Kanwar Vishavjit Singh vs Atamdev Singh

A. P. Chowdhri, J.

Facts relevant for the disposal of this petition under section 482 of the Code of Criminal Procedure seeking quashing of a complaint, Annexure PI under sections 420120 B Indian Penal Code and summoning order, Annexure P5 dated May 25, 1990, passed by the Chief Judicial Magistrate, Kapurthala, may be briefly stated as under :

The petitioner and the respondent (hereinafter referred to as ''the complainant) are two branches of the family of one Sardar Gulab Singh. Shri Gulab Singh had five sons, of whom one was Shri Rajeshwar Singh. The complainant is grandson of Shri Rajeshwar Singh, being the son of Shri Segdev Singh. The petitioner is the adopted son of Sardarni Surjit Kaur, widow of Shri Prithvijit Singh son of Shri Gulab Singh. Shri Gulab Singh left considerable lands. The lands included khara Nos. 4531, 4532, 4533, 4534, 4535, 4546 and 4537 measuring 211 Kanals and I Marla, situate in the area of Kapurthala town. In 1967, the complainant claims to have obtained proprietary rights in respect of the aforesaid land. In 1978 the petitioner is stated to have dishonestly and fraudulently induced Shri Sehdev Singh. father of the complainant, and got attested mutations No. 6909 and 6910 dated August 9, 1978, as a result of which the petitioner got 3/4th share and Shri Sehdev Singh got 1/4th share in the lands covered by the two mutations, including the land in dispute. The complainant was aggrieved by the attestation of the two mutations. A compromise took place between the petitioner and the complainant on November 2, 1978. It was duly registered. It is Annexure P2. Broadly speaking, it was agreed between the parties that the terms of the compromise would override the two mutations referred to above, and the complainant (Atamdev Singh) shall be the exclusive owner in possession of land described above situate at Kapurthala. With regard to the other parcels of land, certain shares inter se were specified and with regard to that land it was agreed that if any land was to be sold or leased out or alienated in any other manner, the same shall be done with prior consent in writing of the other party. The case of the complainant is that in contravention of the compromise Annexure P2, the petitioner had created a lease of 99 Years for 4 petty fum of Rs. 50,000/ with regard to the 3/4th share of Khasra Nos. 4531 and 4532 measuring 115 Kanals 17 Marlas in favour of accused Nos. 2 and 3 on August 19, 1988, by a registered lease deed. The material averments in the complaint in para 12 are in these words :

"That the lease deed in favour of accused Nos. 2 and 3 has come into existence to harm the interest of the complainant by accused Vishvajit Singh in connivance with accused Nos. 2 and 3. The said lease deed has also been created by Vishvajit Singh accused with misrepresentation of the facts and with dishonest intentions in order to cause wrongful harm and loss to the complainant and wrongful gain to himself. Both the other accused Nos. 2 and 3 knew it fully well that Vishvajit Singh was not the owner of the property and they have also conspired with Vishvajit Singh to create a lease in their favour for 99 years for petty sum of Rs. 50,000/ though the property is worth lakhs."

The complainant filed the complaint under sections 420/120B, Indian Penal Code, against the petitioner and two others on or about April 4, 1989. After recording preliminary evidence, the Chief Judicial Magistrate summoned the petitioner under section 420, Indian Penal Code, by order Annexure P5. The petitioner seeks quashing of the complaint and the summoning order under section 482, Code of Criminal Procedure.

The grounds on which quashing of the complaint is sought are :

(i) The facts alleged in the complaint do not constitute an offence under section 420, Indian Penal Code; and

(ii) If at all, the subject matter disclosed a civil dispute and in fact the respondent himself had started civil litigation which was pending in the Court.

With regard to the compromise Annexure P2, it was stated that the same had not been acted upon by the respondent and had thus lapsed.

A written statement was filed by the respondent. He emphasised the validity and binding effect of the compromise Annexure P2. On the basis of the said compromise, he claimed to be exclusive owner in possession of the land detailed above. He admitted that he had not mentioned about the civil litigation in the criminal complaint but stated that the civil litigation had no relevance for the purpose of the criminal complaint he denied having committed breach of any condition of the compromise Annexure P2. He reiterated that the petitioner had created a lease of a part of the land in dispute in favour of accused Nos. 2 and 3 without written consent of the complainant.

