Gajanand vs State of Rajasthan and Others

Prashant Kumar Agarwal, J.—The accused-petitioner has filed this Criminal Writ Petition under Article 226 of the Constitution of India with a prayer to quash the First Information Report No. 254/2011 registered at Police Station Chirawa (District Jhunjhunu) for the offences under Sections 418, 419, 420, 406 and Section 120-B IPC.

Brief relevant facts for the disposal of this petition are that the respondent-complainant filed a complaint against the petitioner and his brother-Shri Nandlal for the offences under Sections 418, 419, 420, 406 and Section 120-B IPC with the averment that the petitioner entered into on agreement to sell a Nohra admeasuring 120 ft. X 120 ft. with the complainant on 7.2.2008 in lieu of a total sale consideration of Rs. 27,11,000/- and received Rs. 7,11,000/- from the complainant towards part payment of the sale consideration and it was agreed by him that after obtaining the rest of the amount he will execute a registered sale-deed in his favour within a period of a month. It was further averred that on 3.3.2008, the complainant alongwith some other persons went to the petitioner and asked him to execute registered sale-deed in his favour after obtaining rest of the amount and the complainant in presence of the aforesaid persons paid Rs. 15 lacs in cash to the petitioner and it was agreed between them that the rest of the amount would be paid at the time of execution of the sale-deed. It was further averred that the petitioner did not appear on 3.3.2008 before the concerned Sub-Registrar for execution of the sale-deed and, therefore, it was further agreed that the petitioner would appear before the Sub-Registrar on 5.3.2008 and execute the requisite sale-deed, but even then he failed to do so. It was further averred in the complaint that in the month of June 2011 from some reliable source it came into the knowledge of the complainant that a suit is pending between the petitioner and his brother in a Civil Court. It was alleged by the complainant that despite the fact that the suit was pending between the petitioner and his brother in a Civil Court and stay order has also been passed by it, even then the petitioner obtained Rs. 15 lacs from the complainant on 3.3.2008. It was averred that the act of the petitioner and his brother amounts to offences under Sections 418, 419, 420, 406 and Section 120-B IPC. The complaint so filed was sent for investigation under Section 156(3) Cr.P.C. to Police Station Chirawa and on that basis aforesaid FIR was registered and investigation commenced. In these circumstances, the present writ petition has been filed by one of the accused.

It was submitted by the learned counsel for the petitioner that for the disposal of this petition following facts are relevant to be considered by the Court:--

"(1) Petitioner and his elder brother-Shri Nandlal had some joint property including the land in dispute situated at Chirawa (District Jhunjhunu) and by way of a family settlement dated 25.1.1979, petitioner and his brother agreed to divide their joint property and as a result thereof the land in dispute came in the exclusive share of the petitioner. In respect of the said partition written document dated 19.6.1987 and a notarized family settlement dated 20.6.1987 were also executed between petitioner and his brother whereby the plot in dispute came in the share of the petitioner whereas their joint residential house came exclusively in the share of Shri Nandlal, elder brother of the petitioner.

(2) The land in dispute consists of two plots each having an area of 800 sq.yards bearing No. 122-A and 122-B and on the basis of family settlement arrived between petitioner and his brother, both these plots were entered exclusively in the name of the petitioner on 18.1.2008 in a record maintained by the Municipal Council, Chirawa.

(3) Petitioner entered into agreement to sell with the complainant on 7.2.2008 in lieu of a total sale consideration of Rs. 27,11,000/- and obtained from the complainant Rs. 7,11,000/- as advance in cash and it was agreed that the petitioner would execute a registered sale-deed in favour of the complainant within a period of one month after obtaining remaining amount of sale consideration from him.

(4) Brother of the petitioner-Shri Nandlal without any right and by concealing the fact of family settlement between him and the petitioner, on the basis of a sale-deed in his favour filed an application before the Municipal Council, Chirawa with a prayer that one of the aforesaid plots may be entered in his name in the record maintained by the Municipal Council and on the basis of that application, a public notice was issued by the Municipal Council on 20.2.2008.

