Khalid Nadim Khan vs State Of Jharkhand And Ors

The lawyers have no objection with regard to the proceeding, which has been held through video conference today at 11.00 A.M. They have no

complaint in respect to the audio and video clarity and quality.

By filing this application, petitioner has prayed to quash the entire criminal proceeding arising out of Bokaro, Sector-4 P.S. Case No. 123 of 2016,

corresponding to G.R. No. 1069 of 2016 registered under Section 406, 420 IPC.

Counsel for the petitioner submits that the entire dispute is civil in nature which would be apparent from perusal of the FIR itself. He submits that

admittedly the sale deed has been registered and even mutation has been done. It is alleged that after mutation process was over, the informant raised

dispute that possession has not been given to him. As the possession was not given, this criminal case was lodged. It has been stated that even

admitting what has been mentioned in the FIR, this case should not come within the purview of the criminal proceeding as the entire allegation is civil

in nature and no offence under Sections 415 and 405 IPC is made out to attract offence under Section 420 and 406 IPC. He further submits that

petitioner is not the owner of the said land.

Counsel appearing on behalf of the State assisted by counsel for the opposite party no.2 submits that petitioner is a middleman and infact he is the

person who has received the entire money. He submits that the possession of the land has not yet been given to the informant which led to filing of

this case. He submits that since possession has not been given, the informant has been cheated. Further opposite party no.2 submits that the case has

already proceeded and the evidence of three witnesses have been recorded and thus at this stage, the FIR cannot be quashed.

I have heard the parties, and have gone through the entire documents. In the FIR it has been mentioned that informant wanted to purchase some

land as a result of which it was decided by the parties to sale the land of Mouza Tetuliya Khata No. 42, Plot No. 472 having an area of 5.5. decimals

out of two acres of the land which was already there. The price fixed was Rs. 8, 50,000/-. The total amount was given to the land owner by six

cheques from 15.5.2012 to 28.2.2013. In the FIR it has been admitted that land was registered in the name of informant. Further it has also been

mentioned that mutation has also been done in respect of the land in question in favour of the informant. Thereafter it has been mentioned that

possession of the land was not given. The informant pressurized the petitioner to give possession of the land. Petitioner agreed to return the money or

the land but neither the amount was returned nor possession was given, thus informant felt cheated and had lodged this case which was registered as

Bokaro Sector- 4 P.S. Case No. 123 of 2016 under Sections 406, 420 IPC.

One of the ground the opposite party no.2 has taken while opposing the prayer is that the case has proceeded and charge has already been framed

and three witnesses have also been examined in this case. As per him since the trial has proceeded, the proceeding cannot be quashed. This issue is

not res-integra. The Hon'ble Supreme Court of India in the case ofA nand Kumar Mahatta Vrs. State (NCT of Delhi) reported in (2019) 11 SCC 706

has held that inherent power of the High Court to quash the proceeding can be exercised even after the charge- sheet is filed. Paragraph No. 16 of

the said judgment needs to be quoted as under:-

There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or

miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC

even when the discharge application is pending with the trial court5. Indeed, it would be a travesty to hold that proceedings initiated against a person

can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could

be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is

undoubtedly conferred to prevent abuse of process of power of any court.

From the aforesaid judgment now it is well settled that at any stage, to prevent the abuse of the process of law, FIR can be quashed by exercising

jurisdiction under Section 482 Cr.P.C. From the aforesaid paragraph it is also clear that filing of the charge-sheet cannot be a ground to refuse

quashing the FIR if no criminal offence is made out. Thus from the judgment of the Hon'ble Apex Court, this Court feels that there is no bar in

quashing the FIR even if charge-sheet has been filed and the case is proceeded and three witnesses have been examined.

On the merit of this case, I find that in the FIR the informant has admitted that after taking money, the sale deed has been executed and registered

and the land has been mutated in the name of informant. Mutation clearly suggests that possession is with the purchaser. If the possession was not

with the purchaser (informant in this case), the land would not have been mutated in the name of the informant by the State. Even for the sake of

argument, if it is taken that possession has not been given then also there is no application of Sections 405 and 415 IPC as admittedly after payment of

money, sale deed has been executed and registered and the land has been mutated.

Section 405 IPC defines ""Criminal Breach of Trust"". As per the said definition there has to be entrustment of property and dishonest

misappropriation or conversion of the said by the accused. In this case, I find that no ingredients which attracts the aforesaid section. So far as Section

415 IPC is concerned which defines cheating, I find that basic ingredients of the penal section is also not attracted from the aforesaid submission

made in the written report.

The Hon'ble Supreme Court in the case of Indian Oil Corporation Vrs. NEPC India Ltd. & Ors. reported in (2006) 6 SCC 73 h6as held that any

effort to settle dispute and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated

and discouraged. The court also noticed the growing trend in the business circles to convert purely civil dispute into criminal cases.

The Hon'ble Supreme Court in the case of State of State of Haryana and Ors. Vrs. Bhajan Lal & others report in 1992 Suppl. (1) SCC 33 5has

laid down some conditions for quashing the FIR. Seven conditions have been laid down in paragraph no.102 of the said judgment. It is necessary to

quote paragraph no. 102 here:-

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by

this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the

Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be

exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases

wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

This Court feels on the facts of the case which has been narrated herein above, this present case falls under the First and Fifth categories set out

in paragraph no. 102 of the judgment of Supreme Court in the case of State of Haryana and Ors. (Supra).

Thus, it is held that the entire dispute is civil in nature without having any criminal angle. The prosecution is malafide, untenable and solely intended

to harass the petitioners. The continuance of this proceeding would be nothing but an abuse of the process of Court.

Considering the facts of this case and what has been held above and in view of the judgments referred to above, I hereby quashed the FIR and the

entire criminal proceeding of Bokaro Sector- 4 P.S. Case No. 123 of 2016, corresponding to G.R. No. 1069 of 2016. All subsequent proceedings are

also hereby quashed.

Accordingly, this application stands allowed.