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Judgment
Gopal Krishan Vyas, J.—In this criminal miscellaneous petition filed u/s 482. CrPC the petitioner are challenging validity of cognizance taken by Additional Judicial Magistrate No. 1 (North) Udaipur dated 30.10.2004.
The petitioners have prayed for quashing the cognizance order passed by learned Additional Judicial Magistrate No. 1 (North), Udaipur and proceedings of the case on the ground that it is gross abuse of the process of Court. Complainants Kanhaiya Lal, Smt. Manju and Bhupesh Kumawat filed a complaint in the Court of Additional Judicial Magistrate No. 21 (North), Udaipur in which, it is stated that they purchased half of the total land measuring 3 bigha 11 biswa comprising in khasra No. 1557, 1559, 1580, 1581, 1582, 1583 and 1588/58 of village Sukher (Udaipur District). Said land was belonging to Mannalal Bheel and accused Ishwarilal was power of attorney of Mannalal Bheel. As per allegations, the land was purchased by the complainants at the rate of Rs. 3,50,000 per bigha and they paid total advance amount of consideration being Rs. 6,21,000 under agreement dated 19.12.2003 in which petitioner No. 1 Pramod Kumar Chhaparwal was one of the witnesses.
Later on, after executing the sale agreement when the complainants approached the accused petitioners and requested them to have the land mutated in their favour the accused refused to do so, therefore, they have committed offence under Sections 406 and 420 read with Section 120B, IPC. The above complaint was filed u/s 156(3) CrPC in the Court of Additional Judicial Magistrate No. 1 (North), Udaipur from where the complaint was sent to police station Dhanmandi and police registered FIR No. 71/2004 against the petitioners.
As per the petitioners, in the investigation statements of Kanhaiya Lal Kumawat, Manju Kumawat, Bhupesh Kumawat. Gopal Mehta. Devilal and Mannalal Bheel were recorded u/s 161, CrPC and sale agreement dated 19.12.2003 was produced before the investigating officer. After completion of the investigation, the police filed charge-sheet No. 111/2004 in the Court of Additional Judicial Magistrate No. 1 (North), Udiapur. Said Court after registering criminal case No. 824/2004 proceeded to take cognizance of the offences under Sections 406 and 420, IPC vide order dated 30.10.2004 against the petitioners.
Learned counsel for the petitioners submits that in the investigation as per statement of Mannalal Bheel who executed power of attorney in favour of Ishwarilal categorically stated that Ishwarilal is his power of attorney and said power of attorney was once expired but it was renewed, therefore, even if entire evidence is taken into consideration no offence under Sections 406 and 420, IPC is made out. Petitioner No. 1 is said to be witness of sale agreement executed by Ishwarilal and Ishwarilal was holding valid power of attorney in his favour. The dispute in the instant case is of civil nature therefore, whole proceedings including cognizance taken against the petitioners deserves to be quashed,
Learned counsel for the petitioner submits that in all, three complaints were filed, one after another by the complainants Nos. 2, 3 and 4 at different police stations of Udaipur regarding same civil transactions about selling of the land within the agricultural boundary of village Suker. Instant FIR No. 71 dated 24.5.2004 was filed at police station Dhanmandi. Another FIR bearing No. 58 dated 11.5.2004 under sections was filed for offences under Sections 467, 471, 406 and 420/34, IPC at police station Dhanmandi and FIR No. 179 dated 7.5.2004 was filed at police station Ambamata under Sections 420 and 406, IPC
In the above FIRs, after investigation, the police filed challan in the Court of Additional Judicial Magistrate No. 2, Udaipur (in FIR No. 179 dated 7.5.2004) and in the Court of Additional Judicial Magistrate No. 1 (North), Udiapur in relation to FIRs No. 58 and 71 of 2004 filed at police station Dhanmandi (Udaipur).
Learned counsel for the petitioners submits that for civil transactions only to harass the petitioner the above FIRs have been filed and the police ignoring the fact that it is civil transaction filed challan against the petitioners for offences under Sections 406 and 420, IPC, but, in fact, no offence is made out. As per learned counsel for the petitioners, the complainant filed these FIRs to harass and blackmail the petitioners which amounts to gross abuse of the process of court, therefore, this miscellaneous petition filed u/s 482, CrPC may be allowed while quashing the cognizance taken against the petitioners.
Learned counsel for the petitioners invited my attention towards the fact that in the investigation of this case the petitioner admits that agreement was arrived at in between him and complainant for selling the land and, during the course of investigation, the complainant himself produced agreement to sale dated 19.12.2003 executed by one Ishwarilal Suthar, power of attorney holder of seller Mannalal Bheel, in favour of the complainant, his wife and his son. Another agreement dated 19.12.2003 was also produced by the complainant executed by Neeraj Chhaparwal, power of attorney holder of sellers Kamaliya. Maganiya and Tolaram Bheel, so also, receipt which is given by the petitioner Pramod Kumar Chhaparwal for receiving Rs. 4,00,000 on 1.10.2003.
Learned counsel for the petitioners argued that despite the case being of civil transaction for the same, 3 different FIRs have been filed by the complainant only to harass the petitioner and his family whereas if the complainant was interested in purchase of land, then, the ought to have filed civil suit against the petitioner and his family members for executing the sale deed under the Specific Performance Act which was not filed by him. Learned counsel for the petitioner invited my attention towards the judgment of Hon''ble Supreme Court in the case of Dhariwal Tobaco Products Ltd. and Others Vs. Sate of Maharashtra and Another, in which, it has been held by the Apex Court that where proceedings amounts to abuse of the process of court, non-filing of revision does not put embargo upon exercise of power u/s 482, CrPC for quashing the same, therefore, this petition deserves to be allowed and cognizance taken by the trial Court may be quashed and set aside.
Learned counsel for the petitioners further invited attention of the Court towards the fact that there can be no second FIR in view of the judgment of Hon''ble Supreme Court in the case of T.T. Antony Vs. State of Kerala and Others, Further, while inviting attention towards judgment of the Supreme Court in the case of Dalip Kaur and Ors. v. Jagnar Singh and Anr. 2009 (4) RLW 3488 (SC) submitted that contradictory statement in the complaint about sale of plot clearly establishes that prima facie the case is not made out. While referring to the judgment of the Supreme Court in the case of Dalip Kuar and Ors. (supra), it is submitted by learned counsel for the petitioner that if the dispute between the parties was initially a civil dispute resulting in breach of contract the same would not constitute an offence of cheating.
Learned Counsel for the petitioner lastly argued that for any offence intention is to be gathered. Here, in this case, admittedly an agreement was executed in favour of the complainant and his family members after receipt of money in the month of December 2003, therefore, by giving colour to the civil dispute FIR has been filed which is totally illegal. In this view of the matter, it is prayed by learned counsel for the petitioner that cognizance taken against the petitioner in this case may be quashed.
Per contra, learned counsel for the complainant and learned Public Prosecutor argued that against the order of cognizance the petitioner is required to file revision petition, therefore, this petition u/s 482, CrPC is not maintainable. Further, it is argued that from the initial stage there was intention of the petitioners to cheat the complaints, therefore, this petition u/s 482, CrPC deserves to be dismissed.
Learned counsel for the complainant submitted that after investigation the police filed charge-sheet against the petitioners and from investigation it is revealed that prima facie case is made out against the petitioners for committing offences u/s 406 and 420 IPC, therefore, this petition may be dismissed.
After hearing learned counsel for the parties, I have perused the entire of the case.
It is very strange that even from perusal of the complaint filed by the complainants no case under Sections 406 and 420, IPC is made out because admittedly petitioner No. 1 Ishwarlal was holding power of attorney in his favour and he executed the agreement in favour of the complainants and if he was not executing the sale deed, then it was open for the complainant to file suit for specific performance of contract under the Specific Performance Act but the complainants did not choose to file the suit and straightaway filed complaint against the petitioners.
In the record of the case, certain Photostat copies were produced by the accused as well as by the complainant. There is Photostat copy of power of attorney executed by Devilal s/o Bheraji in favour of the petitioner Parmod Kumar Chhaparwal. Said power of attorney was executed on 16.8.2003. The investigating officer enclosed the said power of attorney and Photostat copies of agreement to sale executed by one power of attorney Ishwarilal and Neeraj Chhaparwal on 19.12.2003 which were filed by the complainant and which is part of the record.
In the investigation statement of Mannalal who executed power of attorney in favour of Ishwarilal was recorded u/s 161, CrPC which is as follows:
(Matter in other language)
Upon perusal of the above statement of Mannalal and power of attorney it appears that the allegations levelled by the complainant against the petitioner are of civil nature. There is assertion in the FIR that complainant was having friendship relation with the petitioner No. 1, therefore, there is force in the contention of learned counsel for the petitioners that by way of filing this criminal proceedings the complainant is giving colour of the civil dispute of a criminal act of the petitioners, therefore, in view of the judgment of the Apex Court in Dharimal Tobacco''s case (supra) the petitioners can challenge FIR by way of filing 482, CrPC petition while saying that FIR itself is abuse of the process of Court.
As per oral and documentary evidence upon which challan has been filed, it is case of non-execution of the sale deed by the petitioner No. 2, therefore, the controversy involved in this case is squarely covered by the judgment of the Apex Court reported in 2009 (4) RLW 3488 (SC), rendered in the case of Dalip Kaur and Ors. v. Jagnar Singh and Anr., (supra), in which, Apex Court held that if the dispute between the parties was initially a civil dispute resulting from breach of terms of contracts on the part of the appellant by non-refunding the amount of advance and non-executing sale, the same would not constitute offence of cheating. Paras 10 to 12 of the said judgment read as follows:
Sections 405 and 415 of the Indian Penal Code defining ''criminal breach of trust'' and ''cheating'' respectively read as under: "405--Criminal breach of trust--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 willfully suffers any other person so to do commits "criminal breach of trust.
Cheating--Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ''cheat''. "An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.
The ingredients of Section 420 of the Indian Penal Code are:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
The High Court, therefore, should have posed a question as to whether any act or inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code. (See Ajay Mitra Vs. State of M.P. and Others, .
As a result of the aforesaid discussion, while following the Apex Court judgment quoted hereinabove after taking into consideration the facts and circumstances of this case, this criminal miscellaneous petition is hereby allowed. The order of taking cognizance dated 30.10.2004 passed by Additional Judicial Magistrate (North) No. 1, Udiapur in criminal case No. 824/2004, arising out of FIR No. 71/2004 dated 24.5.2004, P.S. Dhanmandi (Udaipur) is quashed and set aside. Consequently entire proceedings in this case stand quashed.