Harsh Raj Chadha & Another vs State Of Uttarakhand & Another

Manoj K. Tiwari, J

This criminal miscellaneous application under Section 482 Cr.P.C. has been filed for quashing the charge-sheet filed against the applicants under Sections 420 & 120-B of I.P.C. and also the order dated 10.01.2014 passed by learned Chief Judicial Magistrate, Dehradun, whereby cognizance was taken against the applicants and they were summoned to face trial.

Mr. S.P.S. Panwar, learned Senior Advocate, appearing for the applicants, informed the Court that applicant No. 1 has died during pendency of this application. In such circumstances, this criminal miscellaneous application is abated qua applicant No. 1 - Harsh Raj Chadha.

Brief facts of the case shorn of unnecessary details are as follows. Applicant No. 2 (Smt. Dr. Kiran Chadha) is wife of applicant No. 1. They jointly purchased 40.43 acres of land situate in Village Misras Patti, Tehsil Vikas Nagar, District Dehradun from Gursarinder Singh Sidhu and Zora Singh (respondent no.2 herein) by a registered sale deed dated 21.10.2005. On the same day, i.e. 21.10.2005, Zora Singh (respondent No. 2) executed another sale deed in respect of 35.93 acres of land in favour of both the applicants, as power of attorney holder of Sohan Singh, Daljeet Singh and Jagjeet Singh. Schedule of the property given in both the sale deeds indicates that the land purchased by the applicants was spread over various Khasra numbers, including Khasra No. 2034/1M. In both the sale deeds, there is a recital that the sellers are the exclusive owners in beneficial enjoyment of their respective shares in the property and further that the sellers have delivered vacant possession of the property to the purchasers, who shall hold and enjoy the purchased property without any interruption or disturbance by the seller or any other person claiming through or under them.

In the year 2012, Zora Singh (respondent no. 2 herein) filed a suit for partition in the court of Civil Judge (S.D.), Vikas Nagar, District Dehradun, which was registered as Original Suit No. 29 of 2012. In the suit, it was contended that the entire land, including the land sold to the applicants by means of aforesaid sale deeds, originally belonged to M/s Gurunanak Fruit Utpadan Sahakari Samiti and subsequently it was purchased by ten persons, named in para 2 of the plaint by means of a sale deed which was registered in the office of Sub-Registrar, Dehradun on 12.01.1971. In para 7 of the plaint, it was stated that he owns 94.31 acres i.e. 23.86 per cent share in the total holding, therefore, he is entitled to partition of his share by metes and bounds.

After notice to the parties, learned trial court considered the temporary injunction application on 13.02.2013. Learned trial court directed the parties to maintain status quo till next date fixed in the matter. In the said order dated 13.02.2013, learned trial court noted the submission made on behalf of the plaintiff that defendant Nos. 1 & 2 (applicants herein) have sold major portion of land purchased by them and they are again going to sell out the remaining land. Learned trial court has also noted the consent given on behalf of defendant Nos. 1 & 2 (applicants herein) for passing the order of status quo.

The written statement filed by the applicants in the said suit is on record, wherein they have stated that possession of the land purchased was given to them by the plaintiff at the time of sale and they are continuing as co-owner in respect of the land in suit. It was further stated in para 16 of the written statement that plaintiff himself has sold land in the joint holding by means of sale deed dated 04.06.2009 in the absence of legal partition. In para 23 of the written statement, it was stated that applicant No. 1 has sold 22 acres land out of his holding by means of sale deed dated 23.01.2013 and the purchasers have not been made party to the suit, therefore, the suit is bad for non-joinder of necessary party.

On 27.04.2013, respondent No. 2 lodged one First Information Report against the applicants and two other persons, namely, Pavitra Singh Bajwa and Gurmukh Singh Bajwa (purchasers), which was registered as Case Crime No. 19 of 2013 under Sections 420, 466, 467, 468, 471 & 120-B of I.P.C. at Police Station Mussorrie, District Dehradun. In the FIR, it was alleged that respondent No. 2 is co-owner with applicants and certain other persons in respect of 395.27 acres of land situate in Village Misras Patti, Tehsil Vikas Nagar, District Dehradun; respondent No. 2 has undivided share of 23.86 per cent i.e. 94.31 acres, while 76.36 acre land in the aforesaid joint holding belongs to the applicants, which comes to 19.31 per cent; respondent No. 2 has filed Original Suit No. 29 of 2012 for partition of the joint holding, which is pending, and the applicants, despite knowledge of the said partition suit, have sold 9.028 acres (4.514 + 4.514 acres) land by means of two separate sale deeds dated 23.01.2013 in favour of Pavitra Singh Bajwa and Gurmukh Singh Bajwa, although they have no right to sell specified share. It was further alleged in the FIR that the applicants have forged the documents for causing wrongful loss to him (Zora Singh - respondent No. 2).

