R.N. Mishra vs State of MP & Others

The inherent powers of this Court u/s.482 Cr.P.C. are invoked for quashment of the criminal prosecution triggered by FIR dated 21.02.2016 bearing Crime No.70/2016 registered at Police Station Thatipur, District Gwalior alleging offence punishable u/Ss. 420, 467, 468, 120B IPC.

Learned counsel for the rival parties are heard.

Brief facts giving rise to the present case are that complainant Sunil Rajauriya made written complaint to police primarily alleging that he had purchased the property in question from one Smt. Shakuntala Shrivastava W/o Ambika Shrivastava vide sale deed executed on 20.08.2010 followed by entering of the name of complainant as owner of the said property in the records maintained by Municipal Corporation, Electricity Department and M.P. Housing Board and since then complainant owns and possesses the said property.

3.1 It was further alleged that since prior to the above said sale in favour of the complainant the property in question was occupied by one Shri Vijay Mathur ( father of the petitioner herein) as tenant of Rs. 2,000/- per month. It is further alleged that factum of sale of property in favour of complainant was made known to the said tenant. Further it is alleged by the complainant that late Ambika had been allotted the said property under the 1976 Scheme of the M.P. Housing Board by deed dated 27.09.1997 in which Smt. Shakuntala was shown as nominee of her husband. Thereafter it is alleged by the complainant that said Vijay Mathur despite having knowledge of the fact that late Ambika during his life time did not alienated the said property, prepared a forged document and got his name mutated as owner of the said property in connivance with the employees of M.P. Housing Board.

3.2 It is further alleged that this mutation is based on forgery which was committed on 30.01.1999 which fact was suppressed from the complainant as the said Vijay Mathur continued to act as tenant of the complainant by regularly paying rent to the complainant. It is also alleged that said Vijay Kumar further got issued the NOC in his name on 06.05.2000 qua the said property. The complainant further alleges that when application was made before the Housing Board for mutating the name of complainant as owner of the house, the knowledge of said forgery committed by Vijay Mathur came to light. The complainant further alleges that he made written complaint to the Housing Board which led to conduction of inquiry and disciplinary action against certain employees of the Housing Board.

3.3. In the above factual background, the FIR alleging cheating was lodged by complainant Sunil Rajauriya alleging offence against the petitioner, who is Rohit Mathur S/o Vijay Mathur.

3.4. Learned counsel for the petitioner has submitted that entire allegation contained in the FIR and other material collected by the prosecution alleges offence against Vijay Mathur and not against the petitioner Rohit Mathur. In support of challenge to the FIR and consequential proceedings, it is alleged by the petitioner that entire issue relates to civil dispute with no criminal colour attached to it. It is submitted that a civil suit was filed by Vijay Mathur, father of the petitioner, in respect of the same property which was decreed in favour of Vijay Mathur directing the Housing Board and LRs of Shakuntala and Sunil Rajauria to execute the sale deed in favour of Vijay Mathur. Aggrieved, the LRs of Shakuntala and Sunil Rajauriya filed FA No. 66/2014 which is pending adjudication before this Court where interim order of status quo continues to subsist. It is further submitted by learned counsel for the parties that another civil suit for eviction under Section 12(1)(A)(E) and M.P. Accommodation Control Act by Sunil Rajauriya was decreed in his favour against which civil appeal was unsuccessfully filed by the Vijay Mathur, father of the petitioner. Thereafter second appeal has been filed which is pending adjudication till date.

3.5 It is further submitted by counsel for the petitioner that all the transactions of sale and mutation in respect of land in question took place till August, 2015 till when the father of the petitioner, Vijay Mathur, was very much alive. In August, 2015 Vijay Mathur expired.

3.6 Learned counsel for the petitioner has placed reliance on the following judgments :-

(i) (Inder Mohan Goswami And Anr Vs. State of Uttranchal and Ors.) reported in (2008) 1 SCC (Cri.) 259 the relevant paragraph 46 is reproduced below :-

"46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained."