(5) When the fact of aforesaid application and public notice came into the knowledge of the petitioner, he filed Civil Suit No. 8/2008 on 25.2.2008 against his brother-Shri Nandlal and Municipal Council, Chirawa for permanent injunction mainly on the ground that both the aforesaid plots came into his exclusive ownership and possession as a result of family settlement arrived between the petitioner and his brother and since then he has also made substantial construction on a part of the land.

(6) Vide order dated 27.2.2008 order of status quo was passed by the Court regarding the entries made in the record maintained by the Municipal Council and the Court also appointed a Commissioner to inspect the land in dispute and prepare inspection report.

(7) In compliance of the order made by the Court the Commissioner so appointed inspected the disputed land and prepared inspection report dated 27.2.2008 in which apart from other facts, it was mentioned that the disputed land is in the possession of the petitioner.

(8) When Shri Nandlal and his family members tried to interfere in the exclusive and peaceful possession of the petitioner, he lodged a report before Police Station Chirawa and after due inquiry a complaint under Section 107 read with Section 116(3) Cr.P.C. was filed by the SHO Police Station Chirawa against Shri Nandlal and his family members before the SDM, Chirawa.

(9) Shri Nandlal, brother of the petitioner, filed his written statement in the aforesaid Civil Suit on 23.10.2008 with the averment that the family settlement arrived between him and the petitioner was never acted upon and the plot which was purchased by him by way of a sale-deed remained his exclusive property as it was before the said family settlement and the residential house is still their joint property.

(10) After a lapse of about three years from the date of agreement the present FIR came to be registered on the basis of the complaint filed by the respondent-complainant."

It was submitted by the learned counsel for the petitioner that even if for the sake of arguments the allegations and the averments made in the complaint/FIR are taken on their face value and are accepted to be true and correct in entirety, even then it is clearly revealed that the dispute between the parties is essentially of civil nature as at the most it can be said that the petitioner failed to execute registered sale-deed in favour of the complainant as stipulated between them even after obtaining a part of sale consideration, but the complainant with an ulterior motive to harass and pressurize the petitioner has lodged a false and concocted FIR which is nothing but an abuse of process of law. It was further submitted that on the basis of material made available on record it is clear that the land in dispute came in the exclusive ownership and possession of the petitioner and entry to that effect also made in the record maintained by the Municipal Council but brother of the petitioner without any right managed to cancel that entry which compelled the petitioner to file the aforesaid suit against his brother and the Municipal Council which is being hotly contested by his brother after filing detailed written statement, but the complainant after a lapse of more than three years from the agreement to sell has lodged the FIR although he from the very beginning was in the knowledge of the fact that a civil suit is pending between petitioner and his brother regarding the land in dispute and stay order has also been passed by the Court. It was also submitted that a false averment has been made in the FIR that the petitioner received a further amount of Rs. 15 lacs from the complainant on 3.3.2008. No receipt of any kind has been filed by the complainant in respect of such payment and it is beyond any imagination that he paid such a huge amount to the petitioner without obtaining a receipt for it. This false statement has been made only with an oblique motive to show that the petitioner obtained the aforesaid amount from the complainant although, he was not in a position to execute registered sale-deed in favour of the complainant as dispute has arisen between petitioner and his brother and stay order has also been passed by the Court concerned. According to learned counsel for the petitioner for an offence to be made out under Section 420 IPC, well settled legal position is that fraudulent and dishonest intention to deceive some person on the part of the accused is to be disclosed at the time when promise or representation was made and offence under this provision cannot be made out merely because the accused failed to keep his promise or representation later on. According to him, it is a pure and simple case of breach of contract of sale which does not constitute offence of criminal breach of trust or cheating. According to him for an offence to be made out under Section 406 IPC, it is essential to show that some property was entrusted to the accused and he converted it for his own use, but in the present case no such allegation has been made even by the complainant himself. It was contended that merely because petitioner even after receiving part of the sale consideration from the complainant failed to execute sale-deed in his favour, it cannot be said that he has deceived the complainant or committed offence of criminal breach of trust more particularly in view of the fact that the petitioner is unable to execute sale-deed by the reason that the dispute has arisen between him and his brother in respect of the land in dispute and a hotly contested civil suit is pending between them and stay order has also been passed by the Court concerned. It was also submitted that suit for permanent injunction has already been filed by the petitioner against his brother and the Municipal Council in respect of the land in dispute on the ground that he is exclusive owner of it and is also in its possession and till the issue of ownership and possession is decided by the Civil Court, the petitioner is not in a position to execute a registered sale-deed in favour of the complainant after obtaining the rest of the sale consideration. It was also submitted that the petitioner in view of the subsequent development requested the complainant to receive back the advance amount of Rs. 7,11,000/- with interest but the complainant malafidely refused to accept the same and to harass and pressurize the petitioner lodged a false and concocted FIR. Petitioner is still ready and willing to refund the aforesaid amount alongwith the interest to the complainant in view of the aforesaid ongoing litigation. So far as offences under Sections 418 and 419 IPC are concerned, it was submitted that essential ingredients to constitute such offences are completely absent.