Pursuant to the FIR lodged by respondent No. 2, police investigated the matter. Since no material was found by the Investigating Officer for prosecuting the applicants for offences under Sections 466, 467, 468 & 471 of I.P.C., therefore, these sections were dropped and charge-sheet was filed against the applicants only under Sections 420 & 120-B of I.P.C. Pavitra Singh Bajwa and Gurmukh Singh Bajwa, who purchased land from the applicants, were also exonerated by the Investigating Officer and no charge-sheet was filed against them.

Learned Chief Judicial Magistrate took cognizance on the charge-sheet and summoned the applicants vide order dated 10.01.2014. Thus, feeling aggrieved, applicants have approached this Court by invoking inherent jurisdiction of this Court under Section 482 Cr.P.C.

Heard learned counsel for the parties and perused the record.

Learned counsel for the applicants submits that perusal of the FIR reveals that no offence is made out against the applicants, as sale of property by co-owner during pendency of partition suit filed by other co-owner does not constitute an offence and such sale cannot be said to be void and the transferee pendente lite would be bound by the decree passed in partition suit as much as if he were a party to the suit. He further submits that none of the ingredients of offence of cheating is made out against the applicants. He further submits that perusal of FIR indicates that it is purely a civil dispute which has been given colour of a criminal dispute for harassing and victimizing the applicants, who are retired civil servants. Thus, according to him, the criminal proceedings initiated at the instance of respondent No. 2 are vexatious and continuation of such vexatious criminal proceedings in the absence of any element of criminality tantamounts to abuse of process of law, therefore, the charge-sheet as well as cognizance/summoning order are liable to be quashed.

Per contra, learned counsel for respondent No.2 submits that the applicants illegally sold their undivided share in the joint property to two persons by means of separate sale deeds dated 23.03.2013, and therefore, they have been rightly charge-sheeted for the offences under Sections 420 & 120-B of I.P.C. He further submits that the applicants had executed sale deeds after the order of status quo passed by learned Civil Judge (S.D.), Vikas Nagar, Dehradun, which indicates that they were acting dishonestly.

After hearing learned counsel for the parties, I am of the opinion that this miscellaneous application deserves to be allowed and the charge-sheet as well as cognizance/summoning order are liable to be quashed. The reasons for forming such an opinion are as follows:

Hon'ble Supreme Court in the case of T.G. Ashok Kumar v. Govindammal reported in 2010 (14) SCC 370 has considered import of Section 52 of Transfer of Property Act and held that it does not declare a pendent lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. Para 12 to 15 of the said judgments are extracted below:-

"12. In Jayaram Mudaliar v. Ayyaswami1 this Court held (at SCC p. 218, para 47) that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. This Court in Hardev Singh v. Gurmail Singh held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.

The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected.

On the other hand, if the title of the pendente lite transferor is recognised or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion.

If the property transferred pendente lite, is allotted in entirety to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is, without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially."

Similar view has been expressed by Hon'ble Supreme Court in the case of T. Ravi v. B. Chinna Narsimha, reported in (2017) 7 SCC 342.

In such view of the matter, the submission made by learned counsel for the respondent is without any substance. In the absence of any allegation that applicants have transferred land in excess of their share in the joint holding, no criminality can be attached to the sale made by the applicants within their share. The total holding of the applicants is much more than what they have sold. Therefore, they were well within their right to execute the sale deed.

Even otherwise also, there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.

Section 415 of I.P.C. defines 'cheating' which is extracted below:-

"415. Cheating - 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 it he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to "cheat".

Punishment of cheating is provided in Section 420 of I.P.C., which is also extracted below:-

"420. Cheating and dishonestly inducing delivery of property- 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, an shall also be liable to fine."

The ingredients of Section 420 of Indian Penal Code are:

(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

Hon'ble Supreme Court in the case of S.W. Palanitkar and others Vs. State of Bihar and another, reported in (2002) 1 SCC 241, has held as under:

"10. The ingredients of the offence of cheating are:

(i) there should be fraudulent or dishonest inducement of a person by deceiving him,

(ii) (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm .to the person induced in body, mind, reputation or property."

In the present case, there is no allegation by the complainant that he delivered any property to the applicants due to deception or cheating. In the F.I.R., there is no allegation that respondent no. 2 was deceived or that he delivered any property to the applicants or to any other person due to such deception. The persons to whom land was sold by the applicants for money consideration have made no complaint against the applicants. Respondent no. 2, who sold his undivided share in the joint holding to the applicants and various other persons, cannot make any complaint, much less criminal complaint against the applicants.

