Madan Mohan Sharma vs State Of U.P. And Another
2023 Latest Caselaw 27196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192531
 
Court No. - 93
 

 
Case :- APPLICATION U/S 482 No. - 13275 of 2018
 

 
Applicant :- Madan Mohan Sharma
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anshul Kumar Singhal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Anshul Kumar Singhal, learned counsel for the applicant and Sri Udai Bhan, learned A.G.A. for the State.

2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings against the applicant in Complaint Case No. 2548, under Section 420 I.P.C., P.S. Hathras Gate, district-Hathras, pending in the court of Chief Judicial Magistrate, Hathras, as well as summoning order dated 19.12.2017.

3. The contention of learned counsel for the applicant is that applicant and opposite party no. 2 are the grandsons of late Netram Sharma, who during his lifetime executed a registered trust deed on 01.01.1945 and the father of the applicant was nominated as Manager of the aforesaid trust, thereafter a registered will deed dated 20.11.1974 was executed by late Netram Sharma, by which all managerial rights of the aforesaid trust was given to Sri Damodar Das (father of the applicant). It was further provided in the aforesaid will deed that heirs of Damodar Das will continue to manage the affairs of the trust. Subsequently, the opposite party no. 2 and his brother started putting their claim over the property of trust, denying the trust deed, as well as will dated 20.11.1974. After the death of Damodar Das, father of opposite party no. 2 has filed a suit bearing Original Suit no. 48 of 1983 for declaration of ownership regarding trust property. Subsequently, this suit was disposed of on the basis of compromise entered into between the parties regarding trust property. Subsequently, when the the opposite party no. 2 had started interfering the applicant in the enjoyment of the property in question, then the applicant has filed Original Suit No. 201 of 2005 for permanent injunction and declaration. The said suit was decreed by order dated 19.02.2010, in which the applicant was declared Manager of the trust and opposite party no. 2 and his brother were injected from transferring any part of the property of the Dharamshala, though the aforesaid judgment dated 19.02.2010 passed in Suit No. 210 of 2005 was challenged by the opposite party no. 2 in First Appeal No. 213 of 2010 but this Hon'ble Court did not stay the judgment dated 19.02.2010 and only order of status quo was passed. After loosing the litigation, the opposite party no. 2 has filed impugned complaint on 19.06.2017 on the ground that applicant has violated the terms of compromise entered into between the parties in Suit No. 48 of 1983 before the Munsif Court, Hathras.

4. Learned counsel for the applicant has further contended that from the perusal of the impugned complaint, no case under section 420 I.P.C. is made out against the applicant and the ingredients of cheating as defined under Section 415 I.P.C. are missing and there is no allegation that applicant had fraudulently or dishonestly induced to deliver any property.

5. From the perusal of the record, it appears that specific case of opposite party no. 2 in his complaint as well as in his statement recorded under Section 200 Cr.P.C. is that though as per compromise entered into between the parties, during pendency of the Suit No. 48 of 1983, the Dharamshala was given to opposite party no. 2 but in violation of the aforesaid compromise deed and the applicant retained the same with malafide intention. Therefore, even if the entire allegation of the complaint as well statement of complainant recorded under Section 200 Cr.P.C. are taken as true even then case under Section 420 I.P.C. is not made out against the applicant. The Apex Court in number of judgments held that there is tendency of the parties of converting a civil litigation into criminal litigation. Hon'ble Apex Court in Gulam Mustafa vs. State of Karnataka (2023) SCC online SC 603 observed in paragraph 36, which reads as under:

"What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no. 2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance."

6. Similarly Hon'ble Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, (2021) SCC online SC 315 in paragraph 60 of the judgement, observed as under:

"In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice."

7. The Hon'ble Apex Court in the case of Archana Rana vs. State of U.P. and another, (2021) volume 3 SCC 751 observed in paragraph 7 & 8 for making out of a case under Section 420 I.P.C. There must be element of cheating since beginning. In paragraph 7 & 8 in the judgment of Archana Rana (supra) is being quoted as below:

"7. Having heard learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondent-State and having gone through the averments in the complaint and the chargesheet, even if the averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419 & 420 IPC. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy (supra), the ingredients to constitute an offence under Section 420 are as follows:

i) a person must commit the offence of cheating under Section 415; and

ii) the person cheated must be dishonestly induced to

a) deliver property to any person; or

b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC."

8. "Cheating" is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a person by deceiving him:

The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.

Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating. "

8. As per the observation of the Apex Court as mentioned in Archana Rana's case, for making out a case under Section 420 I.P.C., there must be element of cheating as defined under Section 415 I.P.C., therefore, cheating is an essential ingredient for an act to constitute an offence under Section 420 I.P.C. Fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 I.P.C. In the present case element of cheating is missing as there is allegation of violation of agreement.

9. In view of the facts and circumstances of the case, from the perusal of the record and after considering the submissions advanced by learned counsel for the parties, this Court is of the view that no case under Section 420 I.P.C. is made out against the applicant and a dispute of purely civil nature between the parties has been converted into criminal prosecution of the applicant at the behest of opposite party no. 2, therefore, the entire proceedings of the aforesaid case is hereby quashed.

10. The present 482 Cr.P.C. application stands allowed.

Order Date :- 5.10.2023

Faridul