Bombay High Court
Ganesh S/O. Vitthaldas Chandak vs State Of Maharashtra Thr. ... on 8 August, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 214 OF 2017
PETITIONER :- Ganesh s/o Vitthaldas Chandak, aged about
59 years, Occ : Business, R/o : Padmavati
Square, Opp. Telephone Exchange, Arvi,
Dist.: Wardha.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through Ministry For
Home, Mantralaya, Mumbai.
2. State of Maharashtra, through
Superintendent of Police, Dist: Wardha.
3. State of Maharashtra, through Police Station
Officer, Police Station: Sawangi, Dist:
Wardha.
4. Charandas s/o Motiramji Harle, Aged about
44 yrs., Occ: Pvt. Service, R/o: Laxmi Nagar,
Sewagram Road, Wardha.
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Mr.J.M.Gandhi, counsel for the petitioner.
Mr. Ambarish Joshi, Additional Public Prosecutor
for the respondent Nos.1 to 3.
Mr. M.F. Khan, counsel for the respondent No.4.
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CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 08.08.2017
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O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The criminal writ
petition is heard finally at the stage of admission with the consent of the
learned counsel for the parties.
2. By this writ petition, the petitioner seeks the quashing of
the first information report registered against the petitioner for an
offence punishable under section 420 read with section 34 of the Penal
Code.
3. Few facts giving rise to the petition are stated thus:-
The petitioner and the respondent No.4 had entered into
an agreement of sale in respect of plot No.96 at Mouza Sawangi in
Wardha District on 07/03/2007. The parties were bound by the terms
and conditions recorded in the agreement of sale dated 07/03/2007.
There were some disputes between the parties and the petitioner did
not execute the sale deed of the property that was agreed to be sold by
the agreement dated 07/03/2007. On 28/02/2017, i.e. ten years after
the execution of the agreement of sale, the respondent No.4 lodged a
report alleging therein that the petitioner had committed an offence
punishable under section 420 of the Penal Code. It was alleged by the
respondent No.4 in the said complaint that the petitioner and the
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respondent No.4 had entered into an agreement for selling the plot of
land for a sum of Rs.2,30,750/- and a sum of Rs.80,000/- was paid by
the respondent No.4 to the petitioner towards earnest amount and the
balance consideration was liable to be paid by the applicant from time
to time. It is alleged in the complaint that the petitioner and his partner
were called upon by the respondent No.4 from time to time to execute
the sale deed of the concerned plot in favour of the respondent No.4
and / or to return the amount that was paid to the petitioner towards
earnest money and the consideration for the execution of the sale deed.
It is alleged in the complaint that the petitioner started avoiding the
respondent No.4 by not receiving his calls and by disconnecting and
switching off the phone. It is alleged in the complaint that the petitioner
had cheated the respondent No.4.
4. On the basis of the first information report, the respondent
Nos.1 to 3 investigated in the matter and on the basis of the material,
secured by the respondent No.3 during the investigation, registered an
offence punishable under section 420 of the Penal Code against the
petitioner. The petitioner has sought the quashing and setting aside of
the first information report registered against him as according to him,
the ingredients of the provisions of section 420 of the Penal Code
cannot be made out on the basis of the first information report as also
the material on the basis of which the crime is registered.
0808cr.wp214.17-Judgment 4/9
5. Shri J.M.Gandhi, the learned counsel for the petitioner,
submitted that an agreement of sale was executed between the
petitioner and the respondent No.4 in the year 2007 and more than ten
years later the respondent No.4 has falsely filed the complaint against
the petitioner with a view to pressurise the petitioner in a matter arising
out of a contract and which is clearly of a civil nature. It is submitted
that the essential ingredient of the offence punishable under section
420 of the Penal Code is that, there should be a dishonest intention to
deceive another person. It is submitted that on the basis of the first
information report, even if it is accepted at its face value as also the
documents available with the respondent Nos.1 to 3, it cannot be said
that the essential ingredient for the offence punishable under section
420 of the Penal Code could be made out. It is submitted that similar
type of cases came up before the Hon'ble Supreme Court and by the
judgments, reported in (2012) 2 SCC (Criminal) 650 (Thermax Ltd.
v. K.M.Johny), AIR 2008 SC 251 (Inder Mohan Goswami v. State of
Uttaranchal) and 1999 Cri.L.J. 598 (Nageshwar Prasad Singh v.
Narayan Singh), it is held by the Hon'ble Supreme Court that a
liability, if any, arising out of a breach of contract would be of a civil
nature and not criminal and in such circumstances, the criminal
proceedings are liable to be quashed. It is stated that in all the matters
before the Hon'ble Supreme Court, there was a contract executed
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between the parties for the sale of the property and when the property
was not sold and a sale deed was not executed in favour of the vendee,
the vendee had filed the complaint against the vendor under section
420 of the Penal Code. It is submitted that since the essential ingredient
of an offence punishable under section 420 of the Penal Code cannot be
prima facie made out, the prayer made by the petitioner needs to be
granted.
