that the petitioner no.1 could not have executed the sale deed because she was neither owner nor in possession of the flat. She could not have sold the flat for five years after taking possession because it was allotted to her under horizontal reservation scheme to women reservation. There are other details as well in the FIR.
It is this FIR, in which, after investigation, charge sheet was submitted and cognizance taken. That is how the proceedings of the case were instituted. It is the same charge sheet, cognizance order and proceedings of the case which are impugned herein.
4. Learned counsel for the petitioners would submit that the informant was not cheated by the petitioner no.1, because the agreement categorically states that some of the consideration amount would be paid by the informant with the MDDA Dehradun and in para no. 4 of the agreement, it is also stated that MDDA would deliver possession after 31.03.2016. According to learned counsel, these averments in the agreement clearly show that both the parties to the agreement were aware that the flat was only allotted in favour of petitioner no.1 and she was not in possession of the flat. She was not handed over the possession. It is argued that in fact, as per the terms and conditions of the agreement, the 3 respondent had to deposit Rs. 17,89,512/- with the MDDA Dehradun, but he did not deposit. Thereafter, petitioner no.1 gave various notices to him to take his money back, but he filed an FIR.
5. With regard to the allegations in the FIR, on behalf of the petitioners, it is submitted that the petitioners did not conceal anything about ownership of the flat at the time of agreement, because agreement categorically describes that some amount was to be deposited by the informant with MDDA, which implies that the informant knew that the MDDA is the owner and secondly, the flat was not allotted to the petitioner no.1 under any horizontal reservation scheme, instead it was on the basis of onetime payment. It is argued that it is a case of pure breach of contract by the informant and there is no element of criminality in it.
6. On the other hand, learned counsel for the respondent no.2 would submit that it is a case of clear cut cheating by the petitioner no.1 because in the agreement in the very first paragraph the petitioner no.1 had introduced that she is exclusive owner in possession of flat and her name is recorded in the revenue record. It is argued that these averments in the agreement are false. The petitioner no.1 knew that she was neither owner, nor in possession of the flat and even her name is not recorded anywhere, but still she concealed these facts from the informant and thereby induced him to enter into an agreement. Based on the assurance and inducement made by the petitioner no.1, it is argued that the informant paid Rs.5 lakh at the time of execution of the agreement and 4 subsequently, he deposited Rs.10 lakh with MDDA. Subsequently, when the informant came to know that the petitioner no.1 is not the owner of the flat and the flat was allotted to her under horizontal reservation scheme and she could not execute a sale deed within five years of having possession of it, the informant stopped payment. Notices have been denied by the informant. It is also argued that interim order was obtained on the basis of false averments by the petitioners.
7. Learned counsel for the informant has, in fact confined his arguments to the facts that the petitioner no.1 knew that she cannot sell the flat as she was not the owner, but she executed the agreement as if she is owner and is able to execute the sale deed. She induced the informant to pay the money, thereby the offence of cheating has been committed. It is also argued that there are factual aspects of the matter, which may be gone into in the trial.
8. This is petition under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Code") an area which is too wide but much guided by the laid down principles by the Hon'ble Supreme Court. Generally, interference is not warranted in such proceedings, if prima facie, case is made out. Factual aspects are also not examined in these proceedings, of course, unless, it is necessitated for example in the case of mala fide etc. The line between breach of contract and cheating is thin, but quite visible. Cheating has been defined under Section 420 IPC, as hereunder:-
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the 5 whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. One of the essentials of offence under Section 420 is dishonest inducement and in the cases like instant one, it is also settled law that dishonest inducement should be since inception.
10. In the case of Indian Oil Coprn. Vs. NEPC India Ltd. And Others, (2006) 6 SCC 736, the Hon'ble Supreme Court summed up the principles on this subject and in para 12 (v) observed as hereunder:-
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. .....................
(v) A given set of facts may make out: (a) purely a civil wrong; or
(b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
11. In the case of Amit Kapoor Vs. Ramesh Chandra and another, (2012) 9 SCC 460, in para 27.8, the Hon'ble Supreme Court observed that "where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence."
12. In view of the settled legal position, if the instant case is examined, it reveals that in fact, the basis of these proceedings is an agreement dated 22.03.2016, which was entered between the petitioner 6 no.1 and the informant. It is true that in the opening lines in this agreement, which is annexure no.2 to the petition, it is stated that the petitioner no.1 is exclusive owner in possession of the flat and her name is recorded in the revenue records and it is also true that it is not correct. But, the question is whether it was dishonestly misrepresented then by the petitioner no.1. A document cannot be read in isolation. It has to be read in totality. Para 2 of the agreement stipulates that out of total sale consideration the informant shall deposit Rs.17,89,512/- till 31.03.2016 with MDDA. Para 3 of this agreement also stipulates that remaining sale consideration, shall be paid by the informant till the sale deed is executed and para 4 of it is more important. According to para 4 of the agreement, after 31.03.2016, the MDDA Dehradun would deliver possession of the flat and thereafter, the petitioner no.1 shall make herself available for registry with MDDA. These paras 2, 3 and 4 of the agreement, in fact, proves and establishes that the opening lines of the agreement were false and both the parties to the agreement knew it.
13. If for the sake of argument, it is believed that the petitioner no.1 induced and made false representation that she is owner and in possession of the flat, then what was the necessity and what was the need for the informant to agree to deposit some of the sale consideration with the MDDA and where was the need to agree that the possession will be given subsequent to 31.03.2016 by the MDDA. It means only one thing that both the parties knew that the falt had just been allotted in the name of petitioner no.1 and she had neither been given ownership nor was she given possession. So for that reason dishonoured inducement cannot be said at the inception.
14. This Court is cautious of the fact that in the proceedings under Section 482 of the Code meticulous examination of the evidence is not to be done. What this Court is appreciating now is the nature of the case. Is it a civil case with the element of criminality? Or is it purely a civil case? To that extent this evaluation is being done. 7
15. According to the FIR, the informant proceeded according to the agreement and he subsequently deposited Rs.10 Lakh with the MDDA. The date is important, which is 31.03.2016. Till that date, the informant was required to deposit Rs.70,89,512/-, but it was not deposited.
16. State has not filed any counter affidavit in this case. It is the claim of the petitioners that the allotment of the flat was under
onetime payment scheme and not under any horizontal reservation scheme. But, that stage had not come. The informant had not deposited the amount, as agreed by him in the agreement with the MDDA till 31.03.2016. It is not the case that informant had paid entire amount and still the petitioner no.1 did not execute the sale deed or was not able to execute the sale deed for the reason that she was barred by any clause of the allotment. It is not the case. Therefore, this Court is of the view that the instant is the case purely civil in nature. It has no element of criminality and the continuance of proceedings in nothing, but abuse of process of law. Therefore, the petition deserves to be allowed.
17. The petition is allowed. Charge sheet, cognizance and summoning order as well as entire proceedings of the case are quashed qua the petitioners.
(Ravindra Maithani, J.) 24.09.2020 Jitendra