Basanti Devi vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction  of  this  Court under  Section  528  of  the  B.N.S.S.,  2023  with  the prayer to quash and set aside the entire criminal proceeding including the First Information Report in connection with Basia P.S. Case No.35 of 2024 registered under Sections 341, 323, 406, 420, 506/34 of the Indian Penal Code against the petitioners.

The allegation against the petitioners is that the petitioner no.1 entered into an agreement for sale with the informant, to sale her 40 decimals of land at the rate of Rs.1 lakh per decimal and took an advance of Rs.5 lakhs in which agreement, the petitioner no.2, who is the son of the petitioner no.1  was the witness. The petitioner no.1  also took a cheque of Rs.3,80,000/- which was to be encashed by the petitioner no.1 at the time of registration of the sale deed, but when the informant went to take possession of the said land by erecting a fence, the petitioner no.2 and his relatives did maar-pit, causing minor injuries to the informant.

Learned counsel for the petitioners submit that the allegations against the petitioners are false and the petitioner no.1 has never executed any agreement for sale of her land with the informant. It is next submitted that  the  cheque  of  Rs.3,80,000/-  was  given  under  the  signature  of  Sanjay Barla, but not of the informant, which was never encashed. It is next submitted that the petitioner no.1 never received Rs.5 lakhs advance as claimed by the informant. It is then submitted that the petitioner no.1 has filed  a complaint  against  informant  and  other  persons  which  upon  being referred to police under Section 156(3) of the Cr.P.C.; police registered Basia P.S. Case No.50 of 2024 on 18.06.2024 and this case is a counter case of the said Complaint Case no.1865 of 2023 instituted by the petitioner no.1  on  24.07.2023.  It  is  next  submitted  that  even  if  the  entire  allegations made against the petitioners are considered to be true in their entirety, still none of the cognizable offences is made out against the petitioners. It is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.

Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in the instant Cr.M.P and submits that the materials in the record are sufficient to constitute each of the offences in respect of which the FIR has been registered and the case is at its nascent stage. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent  to  mention  here  that  it  is  a settled  principle  of  law  as  has  been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, para-12 of which reads as under:-

“12.xxxx In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.”(Emphasis supplied)

that the amount paid towards consideration cannot be said to have been  entrusted with the  accused person by  the  complainant and  merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. Under such settled principle of law, the only allegation against the petitioners being that they have taken an advance amount of Rs.5 lakhs, but are not selling their land, in the considered opinion of this Court, is not sufficient to constitute the offence punishable under Section 406 of the Indian Penal Code as the dispute between the parties is a civil dispute relating to breach of contract.

It is also a settled  principle  of law as has  been  held by the Hon’ble Supreme  Court  of  India  in  the  case  of  Murari  Lal  Gupta  vs.  Gopi  Singh reported in (2005) 13 SCC 699 wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that merely because an agreement to sell was entered into and which agreement, the accused person of the case failed to honour, it cannot be said that the seller has cheated  the respondent and no  case for  prosecution  under  Section  420 or Section 406 of the Indian Penal Code is made out. Para-6 of the said judgment, reads as under:-

“6.We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner,  who  is  a  resident  of  Delhi,  seems  to  be  an  attempt to pressurise the petitioner for coming to terms with the respondent.” (Emphasis supplied)

So far as the offence punishable under Section 420 of the Indian Penal  Code  is  concerned,  it  is  a settled  principle  of  law  as  has  been  held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-6 of which reads as under:-

“Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In  the present case  it has  nowhere  been stated that at the very inception there was any intention  on behalf of the accused persons to cheat which is a condition precedent for  an  offence  under  Section  420  IPC.”  (Emphasis supplied)

that in order to constitute an offence of cheating, the accused persons must have played deception since the very inception if the intention to cheat develops later on, the same will not amount to cheating. 9. It is also a settled  principle  of law as has  been  held by the Hon’ble Supreme Court of India in the case of Dalip Kaur & Ors. vs. Jagnar Singh & Anr. reported in (2009) 14 SCC 696, para 10 of which reads as under:-

“10. The High Court, therefore, should have posed a question as  to whether any  act of  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 Penal Code. (See Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703])” (emphasis supplied)

wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that 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 the offence of cheating.

Now  coming  to  the  facts  of  the  case,  there  is  no  allegation  against the petitioners of having played deception since the beginning of the transaction between the parties.

Under such circumstances, this Court is of the considered view that even  if  the  entire  allegations  made  against  the  petitioners  are  considered to be true in their entirety still the offence punishable under Section 420 of Indian PenalCode is not made out.

So far as the offence punishable under Section 341 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are as under:-

1) Accused obstructed a person;

2) He did it voluntarily;

3) It prevented such person from proceeding in certain direction in which he had the right to proceed.

Now  coming  to  the  facts  of  the  case,  there  is  no  allegation  against the petitioners of obstructing any  person. The Hon’ble Supreme Court  of India in the case of Rajinder Singh Katoch vs Chandigarh Administration  &  Ors  reported  in  (2007) 10  SCC  69,  relating  to  right  of

co-sharer to enjoy joint family property;  has observed that such right  is a civil  right  and  if  such  right  is  denied  by  the  co-sharers  for  one  reason  or the other, such right must be enforced by taking recourse to the remedies available under the civil laws and not by a criminal proceedings. The dispute between the parties no doubt admittedly amounts to a civil dispute.

Under such circumstances, this Court is of the considered view that even  if  the  entire  allegations  made  against  the  petitioners  are  considered to be true in their entirety still the offence punishable under Section 341 of Indian Penal Code is not made out and the remaining offences punishable under Section 323 and 506 of the Indian Penal Code are non-cognizable offences.

In view of the discussions made above, as none of the cognizable offences  is  made  out  against  the  petitioners  even  if  the  entire  allegations made  against  them  are  considered  to  be  true  in  their  entirety,  hence,  this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal  proceeding including the First Information Report in connection with Basia P.S. Case No.35 of 2024 registered under Sections 341, 323, 406, 420, 506/34 of the Indian Penal Code against the petitioners, be quashed and set aside.

Accordingly, the entire criminal proceeding including the First Information Report in connection with Basia P.S. Case No.35 of 2024 registered under Sections 341, 323, 406, 420, 506/34 of the Indian Penal Code against the petitioners, is quashed and set aside qua the petitioners only.

In the result, this Cr.M.P., stands allowed to the aforesaid extent only.