M.K. Mudgal, J.@mdashHeard.
2. Petitioner has filed this petition u/s 482 of the Cr.P.C. for quashing the order dated 12.10.2012 passed by Judicial Magistrate First Class,
Gwalior in Cr. Case No./2012 complaint whereby, cognizance u/s 420 of IPC was taken against the petitioner and respondent no. 2 on the
criminal complaint filed by the respondent no. 1 against them.
3. The facts stated in brief are that an agreement to sell dated 2.10.2011 was executed between the petitioner, respondent no. 2 and respondent
no. 1 for consideration of Rs. 1,06,50,000/- for purchase of a house situated in Shriram Colony Gwalior. Token money of Rs. 1 lac by cheque
and Rs. 10 lac by cash were also received by the petitioner and the respondent no. 2 from the respondent no. 1. Rest of the amount was agreed to
be paid at the time of execution of sale deed on 30th June, 2012. On the due date, the respondent no. 1 was ready for getting the sale deed
executed in his favour but the petitioner and respondent no. 2 did not turn up, for which, the respondent no. 1 got served a notice to the petitioner
and respondent no. 2 through his Advocate on 12.6.2012. The said notice was replied by the petitioner and respondent no. 2 on 18.7.2012
denying execution of the agreement to sell between them and respondent no. 1 claiming to be fake and forged. Hence, the respondent no. 1 filed a
civil miscellaneous proceedings u/s 9 of Arbitration and Conciliation Act, 1996 before the Court of VII ADJ, Gwalior stating that he has moved an
application before the Hon. High Court for appointment of Arbitrator u/s 11(6) of the Act and prayed to grant injunction against the petitioner and
respondent no. 2 not to transfer or create interest in the disputed property in favour of the third party till disposal of the application pending before
the Hon. High Court. That application was allowed by the court below vide order dated 25.9.2012 restraining the petitioner and respondent no. 2
from creating third party interest in the property in dispute till finalization of matter by the High Court regarding appointment of Arbitrator.
4. The respondent no. 1 filed a private complaint on 31.8.2012 against the petitioner and respondent no. 2 before the JMFC, Gwalior u/s 420 of
IPC. Learned JMFC court recording statements of witnesses u/s 200 and 202 of IPC, calling report from PS Padav District Gwalior and
considering the statements of witnesses and report of PS concerned took cognizance against the petitioner and respondent no. 2 u/s 420 of IPC.
Feeling aggrieved against the said order dated 12.10.2012, present petition has been filed.
5. Learned counsel for the petitioner submits that the learned trial court has committed error in taking cognizance against the petitioner and
respondent No. 2 as the dispute is of purely civil nature and if the terms and conditions of the agreement to sell was not complied with by the
petitioner and respondent No. 2, the complainant/respondent No. 1 ought to have taken appropriate steps for performance of the contract. In this
regard, the respondent No. 1/complainant filed a petition u/s 9 of Arbitration Act before the court of 7th Additional Session Judge, Gwalior and
further a petition for appointment of arbitrator has also been filed before the High Court. In this manner, where the respondent No. 1/complainant
has already availed the remedy for the performance of the contract, the criminal complaint filed by the respondent no. 1 is not maintainable. There
is neither criminal liability arising against the petitioner nor offence u/s 420 of IPC is made out against him because, the respondent no. 1 was not
cheated by the petitioner. Learned counsel placing reliance upon the judgment in the case of Inder Mohan Goswami and Another Vs. State of
Uttaranchal and Others, and Manoj Jain Vs. State of M.P., has submitted that where the dispute is of civil nature a party to the contract of sale
cannot be prosecuted for breach of contract u/s 420 of IPC. On the aforesaid grounds, learned counsel has prayed for quashing the impugned
order.
6. Learned counsel for the respondent No. 1 opposing the submissions submits that in this case the intention of the petitioner and the respondent
No. 2 were malafide from very beginning of the document as when the respondent No. 1/complainant got issued a notice dated 12.6.12 to the
petitioner and respondent no. 2 for performance of the agreement to sell dated 2.10.11, the said notice was replied by them on 18.7.12 wherein
they have stated that the agreement to sell dated 2.10.11 was not executed by them and the said document is a forged and fake document.
Further, they have also replied in the same manner in the proceedings of section 9 of Arbitration Act. In this manner, where the petitioner and
respondent No. 2 themselves denied the execution of the said agreement to sell and claimed it to be fake and forged, they cannot take the stand
that the dispute is of only civil nature. Learned counsel further contends that in such circumstances, it appears that the petitioner and respondent
No. 2 cheated the respondent No. 1/complainant by receiving Rs. 11 lacs and executed the agreement to sell in favour of the respondent No. 1 for
selling the land of their ownership had the intention to deceive the respondent no. 1. Learned counsel for the respondents placing reliance upon the
judgments in the case of Arun Bhandari Vs. State of U.P. and Others, R. Kalyani Vs. Janak C. Mehta and Others, Bhushan Kumar and Another
Vs. State (NCT of Delhi) and Another, and Dharam Pal and Others Vs. State of Haryana and Another, has contended that if any dispute is of civil
nature it does not debar a party to initiate proceedings for prosecution in a criminal case against the party who cheated and committed an offence
by making contract with the other party. Learned counsel further contends that the learned trial court having considered the entire statement and
documents on record passed the impugned order taking cognizance against the petitioner. The said order being well reasoned does not warrant
any interference in this petition filed u/s 482 of Cr.P.C. as continuation of the said proceedings cannot be treated to be an abuse of process of law.
Therefore, the petition be dismissed.
7. Heard the arguments and perused the record.
8. It is true that when the dispute is of a civil nature normally criminal prosecution should not be entertained in that matter and parties should
approach for their legal rights before the competent court as held by this court in the case of Manoj Jain (Supra). However, in this case the position
is different as when the notice dated 12.6.12 was served by the respondent No. 1/complainant to the petitioner and respondent No. 2 for
performance of the contract to sell dated 2.10.11, the said notice was replied by the petitioner on 18.7.12 wherein the petitioner and respondent
No. 2 having denied the execution of the said document have stated that the said document of agreement to sell is fake and forged and it was not
executed by them and the similar reply was filed by them in the proceedings of Section 9 of Arbitration Act filed by the respondent no. 1. The said
circumstances indicate that the intention of the petitioner was to deceive the respondent no. 1 from the beginning of the said contract. When the
petitioner himself has not appeared before the court with the clean hands, the extraordinary inherent power u/s 482 of Cr.P.C. of this court cannot
be invoked in his favour. In the aforesaid circumstances, it cannot be construed that this dispute is only of civil nature. When the execution of
document is denied by the petitioner and he claimed it to be fake and forged the criminal liability of the petitioner cannot be prima facie denied. The
learned trial court having considered the entire evidence on record passed the impugned order for taking cognizance against the petitioner. Further,
the impugned order is revisable. As held in Dwarka Prasad Jat Vs. State of M.P. and Others, Against that order, a criminal revision u/s 397 read
with Section 401 of Cr.P.C. should be filed before the competent court as held by the Apex Court in Mohit alias Sonu Vs. State of Bihar 2013
AIR SCW 3926 (Para 14 to 23). Where the alternative remedy was available to the petitioner, the jurisdiction u/s 482 of Cr.P.C. cannot be
invoked. Therefore, the said order does not require any interference in it. Hence, this petition filed u/s 482 of Cr.P.C. being devoid of merit is
hereby dismissed.