Nityananda Barkakati and Another vs Debendra Nath Choudhury

S.N. Phukan, J.—This revision petition is for quashing the criminal proceeding which was registered as complaint case No. 347C/81 and is pending before the learned Judicial Magistrate, Kamrup at Gauhati.

The complaint petition is at Annexure 1 and the initial statements of the complainant is at Annexure-2, After recieving the camplaint petition and recording initial statements of the complainant the learned Magistrate found a prima facie case u/s 420 IPC and issued bailable warrant of arrest against the present, two Petitioners. It may be stated that Petitioner No. 2 herein is the husband of Petitioner No. 1.

There is no dispute that the accused Petitioner No. 1 is a government servant. In the complaint petition, it has been alleged that both the accused persons approached the complainant in the 3rd week of October, 1990 with an intention of parchasing a plot of land situated at village Jatia under Beltola Mouza. The area of the land was 2 Kathas 11 Leehas. The proposal was accepted audit has been alleged that a written agreement was executed on 24.10.90 and the price fixed for the entire land was Rs. 3,50,000/- and the accused persons paid Rs. 10 000/. In cash on the same day and promised to pay the balance before registration of the sale deed. It was further been alleged that the said original agreement for sale was kept by the accused persons and only a copy was supplied to the complainant. According to the complainant after execution of the agreement both the accused persons became very friendly with the complainant and the members of the family and behaved as if they were also members of the family of the complainant. It has also been stated that accused persons started addressing the complainant as "Deuta" (father) and accordingly the complainant took the accused persons into confidence as he had no reason to suspect the accused persons. The complainant was informed that registration of the sale deed would be done on 24.12.90. It has been alleged that accused Petitioner No. 1 gave an account payee cheque drawn on the S.B.I., Dispur Branch for a sum of Rs. 3 lakhs and the cheque was signed by the accused No. 2 and it was a post dated one as the date in the cheque was recorded as on 27.12.90. Complainant deposited the cheque as per request of the accused persons after 27.12.90. According to the complainant be received the post dated account payee cheque for Rs. 3 lakhs as according to the accused No. 2, the amount was managed by selling her ornaments and it was also stated that the balance of Rs. 40,000/- would be paid latter. The complainant was also told that two sale deeds were prepared for the aforesaid land, one in favour of accused No. 1 for an area of land measuring 1 katha 6 lechas and other in the name of the accused Petitioner No. 2 for an area of 1 katha 5 lechas. The sale deeds were not shown to the complainant earlier and at the time of registration, complainant saw the sale deeds and found that price shown in the fast sale deed in favour of accused Petitioner No. 1 was Rs. 30,000/- and in the other sale deed Rs. 25,000/-. Complainant objected, but the accused persons explained that less amount was shown to avoid "certain difficulties of their own and to save money". According to the complainant he being an innocent person put his signature on both the sale deeds as directed by the accused persons and he had no chance to complain. On 28.12.90 the cheque of Rs. 3 lakh was deposited for collection, but it was received back with an endorsement by the bank that the payment was stayed by the drawer. It has also been alleged in the complaint petition that thereafter, he visited the house of the accused persons who assured that a new cheque will be issued and it will be honoured. Thereafter, the complainant, his son and son-in-law again visited the house of the accused persons on several occasions and on last date the accused persons started misbehaving and even closed the door and as such the complainant was convinced that the accused persons have cheated him. A statement has also been made in the complaint petition that the accused person promised that the amount will be paid in the 3rd week of February. But when the complainant met the accused persons in the said week, they threatened the complainant. According to the complainant the accused persons dishonestly induced the complainant to believe them in executing the sale without recovering the entire amount, thereby deceiving the complainant. In his initial statement the complainant has reiterated whatever has been stated in the complaint petition.

In the petition before this Court, the accused Petitioners have inter alia denied the alleged agreement for sale. It has also been stated that the Respondent complainant is a litigant and there are several cases pending in the court. It has also been alleged that the present petition has been filed only to harass the Petitioners and lower the reputation of the Petitioner No. 1 who is a high govt. official. The allegation of the execution of the agreement for sale as stated in the complaint petition has been denied hand it has been stated that there was a verbal discussions between the parties for purchase of the entire land at Rs. 55,000/- and in accordance with the said verbal agreement two sale deeds were accepted and registered before the Sub-Registrar, Guwahati on 24.12.90 and possession of the land was also delivered. According to the accused Petitioners on 27.12.90 complainant-Respondent verbally agreed to sell another plot of land measuring 2 bighas and accordingly in good faith, an account payee cheque for Rs. 3 lakhs handed over to the Respondent as advance. But when the accused Petitioners went to the spot to take physical possession of the aforesaid two bighas of land many people gathered into the land in question and started threatening them stating that they were in actual physical possession of the land and it could not be sold. Seeing the hostile move of the people, accused persons fled away and they decided not to purchase the land and accordingly instructed the bank not to make any payment in respect of the cheque for Rs. 3 lakhs issued in favour of the complainant.

