Sri Satya Narayan Kejriwal @APPELLANT@Hash Sri Gajraj Surana

(1) Heard Mr SS Sarma, learned senior counsel for petitioners in criminal petition 510/2016 and Mr P C Das, learned counsel for the petitioner in

criminal petition 857/2016 and Mr O. P. Bhati, learned counsel for respondents in both petitions.

(2) As facts of both petitions are similar and challenged the same impugned order of framing charge, they were taken up together for hearing and

disposed by way of the common judgment.

(3) Petitioner Sri Satya Narayan Kejriwal and Sri Ram Gopal Kejriwal are two brothers as also the respondent Sri Gajraj Surana and Sri Sunil Surana

are two brothers.

(4) Sri Satya Narayan Kejriwal has several immovable properties at Guwahati which were rented to different persons. As he mostly stays at Mumbai

for his business affairs, he gave a power of attorney to his brother Sri Ram Gopal Kejriwal who resides at Guwahati to look after his properties, one of

which is the Kejriwal Bhavan at Paltanbazar and on the ground floor of it has a 500-sqft shop room which was rented to Sri Gajran Surana on

01.08.2001.

(5) According to petitioners, respondents sometime in the year 2005 requested the petitioners to divide the shop room between their two brothers in

equal proportion by creating separate tenancies to carry out their respective businesses independently in view of their family settlement.

(6) Petitioners agreed to the proposal on condition that respondent no.1 will continue to pay rent at the existing rate for the half portion of the shop and

a fresh agreement will be entered into between petitioner and no.1 to which respondent no. 1. In this way, the respondent no.1 remained as tenant for

half portion of the shop and the other portion was rented to respondent no.2 at a monthly rent of Rs 6,500 by entering into an agreement dated

1.12.2006.

(7) In this way the respondents continued their tenanted shop and the petitioner no.1 and respondent no.2 by created a new tenancy agreement

between them on 1.12.2006. But after six years of tenancy, the previous tenant, respondent no.1, lodged a complaint with the CJM, Kamrup(M)

against his brother/the respondent no.2, and the petitioners alleging that his brother is an unauthorised occupant and denied any amicable partition with

his brother and claimed that his brother was simply a permissive occupier of the half portion of the tenanted premises for two years.

(8) Prior to that the respondent no.1 filed a title suit TS 2/2007 before the learned Munsiff III, Kamrup(M) for ejectment of respondent no.2 from the

tenanted premises which, according to him, was given to respondent no.2 only for two years (w.e.f 2.10.2004) to use it as permissive occupier and

there was no such family partition and said suit was dismissed on contest and appeal against said also failed.

(9) Thereafter the present complaint petition has been filed in 2012 by respondent No. 1 which was registered CR case no. 1089c/2012, with

allegation that that the tenancy agreement dated 1.12.2006 was executed by the petitioners and respondent no.2 despite having been in existence of

earlier tenancy agreement with him and thus termed the said agreement collusive and fraudulent, claiming that he used to pay the full rent of the

500sqft shop premises on the strength of this earlier existing agreement dated 01.8.2001 and petitioners used to receive the same and so he never

relinquished his right over the shop or for that matter any portion thereof in favour of petitioners and therefore the agreement executed by respondent

no.2 with the petitioners on 1.12.2006 secretly and collusively has caused wrongful loss to him.

(10) Based on the complaint the learned trial court took cognizance of the offence against all accused petitioners and issued summons to them and

subsequently framed charge u/s 120 (B)/418 IPC.

(11) It may be mentioned her on earlier occasion the petitioners came up with a petition for quash proceeding of the aforesaid case CR Case No.

1089/12 when the Trial Court took cognizance of the offence u/s 418/420/463/120 (B) IPC. This Court dismissed the petition by holding that dividing

of shop premises and running of business by both the brothers are all disputed question of facts and the complain petition which reveals a prima facie

case cannot be quashed. Now the present quashing petition has been preferred after framing of charge u/s 120 (B)/418 CrPC against the present

petitioners. The contention that has been raised by the petitioners is that the present criminal case has been filed by the respondent only after

unsuccessful attempt on his part to evict his brother Sunil Surana from the said premises.

