Gujarat High Court

Premsing Shiram Yadav vs State Of Gujarat on 17 March, 2023

Bench: Niral R. Mehta

    R/SCR.A/10079/2021                              JUDGMENT DATED: 17/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 10079 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

==========================================================

1     Whether Reporters of Local Papers may be allowed to                YES
      see the judgment ?

2     To be referred to the Reporter or not ?                            YES

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

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


==========================================================
                         PREMSING SHIRAM YADAV
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR RR MARSHALL SENIOR ADVOCATE WITH                            MR      DAIFRAZ
HAVEWALLA(3982) for the Applicant(s) No. 1
for the Respondent(s) No. 10,11,12,13,2,3,4,5,6,7,8,9
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 17/03/2023

                              ORAL JUDGMENT

[1] The present petition under Article(s) 226 / 227 of the Constitution

of India read with Section 482 of the Code of Criminal Procedure, 1973

R/SCR.A/10079/2021 JUDGMENT DATED: 17/03/2023

(for short, "the Cr.P.C.") at the instance of the original complainant is

directed against the order dated 3 rd July 2021 passed by the learned 6 th

Additional Sessions Judge, Ankleshwar, District : Bharuch in Criminal

Revision Application No.67 of 2018, by which the learned Sessions

Judge has confirmed the order dated 2 nd November 2015 passed below

Criminal Inquiry No.2 of 2015 by the learned Additional Chief Judicial

Magistrate, Ankleshwar in dismissing the criminal complaint filed

against the respondents herein for the offence punishable under Sections

406, 420, 467, 471, 120B read with 114 of the Indian Penal Code.

[2] The case of the prosecution can be stated as under by way of free

translation:

"(1) I, the complainant and accused no.10 Rakesh Gangaprasad Yadav, accused no.11 Rajesh Gangaprasad Yadav, accused no.12 Ramjit Mahadev Yadav and Jignesh Anilbhai Panwala, i.e total four partners purchased Non-agriculture land, made plots in the said land and planned to sell the same. Thereafter, Jignesh Anilbhai Panwala had left the partnership.

(2) Upon searching for Non-agriculture land, the land vide moje: village Adadara, Taluka- Ankleshwar, District: Bharuch, R.S. no./ Block no.90, ad-measuring 64400.00 sq.m. was selected. Since the aforesaid land was registered in the name of accused no.1 to 4 and his deceased brother Rameshbhai, therefore, meetings were arranged with them for purchasing the aforesaid land. At last, I, complainant and other partners decided to purchase the aforesaid land in Rs.73,92,000/-.

 R/SCR.A/10079/2021                                   JUDGMENT DATED: 17/03/2023




     (3)     Thereafter, I, the complainant and my partners paid the amount

of Rs.1,00,000/- cash to the accused no.1 to 4 and the deceased Rameshbhai on 04/02/2008. Therefore, accused no.1 to 4 and the deceased Rameshbhai executed notarized agreement to sell with possession in our favor. Thereafter, I, the complainant and my partners paid Rs.10,00,000/- to accused no.1 to 4 and the deceased Rameshbhai. Therefore, accused no.1 to 4 and the deceased Rameshbhai handed over the possession of the aforesaid land to us. I and my partners got fencing done at the aforesaid land and made residential plots in the name of "Ganganagar society" and decided to construct houses and started sales office for booking of such plots in the knowledge of accused no. 1 to 4 and the deceased Rameshbhai.

(4) Accused no. 1 to 4 and the deceased Rameshbhai informed me that they have made the sales transaction of the aforesaid land with accused no.5 previously. Therefore, I and accused no.10 and 11 who purchased the land along with us, had meeting with accused no.5. Accused no.5 stated that he is power of attorney holder for accused no.1 to 4 and the deceased Rameshbhai. Therefore, accused no.5 executed a notarized memorandum, of understanding on 05/02/2008 giving consent to the agreement executed between I, the complainant and accused no.1 to 4 and deceased Rameshbhai on 04/02/2008. Thus, accused no.5 declared the first agreement to sell as null and void which was executed with the original owners of the land. It was decided to do the transaction and administration of the aforesaid land with accused no.5 as power of attorney holder. Therefore, I and others paid the amount of Rs.10,00,000/- to accused no.2 and 5.

(5) Thereafter, I and the other partners executed an agreement with the accused No.1 to 4 and deceased Rameshbhai on 06/12/2009 and

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the agreement was notarized also and as per the agreement, the time limit to repay the consideration amount of the agreement to sell was fixed to be 31/08/2011.

