Gagandeep vs State of Punjab

Naresh Kumar Sanghi, J.—The present petition has been filed by the petitioner-Gagandeep u/s 482, Cr.P.C., for quashing of FIR No. 66, dated 17.12.2011, under Sections 120-B, 406 and 420, IPC, registered at Police Station, Division No. 8 (Kailash Chowk), Ludhiana (Annexure P-12) and all the consequential proceedings arising therefrom.

Learned counsel for the petitioner submitted that perusal of the FIR would reveal that no offence u/s 120-B, 406 and 420, IPC, is made out so far as the petitioner, Gagandeep, is concerned; a case of civil dispute has been given the shape of the criminal case; respondent No. 2/complainant, Bhupesh Gogia did not honour the obligations arising out of the agreements Annexures P-1 and P-2 and insisted upon to transfer the land in favour of respondent No. 2/complainant under the garb of the impugned FIR. He further submitted that respondent No. 2/complainant wanted to get the sale deed executed without making the entire payment as had been agreed between Inderjit and respondent No. 2/complainant; that the impugned FIR was lodged with mala-fide intention just to wreak vengeance; and that the allegations levelled in the FIR are absurd and miserably improbable on the basis of which no prudent person could ever reach a conclusion that there was sufficient ground for proceedings against the petitioner.

In support of his contentions, learned counsel for the petitioner has placed reliance on the following judgments:-

Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, ;

Suresh Vs. Mahadevappa Shivappa Danannava and Another, ;

Nageshwar Prasad Singh alias Sinha Vs. Narayan Singh and Another, ;

All Cargo Movers (I) Pvt. Ltd. and Others Vs. Dhanesh Badarmal Jain and Another, ;

Hridaya Ranjan Pd. Verma and Others Vs. State of Bihar and Another, ;

Manisha Goyal Vs. State of Punjab, ;

Arun Kumar and Another Vs. State of Punjab and Another, ;

Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, ; and

Ram Biraji Devi and Another Vs. Umesh Kumar Singh and Another, .

On the other hand, learned counsel for the respondents had vehemently opposed the prayer of the learned counsel for the petitioner and submitted that from the perusal of the FIR and the other material collected during the course of investigation, it was apparently clear that in continuation of the conspiracy hatched by the petitioner and his co-accused Inderjit had a mala-fide intention to commit cheating and criminal breach of trust with the petitioner. They further submitted that after thorough investigation, the charge-sheet (report u/s 173, Cr.P.C.) had already been submitted before the learned trial court. Even the charges were framed on 20.11.2012 but the said order of framing of the charges was not challenged by the petitioner. They further submitted that pendency of the civil litigation between the same parties regarding the same piece of land would not by itself be sufficient to quash the criminal proceedings.

I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.

The brief facts of the case are that on the basis of an application presented by respondent No. 2/complainant FIR (Annexure P-12) was registered against the petitioner and his co-accused. It was alleged by the complainant that the accused had approached him and disclosed that Inderjit was owner of plot Nos. 6, 7, 27, 117, 118, each measuring 131 square yards as per jamabandi for the year 2001-02 situated at Taraf Peeru Banda, Hadbast No. 167, Abadi known as Near Pritam Nagar, Tehsil and District Ludhiana and told that he (Inderjit) wanted to sell the above said plots to respondent No. 2/complainant at the rate of Rs. 4900/- per square yard and Rs. 5000/- per square yard respectively. Separate agreements to sell dated 05.06.2008 were reduced into writing and 15.10.2008 was fixed for execution of the sale deed. In spite of the fact that the entire payment with regard to plot Nos. 27, 117 and 118 was charged by the accused, sale deeds in favour of respondent No. 2/complainant were not executed. The complainant issued the notices and by mutual agreement 15.06.2010 was fixed for execution of the sale deed. The accused did not fulfil his obligation. On inquiry by respondent No. 2/complainant it was revealed that the accused had sold the property in dispute to some other person in order to commit the cheating with respondent No. 2/complainant. In spite of the repeated request of respondent No. 2/complainant, the accused did not return his money nor executed the sale deed. During investigation, it emerged on record that the respondent/complainant had paid Rs. 5,40,000/- as earnest money in the presence of Sanjiv Kumar and Rohit Pathak. 15.10.2008 was fixed for execution of the sale deeds. Yet another agreement to sell was executed between the complainant and the accused on 20.05.2008 in respect of plot Nos. 60, 61, 23 and 24 each measuring 129 square yards at the rate of Rs. 5000/- per square yard and an amount of Rs. 5,00,000/- was paid as an earnest money on the same date. 15.10.2008 was fixed for execution of the sale deed. In spite of making the entire payment for three plots to the petitioner, Gagandeep (grandson of Inderjit) against receipt neither the sale deeds were executed nor the amount was returned to the complainant. During investigation, it further transpired that Inderjit and Gagandeep (petitioner) had conspired with each other and in conspiracy thereof received Rs. 26,45,700/- from respondent No. 2/complainant, Bhupesh Gogia. After completion of the investigation, the charge-sheet (report u/s 173, Cr.P.C.) was prepared on 21.12.2012. On the basis of the said charge-sheet, the charges have also been framed.

