Jayant Chatterjee and Others vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicants, learned Counsel for opposite party No. 2 and learned A.G.A.

This application u/s 482, Cr. P.C. has been filed for quashing the order dated 1.11.2007, by which the discharge application moved by the applicants u/s 239, Cr. P.C. in pursuance of this Court''s order dated 20.6.2007, has been rejected by the Spl. C.J.M., Kanpur Nagar, as well as the entire proceedings in Case No. 135 of 2006, under Sections 406, 420, 120B, 504 and 506, I.P.C., P.S. Kotwali, District Kanpur Nagar, pending before the aforesaid Court.

The facts of this case were that a certain property was purchased by three persons, namely, the non-applicant, Samar Singh, applicant Jayant Chatterjee and opposite party No. 2, Anil Mehra, on 15.7.2003. It is stated that on 22.11.2003 Samar Singh sold his portion of the property to Jayant Chatterjee and Anil Mehra, who thereby became owner of half portion of the property each. Thereafter, it is alleged that some dispute arose between Jayant Chatterjee and Anil Mehra and Jayant Chatterjee sold his portion of the property to Samar Singh on 14.7.2005. Now Anil Mehra filed a Civil Suit No. 1017 of 2005 against Samar Singh on 15.7.2005, in which an interim order of maintaining status quo was passed. As there was a difficulty in utilization of the said property in dispute in the civil suit, hence a compromise was entered into between Anil Mehra and Samar Singh on 5.8.2005. It is alleged that in pursuance to the said compromise it was decided that half each of the farm house would be divided between Anil Mehra and Samar Singh and that subsequently Anil Mehra gave Rs. 1,50,000 to Samar Singh through cheques for divesting him of his share of the property. However, in spite of divestiture of his share, Samar Singh subsequently sold his property in pursuance of a conspiracy with the applicants to the applicant No. 2, Rubi Chatterjee.

It is argued by the learned Counsel for the applicants that in the compromise agreement dated 5.8.2005 there is no mention that Rs. 1,50,000 shall be paid by Anil Mehra to Samar Singh in future or that the said property was subsequently to be transferred to Anil Mehra. However, no explanation has been given in the application as to why the admitted payments by cheques of Rs. 1,50,000 were made by Anil Mehra to Samar Singh ; though it is suggested by the learned Counsel for the applicants that Anil Mehra and Samar Singh were business partners and the said payments could have been made for some business transaction. It is denied by the learned Counsel for opposite party No. 2 that Anil Mehra and Samar Singh are business partners. I think this is a question of fact which may appropriately be decided by the trial court.

It is also argued by the learned Counsel for the applicants that no sale-deed or sale-agreement could be entered into in this form as Section 54 of the Transfer of Property Act, as amended by U. P. Act No. 57 of 1976, requires that any such agreement must be a written and registered one.

I am not concerned with the legality of the sale-agreement. However, the question which troubles me is why the complainant would be paying three amounts of Rs. 50,000 each, totalling Rs. 1,50,000 to Samar Singh unless it was for the purpose of divesting Samar Singh of his share as alleged by the complainant. All these things will have to be clarified by the applicants when they lead their evidence in defence.

It is then argued that in any case the applicant Smt. Rubi was a bona fide purchaser for value. I am not impressed by this argument at this stage, because Smt. Rubi Chatterjee is the mother of Jayant Chatterjee, who was the original purchaser of the property alongwith Samar Singh and Anil Mehra, and may be expected to be in the know of things.

So far as the other applicant, P. K. Chatterjee is concerned, he is also a witness to the sale-deed, though he is not shown as a direct purchaser of the same. They are all family members, who resided in the same premises. Hence, it could not be ruled out at this stage that he was not part of the conspiracy to cheat.

It was then argued that no question of criminal breach of trust is made out as no property was entrusted to the applicants. I am not concerned with the question whether or not eventually an offence of criminal breach of trust will be established, but if, suppose, ''A'' and ''B'' enter into an agreement and ''B'' obtains money from ''A'' for transferring some property to ''A'', but instead of transferring the same to ''A'', ''B'' transfers the same to ''C'', and in the circumstances of the case ''C'' may be presumed to have knowledge of the status of the property because he is concerned with ''A'' and ''B'' with regard to the property in question from the very beginning. If this is the situation, then could it be said that the ingredients of cheating ''A'' are not involved here.

Learned Counsel for the applicants has placed reliance on two decisions of the Apex Court in Hridaya Ranjan Pd. Verma and Ors. v. State of Bihar and Anr. (XL) 2000 ACC 929: 2000 (2) ACR 953 and Inder Mohan Goswami v. State of Uttaranchal and others (LX) 2008 ACC 1: 2008 (1) ACR 586 . In the first case here, there was no intention to cheat or fraudulent or dishonest delivery of property. As I have mentioned above, by giving the example of ''A'', ''B'' and ''C'', here one party has received money from another person and transferred the property to the third party and, therefore, prima facie it could not be said that there were no ingredients of cheating involved. In the case of Inder Mohan Goswami (supra), it was observed that the dispute was purely of a civil nature and no dishonesty was involved there. Here, as I have shown, it cannot be said that the criminal outfit is necessarily ousted the moment a civil outfit is involved as held in Trisuns Chemical Industry Vs. Rajesh Agarwal and others, , that simply because an act involves civil liability, is not sufficient to denude it of its criminal outfit if the circumstances also suggest commission of a criminal offence. In this view of the matter, I find no illegality in the impugned order and whether the charge eventually is proved after leading evidence is to be determined by the trial court as at this stage all that is to be seen is whether the material available makes out a prima facie case against the accused.

There is no force in this application and it is rejected.

However, as the applicants have not got themselves bailed out, it is directed that if the applicants appear within 3 weeks before the courts below and apply for bail, their bail applications shall be disposed of expeditiously, if possibly, on the same date.

The observations made in this order have been made only for the purpose of deciding this application and will not bind the trial court which must decide the case on merits on the basis of the evidence led.