Jigneshkumar Hiralal Patel vs State Of Gujarat
2023 Latest Caselaw 4272 Guj

     R/CR.MA/19969/2013                              JUDGMENT DATED: 09/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 19969 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1      Whether Reporters of Local Papers may be allowed                  No
       to see the judgment ?

2      To be referred to the Reporter or not ?                           No

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?

4      Whether this case involves a substantial question                 No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          JIGNESHKUMAR HIRALAL PATEL
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MS TEJAL A VASHI(2704) for the Applicant(s) No. 1
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
UNSERVED EXPIRED (R) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 09/06/2023

                                ORAL JUDGMENT

1. By way of present application filed under section 482 of Code of Criminal Procedure, the applicant - Jigneshkumar Hiralal Patel has prayed for following reliefs :-

R/CR.MA/19969/2013 JUDGMENT DATED: 09/06/2023

"(a) This Hon'ble Court may be pleased to exercise the powers under the provisions of Section 482 of the Code of Criminal Procedure, 1973 and thereby be pleased to quash and set aside the FIR being CR No.I-113/2013 dated 30.10.2013 at Annexure A filed before the Navsari Police Station for the offences punishable under section 420 and 406 of IPC qua the applicant.

(a)(1) This Hon'ble Court may be pleased to quash and set aside the charge sheet dated 24.\/03/2014 being number CC.No.22/2014 which is at Annexure I to the application.

(b) Pending the hearing and final disposal of this application be pleased to stay further investigation of impugned FIR being CR No.I-113/2013 dated 30.10.2013 at Annexure A filed before the Navsari Police Station for the offences punishable under sections 420 and 406 of IPC qua the applicant.

(b)(1) Pending the hearing and final disposal of this application, this Hon'ble Court may be pleased to stay the charge sheet at Annexure-I and further proceedings.

(c) To grant any other appropriate and just reliefs"

2. Brief facts leading to filing of the case are as follows :-

2.1 As per FIR, the complainant entered into an agreement to sale with the applicant - original accused no.1- who is the power of attorney holder of original owner of lands bearing Block

R/CR.MA/19969/2013 JUDGMENT DATED: 09/06/2023

No.666, Block No.668 and Block No.669 paike situated at Mouje Dandi Gam, Taluka Jalalpore, District Navsari which are agricultural lands. Pursuant to the said banakhat, it is alleged that the complainant had paid an amount of Rs.32 lakhs to the applicant towards the banakhat amount and after entering into the said banakhat i.e. agreement to sale, the applicant herein refused to sell the land to the complainant and has further sold the land to some other person viz. Ashokchand Gulabchand Shah by way of registered sale deed on 22.11.2013 and thereby has committed offences as enumerated in the FIR.

3. During pendency of the present application, original complainant - Mahendra Bhikundas Rana has expired.

4. Heard learned advocate Mr. Tejal Vashi for the applicant and learned APP Mr. Chintan Dave for the respondent - State.

5. It is submitted by the learned advocate Ms. Tejal Vashi for the applicant that considering the allegations levelled in the FIR, it appears that no case for the offence under section 406 and 420 of IPC is made out. The applicant has not committed any criminal breach of trust or cheating. She further submits that considering plain reading of the FIR, it is alleged that the complainant had paid Rs.32 lacs to accused no.1 i.e. the applicant and pursuant to taking part of sale consideration, the applicant executed agreement to sale for the land bearing Block No.666, Block No.668 and Block No.669 paike situated at Mouje Dandi Gam, Taluka Jalapore, District Navsari in favour of original complainant. The land was agricultural land, however, the original accused has not executed sale deed by specifically

R/CR.MA/19969/2013 JUDGMENT DATED: 09/06/2023

performing agreement to sale, but sold the said land to other person viz. Ashokchand Gulabchand Shah vide sale deed dated 22.11.2013 and as such committed offence of fraud, cheating and criminal breach of trust. She would further submit that taking allegations on its face, at the most, it constitute civil dispute between the parties and same is converted into criminal proceedings in order to pressurize the accused - applicant and therefore, it is clear abuse of process of law and must be quashed in exercise of jurisdiction under section 482 of Code of Criminal Procedure. Learned advocate Ms. Tejal Vashi by producing copy of Special Civil Suit No.93 of 2013 which is filed before the learned Principal Senior Civil Judge, Navsari seeking relief of specific performance of alleged agreement to sale submits that original complainant since has expired, suit was abated on 03.05.2017 and even thereafter, legal heirs of deceased - original complainant have not pursued the proceedings, which clearly indicates that civil dispute is also not existing. Learned advocate Ms. Vashi thus has submitted that in the facts and circumstances of the case, continuation of criminal proceedings against the present applicant - accused is nothing but sheer abuse of process. Having submitted so, she urge to allow this petition and to grant relief prayed.

