Rajasthan High Court - Jaipur
Rama Prakash Bhargav vs State Of Rajasthan And Anr on 17 April, 2013
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
ORDER
SB CRIMINAL MISC. PETITION NO.1118/2013
(Rama Prakash Bhargav Vs. State of Raj. & Anr.)
Date of Order :- 17.04.2013
Reportable
HON'BLE MR. JUSTICE R.S.CHAUHAN
Mr. Sudesh Bansal, for the petitioner.
The petitioner has prayed for quashing of the FIR No.94/2013, registered at Police Station Kanota, Jaipur Rural for offences under Sections 420, 406, 447, 143 and 506 IPC.
The brief facts of the case are that on 6.3.2013, Mr. Vijay Kumar Vijayvargiya lodged a report at Police Station Kanota on behalf of M/s. Amit Colonizers Ltd., a developer's company. In the report, he claimed that his company wanted to establish a residential colony by the name of Ashiana Colony in a land which belonged to the following Khatedars: Bhairu Prasad (deceased) (having a total land of 22.33 Hectares) and after his death his sons, Late Shri Hari Om Prakash having his land in Khasra Nos.35, 258 and 274 totaling 4.55 Hectares, Som Prakash having land in Khasra No.24, 25, 31 and 33 totaling 5.05 Hectares, Rama Prakash having his land in Khasra Nos.36, 271, 272 and 273 having a total area of 5.39 Hectares, Tribhuvan Prakash having his land in Khasra No.37 totaling 2.12 Hectares, and Atal Prakash having his land in Khasra Nos.26, 28, 29 and 32 having total area of 5.22 Hectares. Thus, all these five persons have a total land of 22.33 hectares. He further claimed that on 10.2.2001, Mr Rama Prakash (the petitioner before this court) contacted his company through a property dealer. The petitioner with the consent of his other four brothers, proposed to sell the above mentioned land to the company. He further alleged that the petitioner not only wanted to sell his own land, but on the basis of a will of his brother, Hari Om Prakash, he also wanted to sell the land which was registered in the name of his late brother, Hari Om Prakash. Thus, with the consent of his other brothers and on the basis of the will of Hari Om Prakash, he wanted to sell a total land admeasuring 22.33 Hectares to the company. It was agreed that the land would be sold @ Rs.2,11,000/- per bigha. Therefore, on 10.2.2001, the Director of the company, Vijay Kumar Vijayvargiya gave a cheque for Rs.5 Lacs to the petitione. The company was given a receipt by the petitioner. He further claimed that possession of the land was equally given to them on the said date.
He further claimed that his company started the construction; it constructed a boundary wall and took the electricity and water connections for the colony. He further alleged that part of the land which was left as the facility area for the colony, fell in the land which allegedly belonged to Late Hari Om Prakash and which was sold to them on the basis of the will. He further claimed that the petitioner and his brothers had prayed that a temple, dedicated to the memory of late Hari Om Prakash, should be constructed and a trust should be created which would be headed by the Director of the company. Keeping their wishes in mind, the complainant company agreed to the same. He further claimed that according to the petitioner and his brothers, Hari Om Prakash Bhargava had expired on 8.7.2000 and had left a will. A copy of the will was also given to them. According to the will, Khasra Nos.255, 258 and 274 having a total 4.55 Hectares belonged to Hari Om Prakash. On the basis of this will, the land falling in the above mentioned Khasra were equally sold to the company. However, when the company requested the petitioner to get the sale deed registered with regard to the said land, the petitioner and his brothers desisted. Therefore, the company sent notices to the petitioner and to his brothers. The petitioner informed the company that the land which earlier belonged to Hari Om Prakash has yet to be mutated in his name. He further informed them that due to cases filed by their sisters, the matter is sub-judice before a court. Although the brothers have gotten the sale deed in respect to their respective lands registered, the sale deed with respect to the land belonging to Hari Om Prakash is yet to be registered. He further alleged that despite the best efforts of the company to get the sale deed with regard to Hari Om Prakash's land registered, the petitioner and his brothers have not done so. Lastly, he alleged that on 2.3.2013, around 12.30 am few miscreants had entered the land and had uprooted the board of the company, and placed the name of a fictitious residential colony, namely Rameshwaram Vihar. This fact was immediately brought to the notice of the police. Moreover, he claimed that the petitioner and others have started threatening the persons who have bought plots from the company. On the basis of this report, a formal FIR, namely FIR No.94/2013 for offences under Sections 420, 406, 447, 143 and 506 IPC was chalked out. Hence, this petition before this court.