(12) The learned counsel for the petitioner/Sunil Surana contended that there was no agreement to run the business for two years and there was no

notice to vacate and he occupied the part of the suit premises only after the family partition which has been stated by his mother in the civil suit. A

fragile attempt has been made by the respondent/complaint who is the brother of the petitioner to ousted him to the said premises by filing the civil suit

without impleading the land owner and the said title suit was dismissed in the year 2012 and present complaint was filed in the year 2014 despite

knowing all about the stand by the accused petitioner. In the civil suit no any witness was examined by the respondent except himself but in the

complaint case he has examined some witnesses who simply stated about the factum of occupation of the suit premises by the petitioner, and they

have no knowledge about the execution of rent agreement on the part of petitioner with the landlord. It is stated that the other accused petitioner i.e.

the landlord has also admitted about the rent collected by them in pursuance of such agreement with the present accused petitioner Sunil Surana.

(13) Further contention that has been raised by the learned counsel for the petitioner that the case is barred by limitation u/s 468 CrPC as the case

was filed in the year 2012 beyond the period of three years, after knowing the factum of execution of rent agreement between the parties in the year

2008, which was disclosed in the WS. Moreover, the respondent/complainant has not challenged the rent agreement executed between the petitioner

and the landlord in the year 1.12.2006. Reliance has been placed on the decision (2015) 1 SCC 513 Rajiv Ranjan and Ors. Vs. R Vijay Kumar

wherein it has been held that filling of criminal complaint by the party after loosing of battle in civil litigation amounted to misuse and abuse of process

of law and the complaint liable to be quashed.

(14) Reference has also been made to the decision of (2014) 2 GLT 458 Moynual Hoque and another Vs. State of Assam wherein it has been held

that at the stage of framing charge it is to be seen as to whether there is a strong suspicion that the accused had committed an offence, if put to trial

could prove him guilty. The final test of guilt is not to be applied at that stage. However, where the Court finds that the basic ingredients of the offence

not satisfied or that there is any specific legal bar, the Court may quash the charge.

(15) Observation of the Hon’ble Apex Court (2010) 9 SCC 368 Sajan Kumar Vs. CBI is also relied where it is said that a Magistrate enquiry into

a case u/s 209 is not to mere post office and has to come to a proper conclusion he is entitled to shift and weigh the materials on record whether there

is sufficient evidence for conviction if there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to

discharge the accused. At the time of framing charge, the probative value of material on record cannot be gone into but before framing charge the

court must apply its judicial mind on the material placed on record and must be satisfied about the commission of offence by the accused.

(16) Apart from the above, learned counsel for the petitioner has referred the witnesses that has been examined by the respondent/claimant prior to

framing of charge.

(17) The learned counsel for the petitioner Satyanaryan Kejriwal and other has vehemently submitted that as the complainant himself has sub-

let/partition the premises to his brother without the permission of the owner/ landlord for which the owner is not liable and as soon as the petitioners

being landlord came to know about the partition between the two brothers and on approach by the other brother/Sunil Surana fresh rent agreement

was executed with him on 1.12.2006 and both the brothers i.e. the Sunil and Gajraj are paying rent regularly in terms of their respective agreement.

Although, no fresh agreement was entered into with the respondent/claimant but he used to pay the rent on the basis of earlier rent agreement.

Accordingly it has been contended that no criminal intent can be attributed to the present petitioners and as it is their own property and occupied by

the respondent/complainant as tenant, the landlord has every right to enter into fresh agreement with the every tenant. Thus it has been contended that

no ingredient of the offence u/s 418 IPC is attracted in the present case and it is not a case of cheating as contemplated u/s 415 IPC. The

respondent/complaint all along continued to pay the rent as earlier but he never agitated to landlord to accept the half of the rent of the premises.

Making of agreement with the tenant is cannot be a criminal act on the part of the landlord and there is no such fiduciary relation or whatsoever

between the tenant and the landlord to protect by interest of the tenant so as to attract the offence u/s 418 IPC.

