D.C.Jain and anr. vs Union Territory, Chandigarh and anr.

Harmohinder Kaur Sandhu, J.

On 22nd May, 1992 Shri H. S. Ahluwalia complainant made a complaint to the Senior Superintendent of Police, U. T. Chandigarh which is as follows :

"On 29th June, 1990 one D. C. Jain son of Khairati Ram, resident of House No. 1138 Sector 43B and his wife Mrs. Usha Jain represented to him that they had agreed to purchase Plot No. 2125, Sector 38C, Chandigarh from one Mohinder Singh of Ludhiana for a sum of Rs. 6,06,000/ and had paid Rs. 15,150/ to the Government as 25% of the sale price. They further represented that the plot was free from all encumbrances but they were not in a position to pay the balance installments to the Government and therefore, were prepared to sell the plot to him for a sum of Rs. 6,00,000/ only and according to them the market price of the plot was much higher and they would be in a position to find a customer who would pay the about Rs. 9 lacs or so, within two years. They should be allowed to find a customer who would pay the central profit to the after paying him his money alongwith interest at the rate of 24% per annum and if they could not do so, the plot would belong to him. They were to give advance notice about the customer and pay the advance received from that customer directly. In pursuance to this agreement, they received a total sum of Rs. 3,40,000/ i. e. Rs. 1,10,000/ on 2961990 on which date of agreement to fell was executed and Rs. 2,30,000/ on 691990. They told him that they would be clearing the dues of the Estate Office and would soon execute the sale deed or return the advance price. They reaffirmed their promise during telephone talks. He wrote a letter to Mr. D. C. Jain Under Postal Certificate on 2541992 and when he did not get any reply he sent two letters in detail by Registered Post Acknowledgement due. The acknowledgements were received back but there was no reply. He came to know that they had received about Rs. 9 lacs on account of the price of the plot from one Ajit Singh of House No. 264 Phase 1, Mohali somewhere in September, 1991 but they never informed him of about this deal nor they paid a single penny therefrom. In fact his information was that they utilised the entire money recovered from him for the purchase of two buses and furniture for three private schools. Their action amounted to an offence of criminal breach of trust and cheating. So a case may kindly be registered and the article purchased by them may be recovered so that evidence of the matter may not be lost."

On the basis of this complaint after legal opinion was sought case FIR No. 127 of 1992 under Sections 406/420 of the Indian Penal Code was registered against Shri D. C. Jain and his wife Smt. Usha Jain at Police Station West on 7111992. Shri D. C. Jain and his wife have filed the present petition under Section 482 of the Code of Criminal Procedure for quashing the above referred First Information Report.

The petitioners alleged that Shri Mohinder Singh had executed an agreement to sell the plot in favour of petitioner No. 1 and had executed a General Power of Attorney in favour of petitioner No. 2 and they were to pay the future instalments. They ran short of money. So they approached the complainant Shri H. S. Ahluwalia for a loan of Rs. 1 lac. The complaint Shri H. S. Ahluwalia for a loan of Rs. 1 lac. The complainant agreed to advance loan on the condition that they were to execute an agreement to sell the alleged plot in his favour and to hand over the original documents to him as security. The agreement was prepared but the complainant changed his mind and did not make payment on plea that surety offered was inadequate and that is why agreement was not signed by petitioner No 2. Possession of the plot was then delivered to Ajit Singh as he deposited the remaining three instalments with interest in the Estate Office, Chandigarh. The First Information Report did not reveal any offence and there were no allegations of any dishonest or fraudulent intention on the part of the petitioners. Even if the allegations were assumed to be true, the same merely amounted to breach of an agreement or promise to refund the amount alongwith interest and no criminal offence was made out. A civil suit had already been filed by them in which the complainant filed his written statement and counter claim for rendition of accounts. The liability if any was purely civil and enforceable through civil court. There could be no offence of criminal breach of trust or cheating and the First Information Report against then was misconceived.

Shri H. S. Ahluwalia complainant who was impleaded as respondent No. 2 filed his return denying the averments made in the petition and contended that the offences under Section 406 and 420 of the Indian Penal Code were duty made out as the petitioners had committed that no sale shall be made to any third party without his knowledge but they never informed him about the sale of the plot to Shri Ajit Singh or having received the sale consideration from him.

I have heard Mr. Deepak Arora Advocate for the petitioners Mr. Ajai Lamba Advocate for respondent No. 1 and Shri Sanjeev Walia Advocate for respondent No. 2 and have perused the record.

The main contention of the learned counsel for the petitioners was that a perusal of the First information Report shows that in fact the complainant advanced loan of Rs. 3,40,000/ which amount was to be returned to him alongwith interest at the rate of 24%. The only grievance of the complainant was that amount of loan and interest had been repaid to him and the plot had been further sold to one Ajit Singh. This was purely a case of civil wrong and the civil court was already seized of the matter. The learned counsel referred to Annexure P1 which was a copy of the suit filed by the petitioners for cancellation of alleged agreement dated 29.6.1990 executed by them in favour of the complainant. In support of his contention of alleged agreement dated 2961993 executed by them in favour of the complainant. In support of his contention reliance was also placed by the learned counsel for the petitioner on the case of Ramesh Chander and another v. Madan Gopal and another 1992 (2) Chandigarh Criminal Cases 506. In this case it war, observed as follows :

"Where the dispute raised was purely of a civil nature, criminal proceedings could not be initiated and no process could be issued and the continuation of the proceedings on that basis in the trial courts amounts to abuse of process of the court and are liable to be quashed in exercise of inherent powers."

It is well settled that the power of quashing criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extra ordinary or inherent powers do not confer any arbitrary jurisdiction on the court to act according to its whim or caprice. The question to be determined in this case is whether the allegations made in the First Information Report disclosed the ingredients of the alleged offences and whether the case has been got registered malafide with an ulterior motive to spite the petitioners due to private and personal grudge Criminal breach of trust which is punishable under section 405 of the Indian Penal Code is detained in Section 405 of the Indian Penal Code as under :

"Whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."

In the instant case it was alleged by the complainant in the First Information Report that he advanced a sum of Rs. 3,40,000/ to the petitioners on their short representation that they would pay the balance instalments to the government regarding Plot No. 2125, Sector 38C and then they will find a customer and sell the plot to him after giving information to the complaint. They were to return the amount alongwith interest at the rate of 24% as soon as customer was found but no intimation was given to the Complainant when the plot was sold to one Ajit Singh nor the amount was returned to him rather it was utilised for the purchase of two buses and furniture for three private schools and was thus misappropriated. The complainant did not file any civil suit for the recovery of the amount and it were the petitioners who filed a civil suit for getting the agreement cancelled and restraining the complainant from recovering the amount. A case of breach of trust is both a civil as well as a criminal wrong but the complainant cannot be forced to seek a dilatory remedy of a civil suit It is correct that the court cannot be utilised for any oblique purpose nor a civil dispute can be allowed to be settled with the aid of criminal law but when a prima facie case is made out the First Information Report cannot be quashed simply because the petitioners had already filed a civil suit. In Pratibha Rani v. Suraj Kumar and another, 1985(1) Recent Criminal Reports 539 , the Apex Court observed :

"There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import."

As the allegations made in the First Information Report taken at their face value and accepted in their entirety do constitute the offence as mentioned therein and the proceedings to be taken against the petitioners, are not malicious or vexatious. I find no merit in the petition and consequently dismiss the same.