(ii) (Mahindra & Mahindra Financial Services Ltd. and Anr Vs. Rajiv Dubey) reported in (2009) 1 SCC (Cri.) 603, the relevant paragraph 18 is reproduced below :-

"18. It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law."

(iii) (Kishan Singh (Dead) Thr. Lrs. Vs. Gurpal Singh and Ors.) reported in (2010) 3 Supreme Court Cases (Cri.) 1091, the relevant paragraph 22 is reproduced below :-

"22. In cases where there is a delay in lodging an FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., 1992 Supp (1) SCC 335; G. Sagar Suri & Anr. Vs. State of U.P. , (2000) 2 SCC 636 ; and Gorige Pentaiah Vs. State of A.P., (2008) 12 SCC 531)."

(iv) (Keki Hormusji Gharda and Ors. Vs. Mehervan Rustom Irani & Anr.) reported in (2009) 2 SCC (Cri.) 1113 the relevant paragraphs 18, 19 and 20 are reproduced below :-

"18. In Pepsi Foods Ltd. Vs. Special Judicial Magistrate (1998) 5 SCC 749 this Court held as under: (SCC p.760, para 28)

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the Complaint Petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the Court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of the Code of Criminal Procedure.

Indisputably, there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. The High Court furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed."

Per Contra, learned counsel for the respondent submits that initially complaint was made on 15.12.2015 by the complainant which did not invoke any response from the police and therefore Superintendent of Police was approached which led to lodging of FIR in question. 4.1 It is submitted that Annexure A/4 which is a joint affidavit is a forged document as the signature of Late Ambika is fake. It is further submitted that the Housing Board has conducted inqiury and found its employees to be guilty for having connived with Vijay Mathur. The decision of this Court ILR [2014] M.P. 1123 (Daulat Singh Vishwakarma and Ors. Vs. State of M.P.) is pressed into service. The relevant para 8 of said judgment is reproduced below :-

"8. It is undisputed fact from the FIR and other papers available on the record that respondent No.2/ complainant entered into an agreement with the Board on 17.7.1985 to purchase MIG type house under the scheme of higher purchase, which were being constructed at 41, Tilinaka Sagar and according to the terms and conditions of such agreement the respondent No.2 had deposited it''s regular installments up to 4.6.2002 and after making such entire payment by respondent No.2 the Housing Board and its official had to execute a sale deed of the aforesaid house in favour of the respondent No.2 and unless such sale deed is executed in favour of the respondent No.2 mere on the basis of aforesaid affidavit of some proceeding of the Civil Court no NOC could have been issued by the applicants or any other official of the Housing Board in favour of other persons except the allottee respondent No.2. For the sake of argument if it is taken into consideration that any agreement if was executed by the respondent No.2 in favour of the co-accused Devendra Singh Thakur under the mediator-ship of Arvind Singh Thakur, who is brother in law of such Devendra Singh, even then to defeat the interest of the State Government with respect of the revenue without executing the sale deed in favour of the respondent No.2 the applicants did not have any authority to issue NOC to transfer the property in favour of Devendra Singh Thakur directly by the M. P. Housing Board because the consideration was never deposited with the Housing Board by the accused Devendra Singh. The investigating agency also collected the evidence which prima-facie show that the agreement which had taken place between respondent No.2 and said Devendra Singh has been cancelled by respondent No.2 and the amount of earnest money/ the part consideration was also returned to the above mentioned prospective purchaser. So there was no circumstance in existence to issue any NOC to transfer the aforesaid property to Devendra Singh Thakur directly from the Housing Board. But mere to defeat the interest and title of the respondent No.2 without his consent, so also with intention to cause the wrongful loss to the Government revenue, which could have been received by the State on execution of one sale deed in favour of the respondent No.2 and thereafter in favour of the purchaser Devendra Singh Thakur (if the agreement had not been cancelled), the applicants by misusing their power and authority with dishonest intention had forged and fabricated the NOC contrary to the rules and regulations just to extend the benefit to Devendra Singh Thakur the co- accused and thereby prima-faice they have committed the alleged offence for which the charges have been framed by the trial Court."