Mr. Sudesh Bansal, the learned counsel for the petitioner, has vehemently raised the following contentions before this court: firstly, there was no privity of contract between the petitioner and the company with regard to the land which belonged to Hari Om Prakash. Hari Om Prakash had died in the year 2000, and the agreement was entered in the year 2001. Yet neither the agreement, nor the receipt given on 10.2.2001 makes a mention of the fact that the land that originally belonged to Hari Om Prakash is being sold. Therefore, the allegation made by the complainant that on the basis of a will the petitioner and his brothers had agreed to sell the land of Hari Om Prakash Bhargava is patently false.
Secondly, according to the FIR itself, the complainant claims that they had agreed for the construction of a temple dedicated to the memory of Hari Om Prakash Bhargava. However, this stand taken by the complainant belies his entire case that the land belonging to Hari Om Prakash was sold to them. In case the land were sold to them, the question of their taking a consent of the petitioner and his brothers for construction of a temple would not even arise.
Thirdly, according to the complainant, the land sold by the petitioner and his brothers with regard to aforesaid parcel of the land, the sale deed has already been registered and the amount given by the complainant to the petitioner and his brothers has already been adjusted. Thus, there is no breach of contract committed by the petitioner vis-a-vis his own land.
Fourthly, the allegations made in the FIR do not disclose the ingredients of Sections 420 and 406 IPC. For, neither any cheating, nor any criminal breach of trust has taken place. The amount paid by the complainant was vis-a-vis the land belonging to the petitioner and to his brothers. Therefore, the question of criminal breach of trust does not even arise.
Fifthly, after having received the receipt on 10.2.2001, the complainant company had entered into four separate agreements with the petitioner and his brothers dated 25.7.2001. Therefore, whatever understanding was with regard to entire land sold to the company stand superseded by the sale deed dated 27.2.2001.
Relying on the case of V.Y. Jose & Anr. Vs. State of Gujarat & Anr. [(2009) 3 SCC 78], the learned counsel has contended that although breach of contract per se would not come in the way of initiation of a criminal proceeding, yet in the absence of the averments made in the complaint wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 Cr.P.C. and should not allow abuse of the process of the court.
Relying on the case of Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr. [JT 2006(11) SC 133], the learned counsel has pleaded that if the ingredients of the offence do not exist after taking allegations on their face value, then this court would be justified in quashing the FIR/complaint.
Lastly, the learned counsel has contended that continuation of investigation in the FIR would tantamount to abuse of the process of the law. Thus, he has prayed that the FIR should be quashed by this court.
Heard the learned counsel for the petitioner and perused the impugned FIR as well as other documents submitted alongwith the petition.
It is, indeed, trite to state that the jurisdiction of this court in interfering with a FIR is an extremely limited one. The averments made in the FIR should be taken at their face value and should be accepted as uncontroverted facts. If the allegations reveal existence of the ingredients of offence(s), then this court should not interfere with the FIR. Therefore, at this moment this court is merely concerned with the allegations made in the FIR.
It is, indeed, trite to state that investigation is the domain of the police and not an arena where the High Court should interfere at the drop of hat. Moreover, at the initial stage when the investigation is in progress, the High Court should refrain from expressing its opinion on various issues which may be raised by the accused. For, any observation made by this court may hinder the investigation, and may also adversely affect the trial which may commence after the completion of the investigation. Moreover, certain issues may be raised before this court which are to be decided and adjudicated upon by the trial court. Hence, this court should refrain itself from commenting on such issues. For, it is too premature to comment on issues which require submission of evidence, assessment of evidence, and final judicial adjudication. At this juncture this court is merely concerned with the issue whether the ingredients of offence do exist after taking the allegations, made in the FIR, on their face value or not? This court cannot travel beyond this controversy for the reasons stated above.
The first contention raised by the learned counsel that there is no privity of contract between the complainant and the petitioner cannot be accepted for the simple reason that according to the complainant, the petitioner and his four brothers led the company to believe that Khasra Nos. 35, 258 and 274 belonged to Hari Om Prakash, who expired on 8.7.2000; he left a will behind him. They further led the complainant to believe that according to the will, the land in dispute was bequeathed to the petitioner. According to the complainant, even a copy of the said will was given to the company. Moreover, according to him, it was agreed that the land falling in Khasra Nos.35, 258 and 274 would equally be sold and is being sold to the company. Thus, the contention that there is no privity of contract between the petitioner and the complainant with regard to the land of Hari Om Prakash cannot be accepted at this juncture. After all, this issue has to be decided on the basis of evidence submitted during the trial.