The contention of Ms. Kitty Kumuamangalam, learned counsel for the petitioner, is that in the absence of necessary ingredients of the offence under section 420, Indian Penal Code. No such offence was constituted and it was sheer abuse of process of Court to permit such stillborn proceedings to continue. thereby resulting in great hardship and harassment to the petitioner. ''For the essential ingredients of the offence under section 420, Indian Penal Code, the learned counsel placed reliance on Mobarik Ali Ahmed v. The State of Bombay, AIR 1957 S.C. 857 (para 3 at page 867). It was further contended that the Court could not be utilised for any oblique purpose, nor could any criminal proceedings be used as a lever to settle what is essentially a civil dispute on the complainant''s terms. In the facts and circumstances of the case, it was argued that the running of parallel proceedings amounted to abuse of the process of the Court.

The contention of Mr. A S. Tung, learned counsel for the respondent, on the other hand, is that the facts do disclose the commission of an offence and there is no legal bar in both civil and criminal proceedings running side by side. He placed reliance on Pratibha Rani v. Suraj Kumar and another, 1985(1) RCR(Crl.) 539 (SC) : AIR 1985 SC 628 , which was followed by this Court in Bhagwati Singh v. Gopal Bhushan, 1990(1) Recent C.R. 522 . He also relied on Padam Kant Sharma v. S.C. Rohtagi, 1989(2) Recent Criminal Reports 145.

I have given my anxious consideration to the respective contentions of the learned counsel.

The first question arising for consideration is whether the facts alleged in the complaint Annexure P I constitute an offence under Section on 420, Indian Penal Code ? It may be stated here that the learned counsel for the complainant made no efforts to suggest that instead of the offence under section 420, any other offence was disclosed by the facts of the case in hand. The question whether the evidence discloses only a breach of civil liability or a criminal offence under section 420, Indian Penal Code, arose in Mobarik Ali Ahmed''s case (supra). It was observed that the answer would depend upon whether the complainant in parting with his money acted on the representations of the accused and in belief of the truth thereof and whether those representations, when made, were in fact false to the knowledge of the accused and whether he had a dishonest intention from the outset. The sine qua non for an offence under section 420, Indian Penal Code, would, therefore, be deceit i.e. (i) dishonest or fraudulent misrepresentation to a person and (ii) the inducing of that person thereby to deliver property. Assuming all the facts alleged in the complaint to be true, both the above ingredients are missing. It is not the case set up in the complaint that by dishonest or fraudulent misrepresentation, the petitioner secured some admission in his favour and thereby induced the complainant to deliver any property to any person or to consent that any person shall retain any property etc, within the meaning of section 415 of the Indian Penal Code. In fact, in the compromise, Annexure P2, the petitioner purported to acknowledge that the respondent was the exclusive owner in possession of the land situate at Kapurthala and described in detail above. Another feature which deserves notice is that while the compromise is dated November 2, 1978, the lease in question was granted on September 19, 1988. There was, thus, no nexus between the compromise and the alleged breach thereof. Not that such nexus is necessary in law to constitute an offence, but ordinarily in cases of cheating fraudulent misrepresentation, on the one hand, and deprivation of property, on the other hand, bear a reasonable nexus with each other. In Padam Kant Sharma''s case (supra) relied on by the learned counsel for the respondent. reference was made to Jaswantrai Manilala Akhaney v. The State of Bombay, AIR 1956 SC 575 and the following lines extracted from the said decision of the Supreme Court :

The same set of the facts may give rise both to a civil liability and a criminal prosecution but if there is no mens rea, or if the other essential ingredients of an offence are lacking the same facts may not sustain a criminal prosecution, though, a civil action may lie."

There can be no denying the fact that the same set of facts may give rise to both civil as well as criminal proceedings but where the essential ingredients of an offence are lacking, it will not be possible to sustain a criminal proceedings.

Annexure P3 is copy of the plaint dated September 14, 1988. The suit was instituted by the respondent against the petitioner and two others. The suit is for declaration to the effect that the plaintiff is owner in possession of land which is the subjectmatter of the complaint. The plaintiff also sought a perpetual injunction, restraining the defendants from interfering in the former''s possession or from alienating the land in any manner. The suit is being contested by the petitioner. The written statement filed by him is Annexure P 4. In para of the preliminary objections in the written statement, it was stated that the plaintiff had filed an earlier suit on similar facts and the same was pending in the Court of the Subordinate Judge 1st Class, Jalandhar. It was further pleaded that Shri Atamdev Singh having committed a breach of the agreement/compromise dates November 2, 1978, the compromise had lapsed. These facts go to show that suit with regard to precisely the tame subjectmatter has been pending between the parties since September 14, 1988, taking the date of institution of the second suit at Amritsar.

There is no dispute with the proposition that both civil and criminal remedies can be pursued side by side. In the facts of the present case, the criminal proceedings cannot be continued for the simple reason that the essential ingredients of section 420, Indian Penal Code, are lacking. It will be abuse of the process of Court to permit the continuance of such proceedings. For these reasons, the petition is allowed and the complaint and the summoning order in question are quashed.