In support of his submissions learned counsel for the petitioner relied on the cases of Dalip Kaur and Others Vs. Jagnar Singh and Another, AIR 2009 SC 3191 : (2009) 9 JT 184 : (2009) 9 SCALE 255 : (2009) 14 SCC 696 : (2009) 10 SCR 264 : (2009) 7 UJ 3292 : (2009) AIRSCW 5117 : (2009) 5 Supreme 368 and Harmanpreet Singh Ahluwalia and Others Vs. State of Punjab and Others, (2009) CLT 1135 : (2009) CriLJ 3462 : (2009) 6 JT 375 : (2009) 7 SCALE 85 : (2009) 7 SCC 712 : (2009) 7 SCR 563 : (2009) AIRSCW 3976 .

On the other hand, learned Public Prosecutor assisted by the learned counsel for the complainant-respondent, submitted that the present case is no a simple and pure case of breach of contract giving rise to civil liability only on the part of the petitioner, but the overall conduct of the petitioner clearly shows that from the very beginning he was having fraudulent and dishonest intention to deceive the complainant as he received an initial amount of Rs. 7,11,000/- from the complainant at the time of execution of the agreement and further obtained a huge amount of Rs. 15 lacs on 3.3.2008 concealing the fact that the dispute has arisen between him and his brother and in respect thereof civil suit is also pending before a competent Court. It was also submitted that this fact is very much relevant that soon after the agreement of sell dated 7.2.2008, Shri Nandlal, brother of the petitioner on the basis of a sale-deed made an application to enter his name in regard to one of the plots in dispute in the Municipal record and after few days therefrom petitioner filed a suit against his brother and all these facts are clear indication of the fact that the aforesaid suit is a sham one which has been filed as a result of connivance between them as a pretext to refuse execution of sale-deed in favour of the complainant. It would be explained by the petitioner during the course of trial in what circumstances after so many years from the date on which petitioner and his brother allegedly entered into family settlement and soon after execution of agreement of sell in favour of the complainant, how dispute regarding ownership and possession of the land in dispute arose between the petitioner and his brother more particularly in view of the fact that the fact of such dispute and filing of the civil suit was never intimated by the petitioner to the complainant. It was submitted that it is well settled legal position that at the time of considering the question of quashing of FIR/complaint only prima facie has to be seen whether allegations made in it disclose essential ingredients of an offence or not and at this stage of the proceedings analysis of the allegation is not required to be made. It is also well settled legal position that for the same act of an accused civil and criminal proceedings can run simultaneously and, therefore, even if civil suit may be filed by the complainant for breach of contract against the petitioner or for any other remedy, it cannot be said that criminal proceedings arising from the present complaint/FIR cannot be continued. It was further submitted that although for an offence to be made out of cheating it is essential to prove that the accused had fraudulent or dishonest intention from the very beginning i.e. when such offence was committed but to infer such an intention the subsequent conduct of the accused is also relevant and it can be considered to arrive at a conclusion whether he had such intention from the very beginning or not? In the present case, the overall conduct of the petitioner which has already been referred is clear indication of the fact that he from the very beginning was having fraudulent and dishonest intention to cheat the complainant. It is relevant to note that in the plaint the petitioner has averred relevant facts in detail but the fact of agreement to sell in favour of the complainant has not been disclosed. It was further submitted that it is well settled legal position that at the stage of considering the issue of quashing of FIR in exercise of jurisdiction conferred on the High Court under Section 482 Cr.P.C. or under Article 226 of the Constitution of India, defence or proposed defence of the accused cannot be considered and only on the basis of prima facie perusal of the FIR and documents filed alongwith it, it is to be decided whether from them an offence is made out or not. In the present case, the material towards which the attention of the Court has been invited by the learned counsel for the petitioner and which has been filed alongwith the present petition at the most can come within the purview of defence of the petitioner, but the same cannot be considered to decide the issue involved in the present case. It was also submitted that so far as offence under Section 120-B IPC is concerned, it is well settled legal position that for such an offence it is almost impossible to collect direct evidence and on the basis of circumstantial evidence and surrounding facts, it can be inferred whether such an offence was committed or not. In the present case, the manner in which the dispute regarding ownership and possession of the land in dispute has arisen between petitioner and his brother is clearly indication of the fact that they have entered into criminal conspiracy with a sole purpose to deprive the complainant from the aforesaid land. To show the subsequent conduct of the petitioner and his brother, attention of the Court was invited to the fact that although in the aforesaid suit, issues were framed by the Court on 26.9.2008, but even then the petitioner has not produced his evidence till date and his brother has also not objected to it and it shows that the petitioner and his brother in connivance with each other are bent upon to linger on the suit so that execution of the sale-deed may be delayed as long as possible. It was also brought to the knowledge of the Court that no restrain order has been passed by the Civil Court prohibiting the petitioner to execute sale-deed in favour of the complainant. It was also submitted that the writ petition is liable to be dismissed as not maintainable as the application for grant of anticipatory bail under Section 438 Cr.P.C. filed by the petitioner has been dismissed by the Sessions Judge, Jhunjhunu vide order dated 10.1.2012 and this fact has not been disclosed in the petition.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. In the facts and circumstances of the case and material made available on record and in the light of well settled legal position, it is to be considered whether the aforesaid offences or any of them is made out or disclosed against the petitioner or not.

