Rajasthan High Court - Jaipur
Mahesh Kumar Jhalani vs State Of Rajasthan And Ors on 6 August, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1554/2016
Mahesh Kumar Jhalani Son Of Late Shri Bhagwan Sahai By Caste
Mahajan, R/o Village Morija District Chomu, District Jaipur.
----Petitioner
Versus
1. State Of Rajasthan Through P.p.
2. Ashok Kumar Meena Son Of Prabhu Dayal Meena, By
Caste Meena, R/o Village Morija Tehsil Chomu, District
Jaipur.
----Respondents
For Petitioner(s) : Mr. O.P. Mishra
For State : Mr. Arvind Bhadu, PP
For Complainant(s) : Mr. T.L. Pandeya for
Mr. Manoj Bhardwaj
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
06/08/2019
1. Petitioner has preferred this Criminal Miscellaneous Petition seeking quashing of F.I.R. No.43/2016.
2. It is contended by counsel for the petitioner that Respondent No.2 did not perform his part on the agreement, as a result of which a notice was given to the respondent and the agreement was cancelled.
3. It is contended that the dispute, if any, is of civil nature, hence, continuation of proceedings would tantamount to abuse of process of the Court.
4. Counsel for the petitioner has placed reliance on "Satishchandra Ratanlal Shah vs. State of Gujarat & Anr. 2019 SCC Online SC 196", "Surendra Singh Chawala vs. (Downloaded on 29/08/2019 at 10:41:05 PM) (2 of 4) [CRLMP-1554/2016] State of Rajasthan & Anr. decided by Rajasthan High Court, Jaipur Bench on 11.08.2017 in S.B. Criminal Misc. Petition No.5974/2016" & "G. Sagar Suri & Anr. vs. State of U.P. 2000 (1) Supreme 322."
5. It is also contended that after delivery of the notice, complainant has lodged the F.I.R.
6. Counsel for the complainant has opposed the present Criminal Miscellaneous Petition. It is contended that petitioner had taken major part of the sale consideration from the complainant and handed him the possession. It is the duty of the petitioner to get the mutation entries altered in the revenue record and then to execute the sale deed. Petitioner did not fulfill his part of the agreement and with an intention to cheat the complainant has sold the property and thereafter has given notice regarding cancellation of the agreement and for refunding the amount.
7. I have considered the contentions.
8. In "Satishchandra Ratanlal Shah vs. State of Gujarat & Anr." (supra) a case before the Apex Court where a retired bank employee who had taken loan from the Company and on non payment of the loan amount, the Finance Company filed a complaint. Apex Court held that the same was a civil dispute and cautioned against criminalizing civil disputes, such as breach of contractual obligations.
9. In "G. Sagar Suri & Anr. vs. State of U.P." the facts before the Apex Court were that Directors of Company had taken loan of Rs.50 Lakhs and failed to return the same. Prior to the filing of a complaint, an application under Section 138 of N.I. Act was also filed. Apex Court held that the sole purpose of the complaint was to tyrannizing the accused. Apex Court further held (Downloaded on 29/08/2019 at 10:41:05 PM) (3 of 4) [CRLMP-1554/2016] that jurisdiction of the High Court is not to examine the matter superficially. It is to be seen if a matter which is essentially of civil nature has been given a cloak of criminal offence. Criminal proceedings should not be made a short cut of remedies available in law.
10. In "Surendra Singh Chawala vs. State of Rajasthan & Anr." (supra) the matter related to an agreement to sale. He had executed earnest money of Rs.10 Lakh and was postponing the date fixed for execution of the sale deed, on which complainant filed F.I.R. The suit for specific performance was filed which was decreed. High Court observed that the complainant has availed her civil remedy and the dispute is of civil nature.
11. Apex Court in "Dineshbhai Chandubhai Patel vs. State of Gujarat & Ors. 2018(3) SCC Page 106" has held that where F.I.R. discloses prima facie commission of any cognizable offence, High Court cannot act like an investigating agency. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. Apex Court observed that once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
12. From bare perusal of the F.I.R., it is revealed that an agreement was executed between the petitioner and the complainant. Petitioner without cancelling the agreement got the Mutation Entries No.1043 opened in favour of subsequent purchaser on 19.01.2015. The contention of counsel for the petitioner that the balance amount was not paid by the (Downloaded on 29/08/2019 at 10:41:05 PM) (4 of 4) [CRLMP-1554/2016] complainant also does not hold ground as in the agreement it is specifically mentioned that it would be the duty of the petitioner to get the mutation entries recorded and thereafter he was to inform the complainant and get the sale deed registered.
13. Judgment cited by counsel for the petitioner do not have any applicability on the facts of the case.
14. F.I.R. discloses commission of cognizable offence, no ground is made out for invoking the inherent powers, in view of the judgment of Apex Court in "Dineshbhai Chandubhai Patel vs. State of Gujarat & Ors." (supra) the Criminal Miscellaneous Petition seeking quashing of F.I.R. is dismissed. 15 Stay application stands disposed.
16. Any observation made by the Court shall not prejudice the Investigating Officer.
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