Manoj Kumar Kapoor vs Sham Lal
2023 Latest Caselaw 228 j&K

                                                                         Sr. No. 5


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                         CRMC No. 92/2014
                                                         IA No. 108/2014

Manoj Kumar Kapoor                                   .....Appellant(s)/Petitioner(s)
                        Through: Mr. Inderjeet Gupta, Advocate and
q
                                 Mr. Yatin Mahajan, Advocate
                   vs
Sham Lal                                                       ..... Respondent(s)
                        Through: Mr. Dhiraj Chowdhary, Advocate


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                   ORDER

1. The petitioner has challenged the criminal proceedings initiated by the

respondent in a complaint titled, „Sham Lal vs. Manoj Kumar Kapoor

for commission of offences under Sections 500, 503, 504 and 420

RPC, pending before the court of learned Third Civil Subordinate

Judge, Special Excise Magistrate, JMIC, Jammu.

2. Heard learned counsels for the parties and perused the record.

3. Learned counsel for the petitioner has submitted that the dispute

between the petitioner and the respondent is civil in nature but it has

been given a criminal colour by the respondent by filing a complaint

before the trial Magistrate. He has further submitted that the order by

virtue of which process has been issued by the learned trial Magistrate

against the petitioner is not in accordance with law, inasmuch as, the

same has been passed in a mechanical manner without applying the

mind.

4. In the impugned complaint, it has been alleged by the

respondent/complainant that vide Sale Deed dated 25.04.2001, he had

sold the land measuring 17 ½ Marlas comprising Khasra No. 407 Min

situated at Dhok Paloura, Tehsil and District, Jammu in favour of the

petitioner/accused. It is further alleged that the

complainant/respondent demanded the sale consideration @ Rs.

25,000/- per Marla from the accused/petitioner but he has paid only an

amount of Rs. 45,000/-. When the complainant/respondent demanded

the balance amount, the accused/petitioner, who is serving in the

revenue department, by misusing his official capacity started harassing

and humiliating the complainant. The complainant is stated to have

filed a suit for declaration of the Sale Deed dated 25.04.2001 as null

and void before the court of 2nd Additional Munsiff, Jammu, which is

stated to be pending before the court.

5. It is further alleged in the complaint that in the month of June, 2008,

the complainant/respondent asked the accused to cancel the sale deed

and take back his money but he did not agree to the same and instead,

the accused/petitioner influenced the SHO, Police Station, Janipur,

who called the complainant/respondent to the Police Station and

harassed him. It is also alleged that the petitioner/accused influenced

certain revenue officers at Jammu and without filing of any case, the

complainant/respondent was called by Assistant Commissioner

Revenue (ACR), Jammu and even a notice was issued by Tehsildar,

Jammu to him on 30.09.2010 without there being a case before him.

6. On the basis of aforesaid allegations, it has been claimed by the

complainant/respondent that his reputation has been lowered down by

the acts of the accused/petitioner and he has been subjected to

harassment and humiliation, besides having been threatened.

7. As it is clear from the contents of the complaint, there appears to be a

dispute between the parties as regards to the sale of a plot of land.

While the complainant/respondent claims that he has not been paid the

full consideration amount that was agreed upon by the parties. On the

other hand, the accused/petitioner claims that whatever was agreed

upon between the parties and whatever was written in the contents of

the sale deed, the said amount has been paid by him to the

complainant/respondent.

8. The question that falls for determination is whether in the face of the

aforesaid nature of dispute between the parties, it would be open to a

criminal court to set the law into motion at the instance of one party to

the dispute against the other.

9. The Supreme Court in the case of M/S Indian Oil Corporation vs.

M/S NEPC India Ltd. & Ors (2006) 6 SCC 736, while noticing its

earlier judgments on the issue relating to exercise of jurisdiction under

Section 482 of Cr. P.C to quash the complaints and criminal

proceedings, has observed as under:

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are 5 CRM(M) No.403/2021 CrlM No.1353/2021 taken at their face

value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii)A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

14.While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant 6 CRM(M) No.403/2021 CrlM No.1353/2021 who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

10. From the aforequoted principles of law, it is clear that before

deciding as to whether proceedings in a criminal complaint are to be

quashed, the Court has to be satisfied that the subject matter involved

in the complaint is a purely civil wrong and it has no criminal texture

to it.

11. In the light of the aforesaid legal position, let us now analyze the

facts of the instant case. As already noted, the

complainant/respondent has alleged that he has not been paid full

consideration amount as was agreed between the parties whereas,

according to the accused/petitioner, whatever was payable under the

covenants of the sale deed, the same has been admittedly paid to the

complainant/respondent. The question as to what was the sale

consideration agreed between the parties as also the question whether

the petitioner/accused has not paid the full sale consideration to the

complainant/respondent are matters purely of civil nature. If the

petitioner/accused has not paid the full sale consideration, it is open

to the respondent/complainant to file appropriate civil proceeding

against the petitioner/accused, which he has already done.