6. Learned APP Mr. Chintan Dave for the respondent - State has strongly opposed the petition as well as arguments canvassed by learned advocate Ms. Tejal Vashi for the applicant by submitting that allegations of cheating and criminal breach of trust is constituted primarily and prima facie on bare reading of the FIR, this allegations can be testified during trial and it cannot be subject matter of quashing jurisdiction. He would

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further submit that let trial go on and let there proof that there was no dishonest intention on the part of the accused to cheat original complainant. He would further submit that merely because civil suit is abated, it would not give premium to the applicant to get present proceedings quashed. He would further submit that looking to chronology and hierarchy in which event took place for selling agricultural land, it prima facie indicates that accused has committed offence. Thus, he submits that present application may be dismissed.

7. I have heard learned advocates for the respective parties.

8. It is evident that original complainant has filed civil suit for specific performance of agreement to sale vide Special Civil Suit No.93 of 2013 before the learned Principal Senior Civil Judge, Navsari. Said suit is abated on the death of original complainant. Legal heirs and representatives of deceased - original complainant have not chosen to continue the proceedings, whereby, it is alleged that instead of executing agreement to sale, the applicant - accused has executed sale deed in favour of third party and thereby right which was accrued in favour of the original complainant was compromised with dishonest intention. Taking that fact on record, bare reading of FIR indicates that no allegation is made to the effect that the applicant has acted in dishonest and fraudulent intention in relation to breach of condition of contract and no averments are disclosed in the complaint that the applicant had fraudulent and dishonest intention at the time of executing agreement to sale.

9. In various pronouncements, Hon'ble Supreme Court has

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unequivocally and explicitly held that breach of contract is not an offence and failure to honour promise is not cheating. Cheating can be attracted if dishonest intention exists from inception of transaction. Mere non performing part of contract or agreement to sale, does not attract offence of cheating.

10. In the case of Mahadev Prasad v/s. State of West Bengal reported in AIR 1954 SC 724, the Hon'ble Supreme Court has observed that to constitute an offence of cheating, intention to deceive should be in existence at the time when inducement was offered.

11. Likewise in the case of Jaswantray Manilal v/s. State of Bombay reported in AIR 1956 SC 575 , the Hon'ble Supreme Court held that guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating "mens rea" on the part of the person must be established.

12. Other judgments can also be pressed into service for the said proposition, they are in the cases of G.A. Rao v/s. LHV Prasad and Ors reported in 2000 (3) SCC 693, Hridaya Ranjan Prasad Verma and ors. v/s. State of Bihar reported in 2000 (4) SCC 168 and Vir Prakash Sharma v/s. Anil Kumar Agarwal and Anr. reported in 2007 (7) SCC 373.

13. In the case of Anil Mahajan v/s. Bhor Industries Ltd. Reported in 2005 (10) SCC 228 , the Hon'ble Supreme Court laid down distinction between a mere breach of contract and the offence of cheating. It is observed that distinction has to be kept in mind between mere breach of contract and offence of cheating

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and it depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test and mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of transaction.

14. Close look at FIR indicates primary ingredient of dishonest intention since beginning being pivotal to constitute offence of cheating is missing. No averment is made to assert that the applicant from the beginning has fraudulent intention to grab money of the original complainant and to cheat him. In fact what emerges is initially there was agreement to sale for which complainant has no dispute but later on by subsequent conduct, according to FIR, the applicant has breached agreement to sale and executed sale deed in favour of third party. Breach of terms and conditions of agreement to sale can have recourse by way of civil proceedings, but in absence of fraudulent intention at the inception of agreement to sale, criminal proceedings which is filed can be said to be abuse of process and attracts quashing jurisdiction of this Court.

15. In the case of Cargo Movers (I) Pvt. Ltd. v/s. Dhanesh Bhadarmal Jain reported in AIR 2008 SC 247, the Hon'ble Supreme Court has held that for exercising inherent jurisdiction of the High Court, the Court can look into admitted documents to determine the issue. Further, it is held that criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of process of the Court. Superior Court exercising this power should also strive to serve the ends of justice.

R/CR.MA/19969/2013 JUDGMENT DATED: 09/06/2023

16. For the foregoing reasons, in peculiar facts of the case, this Court finds that it is a fit case to exercise jurisdiction under section 482 of Code of Criminal Procedure to quash impugned FIR and consequent proceedings arising therefrom. Hence, this application is allowed. FIR being C.R.No.I-113 of 2013 filed before the Navsari Police Station for the offence under sections 420 and 406 of IPC and all other consequential proceedings arising from said FIR are quashed and set aside. Rule is made absolute.

(J. C. DOSHI,J) SATISH