It is pertinent to observe that in the entire prosecution story and the FIR, the allegation is primarily against Vijay Mathur, who has since expired in August , 2015. The petitioner Rohit Mathur has been named on certain places along with the name of Vijay Mathur by alleging that Rohit was working in connivance with Vijay Mathur with no specific allegation or instances in regard to involvement of the petitioner in the offence of cheating.

The definition of cheating under Section 415 IPC is reproduced below for convinence and ready reference :-

"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 if 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".

Explanation- A dishonest concealment of facts is a deception within the meaning of this section."

From the above, it is evident that even on prima facie basis the offence of cheating gets constituted when there is inducement by the accused to the victim to do an unlawful thing compelling any person to deliver any property which is likely to cause damage or harm to that person in body, mind, reputation or property. Thus the concept of cheating comes into being when two basic ingredients of inducement followed by delivery of property by the person deceived co-exist.

In the instant case, the FIR and the supporting documents do not reflect any overt act on the part of the petitioner to indulge in inducement. The term "induce" is defined in the Merriam-Webster''s Collegiate Dictionary as follows :-

"a: to move by persuasion or influence

b : to call forth or bring about by influence or stimulation ".

From the above, it is evident that the allegation should contain some overt act of persuasion or influence caused by the petitioner to the complainant.

The allegation contained in the FIR are silent in that respect. This Court will be failing in its duty without referring to the explanation provided in Section 415 IPC which includes dishonest concealment within the parameters of deception. In this respect it is seen that dishonest concealment of fact amounts to deception which may induce person induced to deliver any property causing him harm in body, mind, reputation or property.

In the present case the allegation of concealment and connivance in mutating the name in the records of the property in question is against Vijay Mathur and not against petitioner. The petitioner has merely bean named along with Vijay Mathur by making bald and vague allegation that he too knew about the concealment and inducement exercised by Vijay Mathur with no allegation of how and in what manner and when any act was committed by petitioner which may construe to be inducement or concealment.

This Court is afraid that this kind of vague and unspecific allegation in FIR are not good enough to trigger a proceeding as serious as investigation.

The Apex Court in the case of (Hridaya Ranjan P.D. Verma Vs. State of Bihar) reported in AIR 2000 SC 2341 succinctly described the basic ingredients necessary for constitution of offence of cheating.

Crime investigation is a pious duty of the police authorities to probe in the dark by travelling from unknown to known to reach the truth and unravel the mystery by collecting cogent evidence which is good enough to atleast prima facie reflect existence of basic ingredients of any offence alleged, failing which no investigation as contemplated by Chapter- XII of Cr.P.C can commence by setting the law into motion to the peril of the accused.

It seems that the police authorities have registered the FIR in casual and perfunctory manner without ensuring prima facie existence of basic ingredients of offence of cheating against the petitioner. The verdict of Apex Court in ( State of Harayana & Ors. V. Bhajan Lal and Ors.) reported in 1992 Supp (1) SCC 335. para 102 (1) comes to rescue the petitioner. For convenience and ready reference the relevant extract is reproduced below :-

"102. 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 F.I.R. 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."

Considering the law laid down by the Apex Court in the case of Bhajan Lal (supra) the case of the petitioner squarely falls within the clause 1 of para 102 of the said judgment. The allegations contained in the prosecution story do not disclose constitution of offence even on prima facie basis against the petitioner. Mere vague and unspecific allegations by alleging that petitioner was also involved in the offence alleged against the father would not be sufficient to constitute the offence of cheating. The basic ingredients necessary for constitution of offence of cheating are missing in the present matter.

In view of the above, the instant petition filed under Section 482 Cr.P.C deserves to be allowed and FIR dated 21.02.2016 bearing Crime No.70/2016 420 registered at police station Thatipur, District Gwalior and consequential proceedings qua the petitioner which are presently pending in trial, are quashed.