The Bombay High Court dismissed an application filed under Section 482 of the CrPC, 1973 challenging the order passed by the learned Judicial Magistrate First Class, whereby the learned Magistrate rejected the application made by the applicant-accused for his discharge.
The Court observed that the criminal prosecution cannot be quashed only because the other side has filed a civil suit with respect to the same transaction; the criminal proceedings can continue on the same set of facts even if the facts disclose the civil dispute as well.
Brief Facts:
A crime came to be registered against the applicant accused for an offence punishable under Section 420 of the IPC, 1860. It was the case of the prosecution that the accused, with dishonest intention, induced the informant company to enter into a lease agreement, knowing fully well that the accused was not in possession of the property as well as had not acquired title to the property. On the basis of the recovery certificate and with fraudulent and dishonest intention, he induced the informant-company for execution of the lease agreement.
The accused concealed from the informant the orders passed till the execution of the lease deed with regard to setting aside the auction sale which had given the ownership of the land to the accused. The accused was never put in possession of the land. The informant on initiation of proceeding by the Recovery Officer came to know about the real state of affairs. The learned Judicial Magistrate found the material sufficient to presume the commission of offence by the accused. Being aggrieved, the accused has come before this Court.
Contentions of the Applicant:
The Learned Counsel for the Applicant submitted that the informant-company being manned by experts could not contend that without making a thorough enquiry, the transaction was entered into with the accused. The accused had apprised the informant about the real state of affairs and therefore, the question of having entertained a dishonest intention at the very inception of the transaction by the accused cannot be believed and accepted. Further, the Counsel pointed out that in order to seek redressal of dispute, the informant company has filed a civil suit against the accused for damages; simultaneously, this criminal proceeding has been initiated just to harass and pressurize the accused to succumb to the proposals of the informant.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the accused conveniently concealed the facts within his knowledge with regard to setting aside the auction sale and recovery certificate by the Debt Recovery Tribunal. He argued that this intention of the accused to cheat the informant at the very beginning of the transaction can be gathered from the facts, circumstances, and material brought on record. Further, he contended that the dispute between the parties cannot be termed as a civil dispute simply because of the recourse taken by the informant to the remedy under civil law.
Observations of the Court:
The Court noted that the accused transferred the interest in the property in favour of the informant knowing fully well that he had no right in the property. On the date of the transaction, he knew that the very auction sale and the recovery certificate on the basis of which he claimed the right in the property, was set aside. The order of Debt Recovery Tribunal setting aside the auction sale and the recovery certificate was confirmed by the Delhi High Court.
The accused was, therefore, not entitled to dispose of the property. The material on record is sufficient to infer the intention of the accused to deceive the informant at the very inception of the transaction. There is no material at this stage to conclude that he had made the informant aware of all these facts before executing the lease deed. The intention of the party has to be ascertained on the basis of the facts and circumstances obtained on the record.
Further, the Court observed that the criminal prosecution cannot be quashed only because the other side has filed a civil suit with respect to the same transaction. It is held that the criminal proceedings can continue on the same set of facts even if the facts disclose the civil dispute as well. The availability of civil remedy cannot be a ground to quash a criminal proceeding.
The decision of the Court:
The Bombay High Court, dismissing the application, held that if the matter is considered in the backdrop and conspectus of the facts and evidence on record, it would show that the learned Magistrate was right in rejecting the application.
Case Title: Deepak v State of Maharashtra & Anr.
Coram: Hon’ble Justice G. A. Sanap
Case no.: CRIMINAL APPLICATION (APL) NO. 1071 OF 2018
Advocate for the Applicant: Mr. R.L. Khapre
Advocate for the Respondent: Mr. S.A. Ashirgade, and Mr. M.R. Joharapurkar
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