Heard Mr. A.K. Bhattacharjee, learned Counsel for the Petitioners and Mr. G.K. Bhattacharjee, learned Counsel for the Respondent. It may be stated that the statement made in the present revision petition has not been denied by filing any counter on behalf of the Respondent.

Since this is a petition for quashing a criminal proceeding, there cannot be any legal dispute that this can be so done by exercising power u/s 442 Code of Criminal Procedure provided the settled legal position is proved. In examining a case for this purpose, this Court has only to consider the complaint petition, initial statements of the complainant and papers enclosing with the said complaint petition and nothing can be added or subtracted. The court cannot enter into a detailed discussion on merits or demerits of the case See Madhu Limaye Vs. The State of Maharashtra, and Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others,

The Apex Court laid down the following four principles for quashing a criminal proceeding J.P. Sharma Vs. Vinod Kumar Jain and Others, These are a follows-

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person (sic) ever reach conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like see R.P. Kapur Vs. The State of Punjab, and Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others,

In the present complaint petition processes were issued as stated above u/s 420 IPC, Section 415 defines ''cheating''. The ingredients under this section are:

(1) Deception of any person.

(2) (a) Fraudulently or dishonestly inducing that person

(i) to deliver any property to any person or

(ii) to consent that any person shall retain any property, or

(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not no deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

Considering the allegations made in the complaint petition and the statements of the complainant in the case in hand, this Court has to find out whether the essential ingredients of deception of the complainant and fraudulent or dishonestly inducing the complainant to deliver the land by execution of the sale deeds have been made out or not.

Mr. A.K. Bhattacharyya, learned Counsel for the Petitioners has urged that taking the allegations made in the complaint petition and the initial statements of the complainant, the ingredients of Section 415 IPC i.e. cheating have not been made out. The said ingredients have already stated. Mr. Bhattacharyya has also drawn attention of this Court to Sections 23, 24 and 25 IPC i.e. wrongful gain, wrongful loss, dishonestly and fraudulently. According to the learned Counsel as two sale deeds were duly executed the question of deception of the complainant or inducing him fraudulently and dishonestly to deliver the land cannot and does not arise. Learned Counsel has drawn attention to Sections 34 and 35 of the Indian Registration Act and also Sections 54 and 55 of the T.P. Act to bring home the point that as the sale deeds were duly executed by the complainant, the question of cheating cannot arise. Incidently, it has also been urged by the learned Counsel that the sale deeds were executed on 24.12.90 and the complaint petition was filed in the month of March, 199l and on 14th March this case was received by the learned Magistrate. The above facts have been relied upon to show delay in filing the complaint which according to the learned Counsel is also the ground to be taken into consideration Learned Counsel has ''fairly'' stated that in quashing the present proceeding at this stage, the question of delay need not be considered but it has to be taken into consideration in the over all context. According to the learned Counsel, this is purely a civil dispute and as such no criminal proceeding is maintainable. In this connection, reliance has been placed in Bal Kishan Das v. P.C. Nayar 1991 Supp (2) S.C.C. 415. In this case their Lordships took into consideration that the subject matter was purely of civil nature and accordingly quashed the criminal proceeding.

Mr. G.K. Bhattacharyya, learned Counsel for the opp. party has fairly stated that there cannot be any dispute that a matter which is purely civil nature, no criminal proceeding is maintainable. According to the learned Counsel in this case, the complainant opp. party has not claimed the amount alleged to have been paid by the accused persons as price of the land. In fact according to the learned Counsel as two sale deeds were duly executed, the complainant opp. may party not be able to recover the amount. I do not want to express any opinion on this point as the matter may ultimately go to civil court. According to the learned Counsel the complaint petition and the initial statements of the complainant clearly disclose a case of cheating.

After hearing the learned Counsel for both the parties and on perusal of the records, I am of the opinion that no prima facie case of cheating has been made out. Accused Petitioners have stated in the present petition, the circumstances under which the cheque for Rs. 3 lakhs was issued and the fact of stopping the payment. This has not been rebutted by the opp. party. Of course this factor need not be taken into consideration in disposing of the present matter.

From the complaint petition, I find that in paragraph 10 of the said petition, it has been stated that the accused persons dishonestly induced the complainant to believe them in executing the sale deeds without recovering the entire amount and thereby deceiving the complainant. The complainant is not an illiterate person. He has duly executed the sale deeds and delivered possession and as such the question of cheating cannot arise. Once a sale deed is executed and registered, the buyer gets a valid title and subsequently the seller cannot turn round and say, in view of the provisions of the Registration Act and T.P. Act that the sale deed was obtained by cheating. Stopping payment of the cheque of Rs. 3 lakhs cannot be said to be a dishonest intention of cheating in the case in hand considering the allegations made in complaint petition.

I, therefore, hold that the learned Magistrate erred in law by issuing processes against the accused persons after taking cognizance on the basis of allegations made in the complaint petition and the initial statements of the complainant u/s 420 IPC.

For the reasons stated above, the criminal proceeding which was registered as complaint case No. 374/91 and pending before the learned Judicial Magistrate, Guwahati is hereby quashed and the petition is disposal of accordingly.