(18) Countering the allegation, the learned counsel for the opposite parties Mr. O. P. Bhati, argued before this Court that the respondent/claimant has

no knowledge about the execution of rent agreement between the landlord and his brother Sunil Surana and the accused petitioner Sunil Surana has

stealthily has entered into the rent agreement with the landlord by occupying the suit premises in a deceitful manner and for his conduct the

respondent/complaint has suffered huge financial loss in the business and he is deprived of whole premises which was taken on rent. It has also been

contended that on earlier occasion this Court has refuse to quash the proceeding, the same cannot be allowed subsequently. It has been contended

that complainant has been able to establish a prima facie case for proceeding u/s 418 IPC and relying on decision of Hon’ble Court in Criminal

Appeal No. 1407/2012 Amit Kappor Vs. Ramesh Chandar it has been contended that as there is a prima facie case to establish the charge, the power

of quashing the criminal proceeding should not be exercised by invoking the inherent power. It has been submitted that such a power should be

exercised sparingly and with circumspection and that too in the rarest of rare cases.

(19) Regarding the criminal intention on the part of the landlord/petitioner it has been contended that during the subsistence of earlier tenancy

agreement with the petitioner, all the accused petitioners have conspired to cheat the complainant and deprived him of the premises of 500 sq mt.

Although he has occupied 250 sq mt. of the premises but rent has been collected for whole premises (500 sq mt.). Relying on the decision (2000) 3

SCC 269 Medchi Chemicals Tharma (P) Ltd. Vs. Biological E. Ltd. and Ors, it has been contended that only because there is a civil profile, criminal

outfit of an offence cannot be out weight. It has been stated that factual matrix would be relevant in the matter of assessment of the situation as to

whether civil profile will out weight the criminal outfit of an offence.

(20) So far as the factual matrix in this case is that the relation between the accused and the complainant is landlord tenant relation. The complainant

entered into the rent agreement with the accused Satyanaryan in the year 2001 for one shop room measuring 500 sq.ft., which was subsequently

divided between the complainant and his brother into equal two parts and the accused landlord entered into different agreement with the other brother

of the complainant Sunil Surana for payment of rent for half portion of the suit premises in the year 2006. In this context, version of both the parties is

different. According to the complainant/respondent, the accused/landlord cannot enter into the rent agreement with his brother for half portion of the

room, during the existence of the tenancy agreement with him for the entire room and rent also paid by him for the hole room. Whereas, according to

the accused/landlord due to the amicable partition of the family assets between the parties, both the brothers have also equally divided the tenanted

room in between them and on their approach the landlord also allowed them to continue as proposed and complainant continued to pay the earlier rent

@ Rs. 5,000/- per month and the other brother entered into the new agreement with the landlord undertaking to pay a rent of Rs. 6,500/- per month

for the half of the shop premises. But according to the complainant there was no such family partition between them and he simply allowed his brother

to occupy the half of the premises for 2 years but subsequently his brother refused to vacate the premises as agreed upon for which he filed the civil

case for eviction of his brother. In the whole scenario, it cannot be loose sight the accused persons being the landlord, is in the capacity of entering into

rent agreement with his tenant and the status of the complainant was only a tenant and he cannot acquire any better title on the property. The civil suit

filed by him for eviction of his brother also failed for the reason. The relation between landlord and tenant is not that of trust or other fiduciary one,

rather it is a contractual obligation arising out of the rent agreement entered into.

(21). The offence u/s 418 IPC is read as follows:

S. 418- whoever cheats with knowledge that is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the

cheating relates, he was bound, either by law or by legal contact to protect shall be punished with imprisonment either for a turn which may extent to 3

years or with fine or with both. This section applies to the cases of cheating by guardians, trustees, solicitor, agents, the manager of Hindu family,

directors or managers of a bank in fraud of shareholders. It is the abuse of trust that is met with punishment.