Office under Section 406 IPC

For an offence to be made under Section 406 IPC, first of all it is to be seen whether there was any criminal breach of trust as defined under Section 405 IPC on the part of the accused. As per Section 405 IPC, 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. Thus, the first and paramount ingredient for an offence of criminal breach of trust to be made out, it is required to be shown that some property was entrusted to the accused or he having dominion over such property dishonestly misappropriated or converted for own use that property. In the present case, it cannot be said that part of the sale consideration paid by the complainant to the petitioner as a result of sale transaction between them was "entrusted" to him in any manner or the petitioner had dominion over it on behalf of the complainant. I am of the considered opinion that when some amount of money is paid to the seller as a result of some transaction of sale and even if the seller subsequently refuses to refund that money to the buyer even then offence under Section 406 IPC cannot be said to be committed by the seller. In the present case, it is not the case of the complainant himself that there was a contract between them and the petitioner was bound to refund the advance payment made by him if by any reason the agreement of sell entered between them does not materialize. When the essential ingredients to make an act of an accused to be criminal breach of trust within the meaning of Section 405 IPC are completely absent, the offence punishable under Section 406 IPC cannot be said to be made out even prima facie against the petitioner.

Offence under Section 418 and 419 IPC

Section 418 provides that, whoever, cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Thus, for an offence of cheating as envisaged under this provision the most essential ingredient to be shown is that the accused either by law or by a legal contract was bound to protect the interest of the victim in the transaction to which the act of cheating related, but in the present case, it is not even the case of the complainant himself that the petitioner in any manner was bound to protect his interest.

Section 419 IPC provides that, whoever, cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 416 IPC provides that a person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.

In the present case, even if the allegations and the averments made in the complaint/FIR are accepted to be true and correct in entirety, even then it cannot be said that offence punishable under Section 419 IPC is disclosed against the petitioner.

Offence under Section 420 IPC

Section 420 IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. It is thus clear that for an offence to be made out under Section 420 IPC, it is to be shown that the accused cheats a person. The word "cheating" has been defined under Section 415 IPC, which provides that whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain 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 it likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". It is now well settled legal position that in order to constitute an offence of cheating the intention to deceive should be in existent at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating, but at the same time it is also well settled legal position that subsequent conduct of the accused is also a relevant factor to infer whether he had fraudulent or dishonest intention at the inception i.e. when the offence was committed.