From the aforesaid discussion, it is apparent that the act of the applicants' complained of does not constitute the offence of cheating.

Hon'ble Supreme Court in the case of Vinod Natesan Vs. State of Kerla and others, reported in (2019) 2 SCC 401, has held as under:

"10. Having heard the appellant as party in person and the learned advocates appearing on behalf of the original accused as well as the State of Kerala and considering the judgment1 and order passed by the High Court, we are of the opinion that the learned High Court has not committed any error in quashing the criminal proceedings initiated by the complainant. Even considering the allegations and averments made in the FIR and the case on behalf of the appellant, it cannot be said that the ingredients of Sections 406 and 420 are at all satisfied. The dispute between the parties at the most can be said to be the civil dispute and it is tried to be converted into a criminal dispute. Therefore, we are also of the opinion that continuing the criminal proceedings against the accused will be an abuse of process of law and, therefore, the High Court has rightly quashed the criminal proceedings. Merely because the original accused might not have paid the amount due and payable under the agreement or might not have paid the amount in lieu of one month's notice before terminating the agreement by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 IPC as alleged. We are in complete agreement with the view taken by the High Court."

Even otherwise also, the dispute, if any, between the complainant Zora Singh and the applicants is purely of civil nature. There is no allegation that the applicants have sold more land than their share in the joint holding. The only allegation is that they had sold land in the joint holding without partition by metes and bounds. This aspect can be taken care of by the Civil Court, which is seised of the Partition Suit.

The submission made on behalf of the respondent that applicants executed the sale deed, after the order of status quo passed by the trial court is also without any substance. Learned trial court passed order of status quo on 13.02.2013, while as per FIR itself, sale deeds in favour of Pavitra Singh Bajwa and Gurmukh Singh Bajwa were executed much earlier on 23.01.2013.

Even otherwise also, a party which violates an order of temporary injunction passed by Civil Court can be appropriately dealt with under Order 39 Rule 2 (A) of CPC and criminal prosecution for violation of order of temporary injunction would not be maintainable. Moreover, learned trial court had only directed the parties to maintain status quo and there was no injunction against sale of suit land by the parties to the suit.

From the aforesaid discussion, it is apparent that respondent No. 2 has converted a dispute, which is essentially of a civil nature, by giving a cloak of criminal offence. It is apparent that the dispute is in respect of land and the only allegation against the applicants is that they have sold their share in a joint holding without partition of the land by metes and bounds. The ingredient of cheating is also not made out against the applicants. Moreover, the complainant has availed his remedy before the Civil Court and the pending partition suit will take care of all those issues.

Hon'ble Supreme Court in the case of Paramjeet Batra v. State of Uttarakhand, reported in (2013) 11 SCC 673, has held that where a dispute is essentially of a civil nature is given a cloak of criminal offence, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of Court. Paragraph nos. 12 & 13 of the said judgment are extracted below:

"12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.

As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by Respondent 2 against him alleging offence under Section 406 IPC. Possession of the shop in question has also been handed over by the appellant to Respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. The High Court was wrong in holding otherwise."

Respondent no. 2 has filed an application under Section 340 Cr.P.C. alleging that applicants have made certain false averments on oath. It is alleged that the applicants have intentionally given his incorrect address in the criminal misc. application so that notice thereof may not be served upon him. In paragraph no.17 of his affidavit, respondent no. 2 has reproduced para nos. 4 & 11 of criminal misc. application filed by the applicants. However, nothing further has been said as to how the averments made in para nos. 4 & 11 of the criminal misc. application are false or misleading. Reply regarding incorrect address has been given in para 1 of the rejoinder affidavit filed by the applicant no. 1, where it has been stated that address mentioned in criminal misc. application was given by respondent no. 2 himself while he sold the land in question to the applicants. It is further stated that respondent no. 2 had never informed the applicants about the new address.

This Court finds that there is no material to initiate proceedings for perjury against the applicants. Respondent no. 2 himself has stated in para no. 3 of his affidavit that applicants have given his very old address in criminal misc. application which he has left long ago. Moreover, respondent no. 2 has not elaborated as to how averments made in para nos. 4 & 11 of the criminal misc. application filed by the applicants are incorrect. In such view of the matter, misc. application (CRMA No. 1575 of 2014) filed by respondent no. 2 is rejected.

Having regard to the aforesaid discussion, in my humble opinion, continuance of the pending criminal proceedings would be abuse of process of law, therefore, the criminal misc. application under Section 482 Cr.P.C. is allowed. Impugned charge sheet as well as summoning order dated 10.01.2014 passed by learned Chief Judicial Magistrate, Dehradun is quashed qua the applicant no. 2.