(22) In Medchal Chemicals and Farma (P) Ltd. Biological E Ltd. and others AIR (2000) SC 1869 it has been observed that in order to attract to the

provision of the section 418 and 420 IPC, the guilty intent at the time of making promise is a requirement as an essential ingredient thereto and

subsequent failure to fulfill the promise by itself would not amount to provision of S.418 or S. 420. Mensrea is one of the essential ingredients of the

offence. As a matter of fact, the illustration (G) to the S. 415 makes the position clear enough to indicate that mere failure to deliver in breach of an

agreement would not amount to cheating but is liable only to civil action for breach of contract.

(23) If we turn to the evidence led by the complainant in the said complaint case, it appears that the complainant asserted the aspect about his tenancy

agreement with the accused Sri Satyanrayan Agarwala and that he is continuing the rent for the tenanted premises of 500 sq. ft. which increase 20%

per year as per agreement. On the request of his brother Sri Sunil Kumar Surana he parted the half of the tenanted premises to his brother for two

years but after expiry of the period he did not vacate the premises and subsequently he entered into new rent agreement with the owner thereby he

has cheated him to hamper his business. His other three witnesses (examined prior to charge) has simply stated about the tenancy agreement between

the complainant and Satyanaryan Agarwal and the fact that the brother of the complainant Sunil Kumar Surana was allowed by the complainant to

occupy half of the portion for 2 (two) years only, but after two years the said premises was not returned to the complainant, which they heard from

the complainant.

(24) None of the witnesses has stated as to what wrongful loss resulted to the complainant and how the complainant was cheated. The conduct of the

complainant itself not proper why he divided the premises and given one portion to his brother, without any intimation/permission of the landlord/

accused. Even after all the incidents, the complainant continued to pay the rent as per earlier agreement and never challenged the rent agreement

entered with his brother by the landlord/accused, nor he preferred any claim for damage etc. He did not make the landlord as a party to civil suit, he

filed. The evidence of the complainant is not establishing the ingredient of the offence u/s 418 IPC. The condition precedent to attract the offence u/s

418 IPC required to prove the basic ingredients of the cheating u/s 415 IPC, which is also lacking in this case. The Section 415 IPC read as follows:

S. 415 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 “cheatâ€​.

(25) From the entire episode of the case it reveals a civil profile than a criminal outfit. On the earlier occasion the petitioners came up with a petition

for quashing at the initial stage of taking cognizance while this Court refused to interfere into the matter but by this time the trial Court has framed the

issues on the basis of the evidence adduced by the complainant as indicated above and the entire picture along with the documents has also been

brought on record, hence this Court is in a position to go through the entire matters on record. There is no bar to challenge the proceeding even in the

subsequent stage. Even there is the disputed fact about the partition of room/suit premises between the complainant and his brother but thing remains,

that the landlord/accused is always in a position to enter into rent agreement with another tenant occupying his property.

(26). So far as the scope and application of provision 482 CrPC it intends to prevent the abuse of process of Court and otherwise secure the ends of

justice. While exercising the power under the section, the Court does not function as a court of appeal and revision and the court has a wide discretion

to take into account almost all the situations where the interference of the High Court became necessary on account of delay in proceeding or for any

other reason amounting to operation, harassment in any trial or proceeding.

(27) The Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash proceedings- (i) where it

manifestly appears that there is a legal bar, e.g., want of sanction : (ii) where the allegations in the FIR or complaint taken at its face value do not

constitute any offence; (iii) where the allegations constitute an offence but there is no legal evidence or the evidence adduced clearly fails to prove the

charge. In dealing with the last class of cases, it is important to bear in mind the distinction between a case where there is not legal evidence or where

there is evidence which is clearly inconsistent with the accusation made and cases where there is legal evidence which on appreciation may or may

not support the accusation.

(28) Looking into the case in hand it can be said that there is no legal evidence in support of the accusation made by the complainant and in the

backdrop even the case is allowed to continue, there is bleak chance of conviction. Continuation of the criminal proceedings held to amount to abuse

of process of court. In the circumstances, it appears to be a fit case to invoke the provision of 482 CrPC.

(29) For the reasons mentioned above, both the petitions are allowed and criminal proceeding pertaining to the CR Case No. 1089/2012 pending before

the Judicial Magistrate, First Class, Kamrup (M), Guwahati is hereby quashed and set aside.