(6) The accused No.1 to 4 and deceased Rameshbhai had received the whole amount of consideration and were not executing a final sale- deed and the accused No.5 was also corroborating in the matter. Thereafter, the accused No.1 to 5 were served a notice under Section- 135(D) of the Bombay Land Revenue Code from the Mamlatdar, Ankleshwar. When I got to know about it, I became certain that, the accused No.1 to 5 were evading from executing a sale-deed by concealing such an important fact from me - the complainant. In fact, one Bharatbhai Dulabhai Sangani, by virtue of being attorney of the accused No.1 to 4 and deceased Rameshbhai, had executed a sale-deed of the land in dispute in favour of Pareshbhai Manubhai Borda on 03/05/2007 and therefore, revenue disputes were going on in that regard and therefore, the accused No.1 to 5 were evading from executing a sale-deed in my favour. Thereafter, when a decision of the revenue appeal came in favour of the accused No.1 to 4 and deceased Rameshbhai, I - the complainant told the accused No.1 to 4 and deceased Rameshbhai to accept Rs.53,92,000/-, the remaining amount of consideration and execute a registered sale-deed, which the accused No.1 to 4 and deceased Rameshbhai avoided. Further, my partner (the accused No.10) got involved in a police case and sent to the Surat District Jail and therefore, his father Gangaprasad Yadav - the accused No.6 and his sons - the accused No.10 and 11 used to advise the accused No.1 to 4 and deceased Rameshbhai "not to execute a sale- deed for the land in dispute in my favour".

(7) When I - the complainant got to know that the accused have hatched a conspiracy with me, I sent a legal notice to them and

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thereafter, filed a suit vide Special Civil Suit No.69/2011 in the Court of Principal Senior Civil Judge, Ankleshwar and in connection of which, filed a revised plaint also. Thereafter, the plaintiff No.2 in the said suit, i.e. the accused No.12 in the present case - Ramjeet Mahadev Yadav committed a cheating and breach of trust with me and colluded with the other accused persons and took action against me - the complainant. The said suit is pending in the Court at present.

(8) Thereafter, all the accused colluded, hatched conspiracy against me, the complainant and to accomplish such conspiracy, accused Nos.1 to 4 and deceased Rameshbhai executed sale deed of the disputed land in favour of accused Nos.6 and 7 on 18/08/2011, which was registered vide serial No.6435 of book No.1 in the Office of Sub Registrar, Ankleshwar. In the said deed, the accused Nos.8 and 9 have put their signature as witness and accused Nos. 9 and 10 have neither challenged the said deed nor taken any action in that regard. However, as the said deed was executed by their father, they have been confirming the same. All the accused know it very well that the rights of purchasing the disputed land lies with me, the complainant. In spite of that, as the accused hatched conspiracy against me, the complainant, colluded with each other and committed such unlawful act. Therefore, a written complaint was submitted to D.S.P. of Bharuch on 08/03/2013. In this regard, Ankleshwar Rural Police conducted investigation and passed order on 27/02/2014 to file the said complaint stating that no offence is made out and therefore, need has arisen to file the present complaint. (9) Accused No.1 to 4 and deceased Rameshbhai sold the land of their ownership, executed agreement to sell and received hefty amount from me, the complainant and accused No.5 entered into agreement assigning me, the complainant as power of attorney holder of accused No.1 to 4 and deceased Rameshbhai and took hefty amount. However, they made excuses to execute the sale deed of the said land in favour of

R/SCR.A/10079/2021 JUDGMENT DATED: 17/03/2023

the complainant. In the meantime, the accused No.6 and 7 got the sale deed of the land purchased by me, the complainant executed in favour of accused No.1 to 4 and deceased Rameshbhai. In that sale deed, the accused No.8 and 9 have signed as witnesses and though the accused No.10 and 11 are the partners of complainant, they have not challenged the said deed till date and they committed cheating and breach of trust with me, and without my knowledge, they sold the land to another person, which had already been sold once to the complainant by the original land owners and consideration had been paid to them and they executed the sale deed in favour of that person. As they have committed offences under sections 406, 420, 467, 468, 471, 114, 120(B) of I.P.C. and any other offence as may be found during the police investigation, I file the complaint to take action against them as per the law."