In the present case, the subsequent conduct of the petitioner as pointed out by the learned counsel for the complainant and which has already been referred above, in my opinion is sufficient prima facie to infer that the petitioner from the very beginning was having a fraudulent and dishonest intention to deceive the complainant and to obtain from him money on the pretext of sale consideration against the sell of the disputed land without any intention to sell it to him. As already mentioned apart from an initial amount of Rs. 7,11,000/-, he further obtained a huge amount of Rs. 15 lacs on 3.3.2008 from the complainant concealing the fact that the dispute has arisen between him and his brother and in respect thereof civil suit is also pending before a competent Court. In view of the well settled legal position, at this stage of the proceedings the allegation and averment made by the complainant in the complaint/FIR regarding further payment of Rs. 15 lacs by him to the petitioner on 3.3.2008 is to be accepted in entirety although receipt therefor has not been produced by him. It is also very much relevant to note that soon after the agreement to sell dated 7.2.2008, Shri Nandlal, brother of the petitioner on the basis of a sale-deed made an application with a prayer to enter his name in regard to one of the plots in dispute in the Municipal record and after few days therefrom petitioner filed a suit against his brother and the same is pending since 2008 without any substantial progress and the petitioner failed to produce his evidence without any objection being raised by his brother as defendant although the issues were settled by the Court on 26.9.2008. The petitioner during the course of trial would get opportunity to explain in what circumstances after so many years from the date on which the petitioner and his brother allegedly entered into family settlement, but soon after execution of agreement to sell in favour of the complainant, how dispute regarding ownership and possession of the land in dispute suddenly arose between him and his brother, more particularly in view of the fact that the fact of such dispute and filing of the Civil Court was never intimated by the petitioner to the complainant. To ascertain the subsequent conduct of the petitioner this is also a relevant fact that although in the plaint the petitioner has averred relevant facts in detail, but the fact of agreement in favour of the complainant has not been disclosed. Again this fact is also relevant to find criminality on the part of the petitioner, atleast at this stage of the proceedings, that although no restrain order has been passed by the Civil Court prohibiting him to execute sale-deed in favour of the complainant, but even then no steps were taken by him for the execution of such sale-deed. Thus, from the overall conduct of the petitioner it can prima facie be inferred that he was having a criminal intention from the very beginning. Therefore, so far as offence under Section 420 IPC is concerned, it cannot be said that it is not even prima facie made out from the allegations made in the complaint/FIR and the material made available on record.

So far as the dispute between the parties is essentially a dispute of civil nature is concerned, it is well settled legal position that if prima facie there are ingredients of an offence, as disclosed from the complaint/FIR, the same cannot be quashed on the ground that civil proceedings can also be filed against the accused on the basis of same facts. It is now well settled legal position that both civil and criminal proceedings can proceed simultaneously, if essential ingredients of the offence are also made out. It is also well settled legal position that at the stage of considering the issue of quashing of FIR in exercise of jurisdiction conferred on the High Court under Section 482 Cr.P.C. or under Article 226 of the Constitution of India defence or proposed defence of the accused cannot be considered and only on the basis of prima facie perusal of the FIR and documents filed alongwith it, it is to be decided whether from them an offence is made out or not. In the present case, the material towards which the attention of the Court has been invited by the learned counsel for the petitioner and which has been filed alongwith the petition at the most can come within the purview of defence of the petitioner.

So far as offence under Section 120-B IPC is concerned, it is well settled that direct evidence for such an offence is hardly available and an offence under this provision can be inferred even on the basis of circumstantial evidence made available on record. In the present case, the overall conduct of the petitioner and his brother, which has already been referred above, is prima facie indication of the fact that both of them entered into criminal conspiracy anyhow to deprive the complainant from the land in dispute.

Consequently, the criminal writ petition is partly allowed and the FIR No. 254/2011 registered at Police Station Chirawa, District Jhunjhunu to the extent of offences under Sections 406, 418 and 419 IPC is quashed, but to the extent of offences under Sections 420 and 120-B IPC, the same is dismissed. The stay application also stands disposed of.