12. According to the complainant/respondent, the petitioner/accused has

committed an offence of cheating by not paying the whole of the sale

consideration to him. In order to attract the ingredients of Section

420 RPC, there has to be an element of cheating on the part of the

accused.

13. Cheating has been defined in Section 415 RPC. To constitute an

offence under Section 420 RPC, there must be a fraudulent or

dishonest inducement on the part of a person thereby the other party

must have parted with his property. To establish an offence under

section 420 RPC, it must be shown that there was a fraudulent and

dishonest intention at the time of commission of offence and that a

person practising deceit has obtained the property by fraudulent

inducement and wilful misrepresentation. Mere breach of contract

cannot give rise to criminal prosecution for cheating unless

fraudulent or dishonest intention is shown at the beginning of the

transaction i.e. at the time when the offence is alleged to have been

committed.

14. The Supreme Court in the case of Hridaya Ranjan Prasad Verma

vs. State of Bihar (2000) 4 SCC 168 as also in Alpic Finance Ltd.

Vs. P. Sadasivan and another 2001(3) SCC 513 has held that

intention is the gist of the offence of cheating and in order to hold a

person guilty of cheating, it is necessary to show that he had

fraudulent or dishonest intention at the time of making the promise.

15. Coming to the facts of the instant case, it has been admitted by the

complainant/respondent that at the time of execution of sale deed, the

petitioner/accused had paid an amount of Rs. 45,000/- to him but the

balance amount was not paid by the accused/petitioner to him. This

means that at the time of execution of the sale deed, the

petitioner/accused intended to honour the commitment. Therefore, it

cannot be said that his intention at the time of entering into an

agreement with the complainant/respondent was either fraudulent or

deceitful. Therefore, the main ingredient of offence under Section

420 RPC is not made out against the petitioner/accused.

16. Even otherwise, as per complainant‟s own case, the covenants of the

sale deed provided for sale consideration of Rs. 45,000/- which has

been received by him. According to the complainant, it was verbally

agreed by the parties that the petitioner/accused would pay sale

consideration @Rs. 25,000/- per Marla. This verbal promise made by

the petitioner/accused can be proved only by filing the civil

proceedings and the complainant/respondent as per his own

admission has already filed a civil suit against the petitioner/accused

in this regard. The dispute pending between the parties is, therefore,

purely of civil nature and criminal colour to it is sought to be given

by the complainant/respondent by filing the impugned complaint

against the petitioner/accused.

17. The Supreme Court in the case Mitesh Kumar J. Sha vs. The State

of Karnataka and others 2021 SCC Online SC 976 has expressed

its disapproval for imparting criminal colour to a civil dispute merely

to take advantage of a relatively quick relief granted in a criminal

case in contrast to a civil dispute. The Court further went on to

observe that such an exercise is nothing but an abuse of the process

of law which must be discouraged in its entirety.

18. The other allegation made by the respondent/complainant in the

impugned complaint is that the petitioner/accused by misusing his

official position has subjected the complainant/respondent to

harassment and lowered his dignity at the hands of SHO, Police

Station, Janipur and certain revenue officers.

19. It has been admitted by the complainant/respondent that he was

demanding the balance amount of sale consideration from the

petitioner/accused and as per the covenants of the sale deed, the total

sale consideration was fixed as Rs. 45,000/-. In the face of this state

of affairs when the petitioner/accused had already paid the whole

sale consideration in terms of the covenants of the sale deed, he was

justified in approaching the Police when he was subjected to the

demands by the complainant. If in connection with those complaints,

the respondent/complainant was called by the Police, it cannot be

stated that he has been subjected to any harassment at the hands of

the petitioner/accused. If at all any harassment has been meted out to

the complainant, his grouse should be against the SHO concerned

and not against the petitioner/accused, who was justified in making a

complaint to the Police.

20. So far as the summons issued to the complainant/respondent is

concerned, a copy thereof has been placed on record by the

complainant/ respondent along with the complaint. A perusal of the

said summons reveals that Tehsildar, Jammu has sought presence of

the respondent/complainant before him in connection with illegal

demolition of plinth area in a plot by JDA. The summons in no way

shows that the same has been issued on the basis of any complaint

made by the petitioner/accused.

21. Merely because the Tehsildar, Jammu has summoned the

complainant/respondent in connection with some illegal demolition

of plinth area does not mean that the same has been done at the

behest of the petitioner/accused. The allegation made by the

complainant/respondent in this regard appears to be imaginary, as is

clear from the material on record.

22. From the foregoing analysis of the material on record, it is clear that

there was a civil dispute going on between the petitioner and the

respondent, to which, criminal colour is being sought to be given by

him so as to settle scores against the petitioner. Thus, this is a fit case

where this Court should exercise its powers under section 482 Cr.P.C

to prevent the abuse of the process of law and to secure the ends of

justice.

23. Accordingly, the petition is allowed and the impugned complaint and

the proceedings emanating there-from are quashed.

24. Copy of this order be sent to the learned Magistrate for information.

(SANJAY DHAR) JUDGE

Jammu 10.02.2023 Neha