Gayatri Singh @ Gayatri Devi And Ors vs State Of Jharkhand And Ors

Heard Mr. Shailesh, counsel appearing on behalf of the petitioners.

Mr. Mr. Sanjay Kumar Srivastava, counsel appearing on behalf of Respondent-State and also the counsel appearing on behalf of Opposite Party No.-2.

The instant petition has been filed for the following relief: -

"For an appropriate order quashing the entire criminal proceeding arising out of C. P. Case No. 500 of 2000 as well as order dated 15.07.2000 whereby and where the then learned Judicial Magistrate Shri V. Banerjee, Dhanbad was pleased to hold prima facie case as against the petitioners U/s 417/418/420/120 (B) I.P.C."

Counsel for the petitioners, by referring to the complaint petition, submits that the entire case arises out of purely civil dispute. It is alleged in the complaint petition that the accused persons had approached the complainant to sell their property and ultimately they entered into an agreement of sale dated 28.11.1997 for a total consideration amount of Rs. 1,44,000/- and an advance of Rs. 20,000/- was paid through cheque dated 28.11.1997. He further submits that it has been alleged in the complaint petition that the cheque of Rs. 20,000/- was encashed. The agreement was for a period of 11 months and the sale deed was to be executed after obtaining necessary permission. It is further alleged in the complaint petition that more than 28 months had passed and the accused neither attempted to obtain permission nor they register the sale deed in favour of the complainant and subsequently on 05.05.2000, when the complainant went to Registry Office, Dhanbad, he came to know that the property does not stand in the name of the accused persons. Accordingly, it is alleged that the accused persons had cheated the complainant for an amount of Rs. 20,000/-. It is also mentioned in the complaint petition that the complainant repeatedly approach the accused persons for refund of Rs. 20,000/-, which they ultimately refused to refund. Then on 15.05.2000, when the complainant went to the accused persons to get the money back, they used filthy language against the complainant and assaulted him with fists, slaps and kicks and pushed him out of their house. The counsel submits that although the case was registered under Sections 417/418/420/323/341 and 120 (B) of the Indian Penal Code, but cognizance has been taken under Sections 417/418/420/120 (B) of I.P.C. and no cognizance has been taken under Sections 323 and 341 of Indian Penal Code.

Counsel for the petitioners further submits that on the face of the allegations made in the complaint petition, it appears that the entire dispute arises out of pure civil dispute, in as much as, the matter relates to transaction of sale in connection with immovable property and it is alleged that the petitioners never had title over the property. He submits that so far as the agreement (Annexure1) to this petition is concerned, it has been mentioned in the agreement itself that if the vendors fail to execute and register the proper sale deed in favour of the purchaser within the aforesaid stipulated period, then the purchaser will be at liberty to get the sale deed registered through the court of law. He further submits that this agreement was entered into on 28th November, 1997 which was valid for a period of 11 months and was also subject to extension, but no extension was ever done. The counsel submits that the nature of dispute is of purely civil nature and no criminal case as alleged has been made out against the petitioners in the instant case. He further submits that the agreement of sale, which is the basis of the complaint case has been filed as Annexure-1 to this petition, which clearly provides for consequences of nonexecution of the sale deed and/or if any defect in title found later and the entire criminal case arises out of breach of contract. He further submits that in the agreement itself, it has been mentioned that the possession of the property was also handed over to the purchaser and it has not been alleged that from the very inception of the agreement to sale, the petitioners had any intention to cheat. He submits that aforesaid aspects of the matter has not been considered by the learned court below who has been mechanically taken cognizance and passed the impugned order.

Counsel for the petitioners has relied upon judgment passed by Hon'ble Supreme Court reported in (2014) 13 SCC 553 (Rashmi Jain vs. State of Uttar Pradesh and Another) as well as Judgment passed by a co-ordinate Bench of this Court in W.P. (Cr.) No. 135 of 2017 (Sidheshwar Singh vs. State of Jharkhand & Another) and submits that the pure civil dispute has been given a criminal colour and the entire criminal proceeding is an abuse of process of law and is covered by the criteria, which has been laid down by the Hon'ble Supreme Court in the case of Bhajan Lal vs. State of Haryana reported in AIR 1992 SC 604. He has specifically referred to Para-5 of the judgment passed by a co-ordinate Bench of this Court in the case of Sidheshwar Singh vs. State of Jharkhand & Another (supra).

Counsel for the petitioners also submits that between the same parties i.e. petitioner Nos. 2 & 3 and the complainant, another agreement of sale of immovable property was entered into on the same date and under similar circumstances, criminal case was instituted and the entire criminal proceedings has been quashed by a co-ordinate Bench of this Court in Cr. M.P. No. 526 of 2009 reported in 2012 SCC Online Jhar 860 (Abhay Rana @ Abhay Kumar Rana & Anr. Vs. The State of Jharkhand & Anr.).

Counsel appearing on behalf of the Opposite Parties opposed the prayer of the petitioners and submitted that considering the facts and circumstances of this case, the present petition may not be allowed.

After hearing the counsel for the parties, this Court finds that as per the complaint petition itself, there was an agreement of sale entered into between the complainant and the accused persons in connection with certain immovable properties, which was claimed by the petitioners to be belonging to the petitioners and in connection with which an advance amount of Rs. 20,000/- was taken by the petitioners. The agreement of sale is an undisputed document annexed as Annexure-1 to this petition and is the basis of the complaint case. The agreement of sale itself indicated that if the vendors failed to execute the sale deed, the purchaser will be at liberty to get it executed through the process of court and if in future any defect in title is found, the vendors shall be responsible for the same and refund the advance money with interest. The agreement also indicates that the possession of the property was handed over to the purchasers by the vendors (petitioners). Subsequently, it appears that the complainant made certain enquiry and as per the complainant, he came to know that the property does not belong to the petitioners. This Court finds that there is no allegation that right from the stage of entering into the agreement of sale the petitioner had any intention to cheat the complainant and as per the agreement itself, possession of the property was handed over to the purchaser (complainant).

This Court further finds that the basic ingredients of the alleged offence under Sections 417, 418, 420 and 120(B) against the petitioners is totally missing, in as much as, there is no element of deception or dishonest intention from beginning so as to attract aforesaid sections of Indian Penal Code and the point as to whether the petitioners had title over the property or not, is itself in the realm of pure civil dispute and as per the agreement itself, the possession of the property was handed over by the accused persons to the complainant. The learned court below while passing the impugned order has not applied its judicial mind to the aforesaid aspects.

Considering the nature of allegations made in the complaint petition and the agreement (Annexure-1), which admitted document and the basis for filing the criminal case) available on record, this Court finds that the entire dispute involved in this case is of pure civil dispute and basic ingredient of offence under Sections 417, 418, 420 and 120(B) is totally missing and the instant criminal proceedings as against the petitioners is an abuse of the process of law which call for exercise of powers under Section 482 of the Code of Criminal Procedure, 1973. In order to prevent the abuse of the process of law and to secure the ends of justice, the entire criminal proceeding as against the petitioners arising out of C. P. Case No. 500 of 2000 as well as order dated 15.07.2000 under Sections 417/418/420/120(B) of the Indian Penal Code, is hereby quashed.

Accordingly, the instant Cr. M.P. No. 896 of 2011, is hereby allowed.