Even if the receipt dated 10.2.2001 does not mention the fact that the land belonging to Hari Om Prakash is also part and parcel of the agreement to sell, it would not adversely affect, prima facie, the case of the complainant. For, the receipt merely records the fact that an amount of Rs.5 Lacs has been received through a cheque on 10.2.2001. The receipt does not disclose as to which part of the land the sale consideration relates to. Therefore, the receipt does not throw any light on the issue whether the land personally belonging to the petitioner, or to his brothers, or the land which belonged to Hari Om Prakash has been sold.
The contention that the receipt dated 10.2.2001 was subsequently superseded by four sale deeds dated 25.7.2001 is again a matter of evidence. Therefore, the said contention can neither be accepted, nor commented upon by this court at this juncture.
As stated above, at this juncture this court is merely concerned with seeing whether the offences under Sections 420, 406, 447, 506 IPC are made out or not. As mentioned above, according to the complainant they had given certain amount of money for buying the land which not only belonged to the petitioner and his brothers but, most importantly, which belonged to late Hari Om Prakash. According to the complainant, despite repeated requests of the company to get the sale deed registered with regard to the land of Hari Om Prakash, the petitioner has failed to do so. Thus, the complainant was, prima facie, justified in claiming that the petitioner had made a promise which they had failed to keep. Moreover, he has caused wrongful loss to the company, and has caused wrongful gain to himself. Hence, prima facie, the ingredients of Section 420 IPC do exist.
Since the money was entrusted, since the sale deed is yet to be registered with regard to the land formerly belonging to Hari Om Prakash, since the money is yet to be returned, obviously, the ingredients of Section 406 IPC, prima facie, do exist.
There are also allegations of trespassing on the land whose possession was given to the company. Thus, prima facie, the offence under Section 447 IPC seems to exist. There are allegations that the threats are being given to those persons who had bought plots from the company. Therefore, the offence under Section 506 IPC, prima facie, seems to exist.
Since prima facie the offences seem to exist, the contention raised by the learned counsel that the FIR is motivated one in order to pressurize the petitioner to part with the land which earlier belonged to Hari Om Prakash Bhargava, is unacceptable.
A large number of cases have started flooding this court where apparently land deals are struck, money transactions take place, yet the seller refuses to have the agreement to sell registered as a sale deed, or refuses to part with the land which he had promised to sell to the buyer. Repeatedly the contention is raised before this court that such a case is basically a case of civil nature. Repeatedly the contention is raised that the cases of civil nature are being given colour of criminal liability, but such a colouring amounts to abuse of the process of the law. Therefore, the FIR should be quashed.
The court reflects the mind of the society at large. When fraud is being played by a large number of people, when commercial transactions are being undermined and are being undone due to cleverness of people, this court has to take notice of the fact that in the garb of selling the land, the buyers are being cheated and defrauded of a parcel of land which they would be entitled to under a contract. Although the case begins as a case of civil nature, but due to malafide intention which creeps in, the case metamorphosises itself into a criminal one. The object of criminal law is to control the human conduct and to keep it within legal limits. The very reason for creation of criminal law is to ensure that the people are not cheated, are not defrauded, are not threatened and property is not trespassed by unscrupulous persons. Such unscrupulous persons cannot be given liberty to play havoc with the lives of the innocent persons in the garb of cases being of civil nature. If such a subterfuge were allowed by the courts, and if the courts were to turn a Nelson's eye to the prevalent practice in the society, to say the least, the courts would fail to fulfill their fundamental duty as the protectors of lives of innocent persons who are defrauded and who require protection of this court. After all the society has an inherent and instinctive sense of justice. The society demands that those who cheat and defraud the innocent persons should be booked, tried and if found guilty, to be punished.
The issues whether the person had an intention to cheat, the issue as to when this intention manifested itself, the issue whether there was a mens rea of commission of offence cannot be commented upon by this court while considering the issue whether the FIR deserves to be quashed or not. After all, these are issues which need appreciation of evidence, which can be done only by the trial court. This court cannot convert itself into a trial court in the garb of invoking its inherent jurisdiction under Section 482 Cr.P.C.
For the reasons stated above, this court does not find any merit in this petition. It is, hereby, dismissed. The stay application is also dismissed.
[R.S. Chauhan] J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA