Anup Tiwari vs State Of Madhya Pradesh

The petitioner has preferred this application under Section 482 of Cr.P.C. for invoking the extraordinary jurisdiction of this Court and to quash the FIR

at Crime No.149/2017, registered at Police Station, Bajariya, District Bhopal for offence under Sections 420 and 406 of the I.P.C. and subsequent,

criminal proceeding as charge-sheet has been filed.

Bereft of the unnecessary details, the facts requisite for disposal of the petition are that the complainant Irfan Khan has a Battery and Inverter shop.

With intent to enhance his business, he wanted to establish a Battery and Inverter manufacturing unit. Liladhar Singh is a farmer whose land is

situated at Bina. The applicant Anup Tiwari assured him to get him allot a plot from the M.P. Industrial Department and after alluring him obtained of

Rs.35 lacs in different dates. The first payment of Rs.13 lacs was made at the house and in presence of Liladhar. Other amounts were paid in

installments. Neither the petitioner Anup Tiwari got him allot any land nor he returned his Rs.35 lacs. The applicant also allege that because of the

allurement by the accused Anup Tiwari, he handed over Rs.35 lacs to him. Anup Tiwari assured him to return money but did not return the same and

he cheated him. He deliberately given two cheques of Rs.10 lacs and 15 lacs knowing that the limit of the cheque was less then 10 lacs, therefore, the

accused/petitioner cheated the complainant and misused his money.

On this report, Crime No. 149/2017, has been registered at Police Station, Bajariya, Bhopal for offence under Sections 420 and 406 of IPC, against the

petitioner. Petitioner preferred this application under Section 482 Cr.P.C. on the ground that the FIR registered against the petitioner is absolutely false

and fabricated. Respondent No.2 and the applicant were not known to each other. Chequebook of the petitioner was lost before the date of

transaction. It seems that respondent No.2 had stolen the cheques or received them from someone knowing fully well that the same has been stolen.

The applicant did not have any agricultural land near Sagar. He never intended to sell any land to the respondent No.2. Respondent No.2 has

implicated the petitioner in false fabricated and frivolous prosecution. The documents filed by the applicant indicates that the applicant is innocent,

therefore, the FIR dated 23.05.2017 deserves to be quashed.

On behalf of the respondent/State, the application is vehemently opposed and it is contended that the applicant allured the complainant for sale of the

land. Subsequent, thereto obtained Rs. 13,00,000/- at the house of Liladhar and other amounts were paid on different dates. The complainant was

promised to get allotted a plot for establishing a factory but no such plot was allotted. It is contended that crime has been registered and investigation

has been stopped, therefore, further investigation could not be made. Hence, it would be appropriate to recall the interim order, so that investigation

can proceed.

On behalf of the respondent No.2, arguments advanced that the petitioner filed an application for anticipatory bail, which was registered as M.Cr.C.

No. 26564/2017, but the same was dismissed on 23.01.2018. The petitioner suppressing this fact, filed this petition under Section 482 of the Cr.P.C.

for quashing the FIR and has obtained the interim order for not taking any coercive action against the petitioner.

The petitioner has not come with clean hands. Had the petitioner mentioned about the rejection of the anticipatory bail, the petitioner could not have

granted any interim relief. In this regard, reliance has been placed in the case of “Amar Singh Vs. Union of India & others reported as 2011 (7)

SCC 69,†wherein the Apex Court has observed that Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead

the Courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with “unclean hands†and are not

entitled to be heard on the merits of their case.â€​

It is also contended that the petitioner has come with unclean hand therefore he is not entitled to get any relief. Primafacie case is made out against

the petitioner. District Industrial Center does not have any land in that area, which shows the dishonest intention of the petitioner right from the

beginning. The applicant has misrepresented himself and, therefore, is not entitled for any relief. He also referred Union of India & others Vs. B.R.

Bajaj & others 1994(2) SCC 277, wherein the Apex Court has held that “statutory power of police to investigate cannot be interfered with, in

exercise of inherent power of the Court. The order of the High Court was set aside.â€​

On behalf of the respondent No.2, it is argued that the petitioner deliberately by alluring obtained the amounts and did not get him allot any land nor

refunded the amount. He misrepresented and cheated the applicant, therefore, he is liable for the offence committed. It is also contended that until

unless the whole investigation is completed, Court cannot make out whether offence is made out or not, therefore, at the investigation stage, quashing

of the FIR does not seem to be in the interest of justice.

On behalf of the respondent No.2 reliance has been placed in the case State of Tamil Nadu Vs. S. Martin & others reported as 2018(5) 718, wherein

it is held that “interference of the High Court is not proper, completely incorrect and uncalled for, at a stage, when the investigation is yet to be

completed. The case was therefore restored to its file and it was directed to investigate and to proceed its logical conclusion.â€​

During the course of the arguments, counsel for the petitioner produced certain documents, which are sale-deeds, by which it was canvassed that the

wife of respondent has sold out the land by Ext. P/17 at Rs. 14,75,000/- to Chetnarayan Singh on 30.10.2012. It is also contended that by Ext. P/18

sale-deed a part of land was sold to Chetnarayan Singh by the respondent No.2 for Rs. 32,00,000/- on 30.10.2012 and by Ext.P/19, the respondent

No.2 sold the land to Chetnarayan for Rs. 9,60,500/- on 27.11.2013. On 26.11.2014, the complainant purchased the land by Annexure P/20 for Rs.

06,00,000/- from Diwakar Vishwakarma. By Ext.P/21, respondent No.2 purchased a piece of land from Kishore Kumar Saluja on 09.07.2015 for Rs.

9,00,000/- and by Ext. P/22 he purchased the land from Diwakar Vishwakarma on 03.11.2014 at a cost of Rs.9,00,000/-. Therefore, the complainant

had no money at the relevant time to give to the applicant.

The Police Reforms Cooperative Fraud, Lokseva Guarantee & Right to Information has written a letter to the Superintendent of Police, Bhopal for

investigation on twelve points but the same was not replied. It is also stated that the petitioner made several representations to the police on various

dates. On the date so alleged the complainant had no money to give to the accused/petitioner as per the documents, therefore, the complainant has

falsely implicated the applicant.

Refuting this allegation, counsel for the respondent-State argued that the petitioner had given the cheque to the complainant knowing very well that the

limit of the cheque is less than Rs. 10,00,000/-. Therefore, the accused-petitioner was having malafide intention right from the beginning to cheat,

hence, primafacie offence is made out against the petitioner for cognizable offence. The allegations are controverted. The petitioner’s conduct do

not warrant the exercise of powers under Section 482 of the Cr.P.C.

It would be appropriate to mention that in the case of Uma Shankar Gopalika Vs. State of Bihar 2005 (10) SCC 336, the Apex Court has held that

“the complaint does not disclose any offence under Section 420 of the IPC, case is purely of civil dispute. Continuing investigation would amount to

abuse of the process of the Court. The prosecution therefore is liable to be quashed.†But, in the present case things are in different footing. The

applicant has given the cheques to refund the amount and the cheques were dishonoured for the limit was of Rs. 10,00,000/-. This indicates the

intention of the accused/petitioner, therefore, this case law is not applicable in the present case.

Reliance has been placed in the case of V.Y. Jose and another 2009(3) SCC 78, the Apex Court has held that “Section 482 of the Cr.P.C. serves

a salutary purpose that a person should not be undergone harassment of litigation even though no case has been made out against him. The matter,

which involves dispute of civil nature, should not be allowed to become subject matter of criminal proceedings, which may be resorted to as a shortcut

to execution of a non-existence decree. Therefore, the complaint alleging cheating filed against the appellants was quashed under Section 482 of the

Cr.P.C.â€​

In that case there was dispute between the parties with regard to supply of machines and advance was given by the respondent No.2. The price was

settled and the machine was ready but the machine when inspected by respondent No.2, found that it will not achieve the specified level, therefore

criminal complaint was filed by the respondent No.2. In the present case, money was received for sale of land when the land was not in existence.

The amount was refunded by two cheques, which the accused knew bound to be dishonored. Therefore, the mens rea was existing in the present

case. Hence, it is not purely a civil case, therefore, this citation is not applicable in the present case.

Counsel for the petitioner has also placed reliance on Vesa Holdings Pvt. Ltd. & another. Vs. State of Kerala & others, reported as 2015(8) SCC 293,

wherein it is held that “time bound consultancy contract between the appellants and the complainant to settle loan with Bank. Non-payment of

consultancy fee due to settlement of loan beyond time limit fixed without help of complainant consultant. The said non-payment of consultancy fee

does not attract the ingredients of cheating under Section 420 of the IPC. The FIR was therefore directed to be quashed as abuse of process of the

Court.â€​

In the present case, the situation is completely different. The dispute is no more purely civil, therefore, this citation does not attract in the present case.

Apart from all this, it would be appropriate to mention that if the cheques of the petitioner were lost, the petitioner did not lodge any report nor did he

make any complaint to the concerned Bank. His signature in the cheques indicates that he signed the same. The cheques, which ought to have been

within limit of Rs.10,00,000/-, were issued for more than Rs.10,00,000/-. Therefore, the intention is clear and unambiguous. It would be appropriate to

note that as the case is not purely a civil case, further proceeding with the investigation would bring about the actual position.

In the case of State of Haryana Vs. Bhajanlal reported as 1992 supplementary (1) SCC 335, the Apex Court has laid down the principles, where the

FIR can be quashed. In the present case, the allegations made in the FIR are controverted and evidence collected in support of the same disclose

commission of offence. It constitutes a cognizable offence. The allegation made in the FIR is not absurd and inherently improbable. There is no

expressed legal bar engrafted in any of the provisions of the Code of Civil Procedure. The criminal proceeding is not manifestly attended with

malafide and the proceeding is not maliciously instituted. The evidence available on record, if prima-facie is accepted in its entirety, constitutes an

offence. It also discloses a cognizable offence justifying investigation. Therefore, the present petition for quashing of the FIR is not a fit case under

Section 482 of the Cr.P.C. Therefore, the petition is dismissed.