In Inder Mohan Goswami''s case (supra) Hon''ble the Supreme Court held that there was growing tendency in business circles to convert purely simple disputes into criminal cases, because civil remedies are time consuming.

In Suresh''s case (supra) it was held that complaint alleging offence of cheating against accused-vendor for not executing sale deed was filed after 7 1/2 years of the alleged agreement. The execution of the agreement and acceptance of the advanced consideration was denied by the accused. The complainant after receiving such reply remained silent for three years and thereafter, filed the complaint. Since the complaint was time barred, therefore, it was held that cognizance of the complaint by the Magistrate shows non-application of mind. It was also found that during investigation, the police had given clean chit to the accused. In such circumstances, order taking cognizance and issuance of process was set aside.

In Nageshwar Prasad Singh''s case (supra) Hon''ble the Supreme Court held that liability, if any, arising by breach of contract is civil in nature and not criminal.

In All Cargo Movers (I) Pvt. Ltd.''s case (supra) Hon''ble the Supreme Court held that breach of contract simpliciter did not constitute offence.

In Hridaya Ranjan Pd. Verma''s case (supra) Hon''ble the Supreme Court held that if dishonest intention of the accused at the beginning of negotiations not made out by averments in complaint, in that situation, High Court was not justified in declining to quash the criminal proceedings.

In Manisha Goyal''s case (supra) this Court held that breach of contract and non-refunding of the earnest money would not would not give rise to an offence punishable u/s 420, IPC.

In Arun Kumar''s case (supra) this Court held that there was no allegation that the accused had dishonest intention right at the beginning and as such the FIR was quashed.

In Madhavrao Jiwaji Rao Scindia''s case (supra) Hon''ble the Supreme Court held that a case of breach of trust is both civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. If the ingredients of the criminal offences are wanting in that eventuality, the criminal proceedings are to be quashed.

In Ram Briaji Devi''s case (supra) Hon''ble the Supreme Court held that if no criminal liability of cheating, criminal breach of trust, could be attributed then the complaint was liable to be quashed.

To sum up the ratio of the judgments discussed above, it can be said that mere breach of contract would not give rise to criminal litigation; for attracting the mischief of cheating the intention of the accused should be ab-initio mala-fide; if the complaint of the criminal case was time barred it should not be allowed to continue.

It is deemed appropriate to discuss few more cases pronounced by Hon''ble Courts before proceeding with the facts of the case in hand.

In Subhash Agrawal and Another Vs. State of Bihar, it was held that investigation could not be stopped merely because civil suit was pending and the criminal proceedings could proceed if FIR disclosed a cognizable offence.

In Vajendla Shri Niwasa Parshad vs. State of A.P., AIR 2006 SC 2780 Hon''ble the Supreme Court held that the criminal proceedings would not be quashed merely because the complainant had got civil remedy.

In V. Kothari and Others Vs. State of U.P. and Others, , it was held that mere filing of a civil suit or pendency of the arbitration proceedings by themselves would not absolve criminal Court of its responsibility to punish a guilty if from the evidence the offences are made out.

In Hamida Vs. Rashid @ Rasheed and Others, , Hon''ble the Supreme Court held that inherent powers u/s 482, Cr.P.C., could be exercised only when no other remedy was available to the litigant. If the matter was covered by an express power the court could not give a go by to the statutory provisions and instead evolve a new provision under the garb of inherent jurisdiction.

From the perusal of the material available on record particularly the charge-sheet (report u/s 173, Cr.P.C.) (Annexure P-17), would reveal that the petitioner with his co-accused had ab-initio mala-fide intention to commit cheating with respondent No. 2/complainant and in consequence thereof, charged more than Rs. 25,00,000/- from him (complainant) and inspite of repeated demands not only failed to execute the sale deeds but also denied to return the amount. The disputed plots were even alienated in favour of some other person. After thorough investigation, the charge-sheet (report u/s 173, Cr.P.C.) has already been submitted and even the charges have been framed by the learned trial court. The order of framing of the charges were not challenged by the petitioner as per the learned counsel for the respondents.

In view of the totality of the facts and circumstances of the case, this Court is of the considered opinion that the ingredients of the offences for which the petitioner has been booked do exist and as such, no ground for quashing of the FIR and the consequential proceedings are made out.

Dismissed.