6. Shri Ambarish Joshi, the learned Additional Public
Prosecutor appearing for the respondent Nos.1 to 3 submitted that the
first information report was registered against the petitioner under
section 420 read with section 34 of the Penal Code as according to the
respondent No.4, the petitioner had cheated the respondent No.4 by
refusing to execute the sale deed in his favour after receiving the
consideration for the sale of the property. It is stated that the
investigation in the matter is still in progress and in the circumstances
of the case, it cannot be said that the first information report was
wrongly registered against the petitioner.
7. Shri Khan, the learned counsel for the respondent No.4,
submitted that the petitioner had executed an agreement of sale in
favour of the respondent No.4 on 12/02/2007 as one of the vendors
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and though the consideration for the sale of the concerned plot was
paid to the petitioner, the petitioner avoided to execute the sale deed in
favour of the respondent No.4, despite several requests. It is stated that
instead of executing the sale deed in favour of the respondent No.4, the
petitioner and the other partner have executed the sale deed in favour
of Shri Romit Heda and have thereby cheated the respondent No.4.
8. On a reading of the judgments rendered by the Hon'ble
Supreme Court as also the provisions of section 420 of the Penal Code,
it appears that the ingredient of the offence punishable under section
420 of the Penal Code cannot be prima facie made out in the instant
case as the material on record shows that the transaction
between the petitioner and the respondent No.4 was an agreement to
sell the property and the dispute is of a civil nature. There has to be a
dishonest intention to deceive another person for making out an offence
punishable under section 420 of the Penal Code. Neither are the said
ingredients prima facie made out from the first information report
lodged by the respondent No.4 against the petitioner nor are they made
out from the agreement of sale and the other documents on the basis of
which the respondent Nos.1 to 3 have registered the first information
report against the petitioner under section 420 of the Penal Code. It is
held by the Hon'ble Supreme Court in the judgment, reported in (2012)
0808cr.wp214.17-Judgment 7/9
2 SCC (Criminal) 650 that with a view to avoid the period of limitation
under civil law, criminal proceedings cannot be resorted to. In the case
before the Hon'ble Supreme Court, the parties had executed some
purchase orders in the year 1995 and the complaint was filed by one of
the parties to the agreement/purchase orders in the year 2002 and in
those set of facts, the Hon'ble Supreme Court held that the complainant
in the said case was trying to circumvent the jurisdiction of civil courts
which estopped him from proceeding on account of law of limitation,
which was impermissible. In similar set of facts, the Hon'ble Supreme
Court has held in the judgments reported in AIR 2008 SC 251 and
1999 Cri.L.J. 598 that the court must ensure that criminal prosecution
is not used as an instrument of harassment or for seeking private
vendentta or with an ulterior motive to pressurise the accused. In the
aforesaid cases, criminal proceedings under section 420 of the Penal
Code were instituted against the accused in matters arising out of the
breach of contract. The Hon'ble Supreme Court, therefore, held in the
judgments that liability, arising out of the breach of contract is of a civil
nature and not criminal. In the instant case, an agreement of sale was
executed between the petitioner and the respondent No.4 in the year
2007 and if the petitioner had not executed the sale deed in favour of
the respondent No.4, as per the agreement, the respondent No.4 was
free to institute civil proceedings for appropriate relief. However,
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instead of doing so, the respondent No.4, with a view to pressurise the
petitioner, filed the complaint against him for an offence punishable
under section 420 of the Penal Code. As held by the Hon'ble Supreme
Court, in the case of State of Haryana v. Bhajan Lal, reported in
(1992) SCC (Cri) 426 that where the allegations made in the first
information report or the complaint, even if they are accepted at their
face value and in the entirety do not prima facie constitute any offence
or make out a case against the accused, the High Court would exercise
its extraordinary jurisdiction under section 482 of the Criminal
Procedure Code to quash and set aside the proceedings. The law laid
down by the Hon'ble Supreme Court is reiterated in the subsequent
judgments, reported in (2004) 6 SCC 522 (State of A.P. v. Golconda
Linga Swamy) and (2005) 1 SCC 122 (Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque). It is held by the Hon'ble Supreme
Court in the judgment, reported in (2005) 1 SCC 122 that it would be
an abuse of process of the court to allow any action which would result
in injustice and prevent the promotion of justice. It is further held in
the said decision that in exercise of the powers, the court would be
justified in quashing any proceedings if it finds that the initiation/
continuation of it, amounts to abuse of the process of the court or
quashing of the proceedings would otherwise serve the ends of
justice. It is held that when no offence is disclosed by the complaint, it
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is permissible for the court to look into the matter to assess whether any
offence is made out even if the allegations are accepted in the totality.
In the instant case even if the allegations are accepted in the totality, no
case is made out for registering an offence against the petitioner under
section 420 read with section 34 of the Penal Code.
9. Hence, for the reasons aforesaid, the criminal writ petition
is allowed. The offence registered against the petitioner under section
420 read with section 34 of the Penal Code bearing Crime No.27 of
2017 as also the further proceedings arising there from, are hereby
quashed and set aside. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
KHUNTE