[3] In furtherance to the aforesaid complaint, the learned Magistrate

directed to the concerned police station to submit report under Section

202 of the Cr.P.C. The concerned police station, in compliance of the

aforesaid order, submitted its report dated 14th August 2015.

[4] The learned Additional Chief Judicial Magistrate, Ankleshwar,

after having considered the said report and having heard the learned

advocate for the complainant, vide its order dated 2 nd November 2015,

rejected the complaint under Section 203 of the Cr.P.C.

[5] Feeling aggrieved and dissatisfied by the aforesaid, the petitioner

herein - original complainant has approached the learned Principal

R/SCR.A/10079/2021 JUDGMENT DATED: 17/03/2023

District and Sessions Judge, Bharuch by way of Criminal Revision

Application No.67 of 2018 under Section 397 of the Cr.P.C. The said

Criminal Revision Application came up for hearing before the learned 6 th

Additional Sessions Judge, Ankkeshwar, District : Bharuch, who, vide its

order dated 3rd July 2021, rejected the said Criminal Revision

Application by affirming the order dated 2nd November 2015 passed by

the learned Magistrate in Criminal Inquiry No.2 of 2015.

[6] Thus, being aggrieved and dissatisfied by the aforesaid, the

petitioner herein - original complainant has approached this Court by

way of present Special Criminal Application with the following reliefs:

"8(A) Your Lordship may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ order or direction quashing and setting aside the order dated 03.07.2021 passed by the learned 6 th Additional Sessions Judge, Ankleshwar, District : Bharuch in Criminal Revision Application No.67/2018 and the order dated 02.11.2015 passed below Criminal Inquiry No.2/2015 by the learned Additional Chief Judicial Magistrate, Ankleshwar and thereby direct the learned Additional Chief Judicial Magistrate, Ankleshwar to pass an order of registration of FIR as per Section 156(3) of the Code of Criminal Procedure, 1973;

(C) Pending the admission and / or final hearing of the present petition be pleased to direct the learned Additional Chief Judicial Magistrate, Ankleshwar to pass and order of registration of FIR as per Section 156(3) of the Code of Criminal Procedure, 1973 pursuant to the complaint of the applicant herein;

(D) Your Lordships may be pleased to pass such order as may be deemed just and proper in the circumstances of the case."

   R/SCR.A/10079/2021                              JUDGMENT DATED: 17/03/2023




[7]    Heard learned Senior Advocate Mr. R. R. Marshall assisted by

learned advocate Mr. Daifraz Havewalla for the petitioner herein -

original complainant and learned Additional Public Prosecutor Mr.

Pranav Trivedi for the respondent - State of Gujarat.

[8] Learned Senior Advocate Mr. Marshall submitted that the order

passed by the Courts below are contrary to law and against the evidence

on record, therefore, according to Mr. Marshall, it deserves to be

quashed and set aside. Learned Senior Advocate Mr. Marshall

vehemently submitted that the petitioner herein has paid handsome

amount to the original accused Nos.1 to 4 i.e. the original owners at the

time when the agreement to sale was executed. Mr. Marshall further

submitted that for making rest of payment, the time limit was also

extended to 31st August 2011. However, on 18th August 2011, the

original accused Nos.1 to 4 have executed sale deed in favour of the

accused Nos.6 and 7. According to Mr. Marshall, therefore, the accused

Nos.1 to 4, in connivance with accused Nos.6 and 7, with malign

intention, defrauded the petitioner herein to dupe the money which was

paid by the petitioner herein at the time of execution of agreement to

sale. Mr. Marshall further submitted that his partners i.e. accused Nos.10

and 11 are the sons of subsequent purchaser i.e. accused No.6, and thus,

indirectly, their interest came to be protected and only the petitioner

R/SCR.A/10079/2021 JUDGMENT DATED: 17/03/2023

herein has been duped. Mr. Marshall, in view of the aforesaid,

vehemently submitted that neither the sale deed was executed in favour

of the petitioner herein nor money was returned back and thereby, the

petitioner herein has been cheated by the accused persons in connivance

with each other. Mr. Marshall further submitted that despite the

petitioner herein was willing to pay remaining sale consideration, the

original accused Nos.1 to 4 have not executed the sale deed and thus,

Special Civil Suit No.69 of 2011 came to be filed by the petitioner herein

for specific performance, however, despite having knowledge about the

same, the sale deed came to be executed in favour of the accused Nos.6

and 7. Thus, according to learned Senior Advocate Mr. Marshall, this is

nothing but a clear case of cheating.

[9] By making above submissions, learned Senior Advocate Mr.

Marshall submitted that the ingredients of cheating and criminal breach

of trust have fairly been made out and thereby, it can be said that

cognizable offence has been disclosed and thereby, he prays this Court to

allow the present petition as prayed for.

[10] Per contra, learned Additional Public Prosecutor Mr. Pranav

Trivedi has vehemently opposed the present petition contending, inter

alia, that the order passed by the learned Courts below are perfectly

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justified and thereby, no interference is required to be made by this

Court. Mr. Trivedi submitted that the private criminal complaint filed in

the Court below after almost two years, for which, no justification

whatsoever has been given by the petitioner herein. Mr. Trivedi,

therefore, submitted that the complaint is thereby hit by inordinate

unexplained delay of two years and thereby, the learned Trial Court has

rightly rejected the application of the petitioner herein. Mr. Trivedi

submitted that the agreement to sale was executed with possession,

however, the said document is an unregistered document and that too,

the entire token said to have been paid in cash. Therefore, according to

Mr. Trivedi, the transaction itself is not only on the basis of illegal

document, but is also based on dubious cash transaction. Mr. Trivedi

further submitted that the petitioner herein could not produce any

evidence about the cash paid to the accused persons. According to Mr.

Trivedi, although the cash payment of token amount is not barred by

law, but, at the same time, the person, who pay such a huge cash, has,

prima facie, to show that he was holding such a huge amount of cash on

hand by any legal mode. Mr. Trivedi further submitted that the entire

case appears to be purely of civil dispute, more so, the dispute between

the partners itself i.e. the petitioner herein and the accused Nos.10 and

11. Thus, the present complaint is nothing, but a sheer abuse of the

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process of law and sought to convert pure civil dispute into criminal

offence only with a view to create pressure. It is pertinent to mention

here that, at this juncture, this Court has put specific query to the

learned advocate for the applicant that whether any cogent evidence is

available to show that a sum of Rs.10,00,000/- in cash was paid and if

yes, then whether any material to show that on the day of execution of

agreement to sale, the applicant was having such a huge amount on his

books of account. To which, the learned advocate could not submit any

satisfactory explanation.

[11] By making above submissions, learned Additional Public

Prosecutor Mr. Trivedi has prayed this Court to dismiss the present

petition in the interest of justice.

[12] I have heard the learned advocates appearing for the respective

parties and have gone through the material produced on record in detail.

No other and further submissions have been canvassed by the learned

advocates appearing for the respective parties except what are stated

hereinabove.

[13] Having considered the submissions of rival parties and also having

gone through the orders passed by the Courts below, a short question

that falls for the consideration of this Court is whether the learned Trial

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Court as well as the Revisionist Court have committed any error?

[14] So as to decide the aforesaid question, few relevant and admitted

facts deserve to be taken note of as under:

(i) An unregistered agreement to sale with possession came to

be executed by the accused Nos.1 to 4 in favour of the petitioner

herein. It is pertinent to note that no stamp fees has been paid and

the said document is also in violation of Section 17(1)(b) of the

Registration Act.

(ii) The token amount of Rs.10 Lakh at the time of execution of

sale deed said to have been paid by the petitioner herein by way of

cash. The petitioner herein could not show, prima facie, any

evidence that on the day on which the said amount of Rs.10 Lakh

was paid, the petitioner herein was having official cash on hand.

No books of account and/or any bank statement was produced so

as to justify the cash transaction.

(iii) Admittedly, the registered sale deed dated 17 th August 2011

was executed, for which the petitioner herein for the first time

made written complaint to the District Superintendent of Police,

Bharuch on 8th March 2013 i.e. after one and half years. The said

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complaint was refused to be registered by the Ankleshwar Rural

Police Station by way of order dated 27th February 2014. However,

the private complaint came to be filed on 12 th December 2014 i.e.

after almost delay of 10 months. No plausible and/or justifiable

reasons submitted by the petitioner herein.

(iv) Before initiating criminal proceedings, the petitioner herein

has already preferred Special Civil Suit No.69 of 2011 in the Civil

Court for specific performance. Thus, the initiation of criminal

proceedings appear to be nothing, but an afterthought and

pressurized tactics.

(v) Admittedly, the petitioner herein and the accused Nos.10

and 11 are the partners and signatories of so-called agreement to

sale. However, it appears that there is a dispute between the

petitioner herein and the original accused Nos.10 and 11 i.e. the

dispute between the partners and thereby, as it appears, further

amount of sale consideration could not be paid.

[15] Keeping in mind the aforesaid facts, in my considered opinion, the

Courts below have not committed any error in rejecting the complaint. I

say so because the entire dispute hinges upon an unregistered agreement

to sale, for which, a special civil suit has already been filed in the Civil

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Court by the petitioner herein seeking specific performance. The criminal

complaint with unexplained delay of almost two years appears to be an

afterthought and that too, with a view to create pressure on the so-called

accused persons. The initiation of criminal proceedings appear to be

clear abuse of the process of law inasmuch as by the said proceedings

purely civil dispute sought to be converted into criminal offence. The

another glaring fact, according to this Court, is not only the unregistered

document in contravention of Section 17 of the Registration Act, but the

token amount said to have been paid by the petitioner herein by way of

cash i.e. Rs.10 Lakh, for which, prima facie, the petitioner herein could

not show any evidence justifying the cash on hand on the day on which

the said token amount was paid. This Court is of the firm opinion that it

is a hightime where the Court should deprecate and/or discourage the

litigant and/or litigation arisen out of unaccounted cash known as "black

money". In the present case, the petitioner has very casually made

statement in the complaint about having paid a sum of Rs.10 Lakh in

cash towards token amount at the time of agreement to sale; the act, if

not justified properly, is in violation of the Income Tax Act. The

petitioner, in my view, while approaching the Court, should come with

absolutely clean hands. The allegation of the petitioner is based on cash

transaction, that too, on the basis of document i.e. unregistered

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agreement to sale, which was hit by the provisions of the Registration

Act. In my view, while setting criminal machinery on motion, foundation

of the allegation has to be fundamentally strong and not to be in

contradiction of any other laws. The criminal courts cannot be expected

to take cognizance mere filing of any complaint general in nature. The

complainant, who approaches the Court, shall have to prima facie

provide cogent material satisfying the conscience of the Court for taking

cognizance. I say so because, recently the Apex Court has held that

issuance of process under Section 204 of the Cr.P.C. should be only after

due application of mind. The said process cannot be issued

mechanically. In the instant case, the learned counsel appearing for the

petitioner - original complainant could not able to produce any evidence

either before the courts below or before this Court showing alleged

amount of Rs.10 lakh paid by way of token amount in cash nor as such,

reflected in his any books of accounts.

[16] It is also pertinent to note that in the entire complaint, if it is

taken on its face value, no such allegation and/or averment made so as

to constitute any offence under Sections 467 and 471 of the Indian Penal

Code. Therefore, in my considered opinion, invocation of the provisions

of Sections 467 and 471 of the Indian Penal Code is misconceived in

nature, and thereby, the Courts below have rightly not taken any

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cognizance of the same.

[17] So far as allegation under Sections 406 and 420 of the Indian

Penal Code is concerned, law relating to criminal breach of trust and

cheating is now well settled by the Hon'ble Apex Court in catena of

decisions viz. (i) Anil Mahajan v. Bhor Industries Ltd. & Anr., reported in

(2005) 10 SCC 228 and (ii) Samir Sahay alias Sameer Sahay v. State of

Uttar Pradesh & Anr., reported in (2018) 14 SCC 233, wherein the

Hon'ble Apex Court has held that mere allegation of breach of trust does

not give rise to criminal prosecution of cheating unless fraudulent or

dishonest is shown right at the beginning of the transaction. At this

stage, it would be apt to take into consideration the recent

pronouncement of the Hon'ble Apex Court in the case of Sarabjit Kaur

vs. The State of Punjab and another [Criminal Appeal No.581 of 2023

decided on 1st March 2023]. The relevant para can be quoted as under:

"13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request

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was for return of the amount paid by the respondent No.2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court."

[18] In the instant case, in the entire complaint, no such allegation

appears to have been made that the accused persons have intention to

defraud the petitioner from the very beginning of the transaction. Under

the circumstances, the Courts below cannot be said to have committed

any error much less in law, in not entertaining the complaint of the

petitioner. The Criminal Court cannot be permitted to be used for

settling score and/or used as pressurized tool. All the civil disputes of

breach of agreement, therefore, cannot fall within the scope and ambit

of Sections 420 and 406 of the Indian Penal Code unless fraudulent and

dishonest intention has been alleged right at the beginning of the

transaction.

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