Jammu & Kashmir High Court
Rajendra Mishra vs Ut Of Jammu And Kashmir Through on 27 February, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 845/2023
Reserved on 14.02.2024.
Pronounced on : 27.02.2024
1.Rajendra Mishra
2. Jitender Mishra both sons of Madan
Mohan Mishra resident of House No. 2/50-
A Shastri Nagar Jammu
..........Petitioner(s)
Through :- Mr. Rahul Pant, Sr. Advocate with
Ms Arushi Shukla Advocate.
V/s
1 UT of Jammu and Kashmir through
Additional Chief Secretary J&K Home
Department, Civil Secretariat, Jammu
2 I/C Police Station Samba
3. Surinder Mishra son of Dev Raj Mishra
resident of Ward No. 8 Samba
.......Respondent(s)
Through :- Mr. Vishal Bharti Dy.AG for
R-1&2
Ms. Pooja Pandit Advocate vice
Mr. B.S.Manhas Advocate for R-
3.
Coram:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1 Through the medium of the instant petition, the petitioners seek
quashment of final report/charge-sheet No. 56/2020 dated 12.05.2020,
pending disposal before the Court of Judicial Magistrate First Class (Special
Mobile Magistrate), Samba on the ground that continuance of the trial would
amount to abuse of the process of law as the offences for which petitioners
are being tried before the Trial Court are not made out from the charge-sheet
or from the impugned FIR. It is submitted that a civil dispute is given a
colour of criminal proceedings.
2 It appears that the impugned FIR was registered with the Police
Station, Samba on a complaint which was forwarded by the Chief Judicial
Magistrate, Samba.
3 To understand the controversy, it would be appropriate to have
a brief resume of the facts which is stated hereinbelow:
Respondent No.3 filed a complaint before the learned CJM, Samba
alleging therein that the petitioners had misled and influenced the
concerned Executive Officer of Municipal Committee Samba to
get site plan approved in favour of the petitioners and that land
underneath 8.7 marlas does not belong to the share of father of the
petitioners and father of the petitioners as also the petitioners were
trying to encroach upon his land. On the said complaint, the
learned CJM, Samba directed registration of case against the
petitioners. The impugned FIR had been challenged before this
Court by filing CRMC No. 491/2016 and this Court vide order
dated 17.05.2019 while disposing of the said petition, directed the
investigating agency to produce the challan before the concerned
Court.
4 The petitioner invokes exercise of inherent power by this Court
under Section 482 of the Code of Criminal Procedure and prays for quashing
impugned F.I.R. registered on the basis of the aforesaid complaint of
respondent No.3. The petitioners submit that the impugned F.I.R. does not
disclose any offence; that it is a purely civil dispute and the same has been
converted into a criminal dispute. It is submitted that dispute between the
parties being civil in nature, the registration of F.I.R. on the complaint of the
respondent No.3 is an abuse of the process of law with a view to pressurize
and intimidate the petitioners.
5. The respondent No. 3 has filed objections in which he submits
that the F.I.R. in question discloses a cognizable offence. According to him,
all the ingredients of the offence of cheating are made out and, as such, there
are no grounds for quashing the F.I.R. as prayed.
6. I have heard learned counsel for the parties and perused the
material on record.
7. The law is well-settled that the jurisdiction to quash a
complaint, F.I.R. or a charge-sheet should be exercised sparingly and only in
exceptional cases and Courts should not ordinarily interfere with the
investigation of cognizable offences. However, the law is equally settled that
where the allegations made in the F.I.R. or the complaint, even if taken at
their face value and accepted in their entirety, do not prima facie constitute
any offence or make out a case against the accused, the F.I.R. or complaint
may be quashed in exercise of powers under Article 226 or inherent powers
under Section 482 of the Code of Criminal Procedure. In a leading case of
State of Haryana v. Bhajan Lal and others reported in 1992 Supp. (1) SCC
335, certain guidelines were issued for exercise of these powers by the
Courts. In guideline number 3, it was laid down that where the
uncontroverted allegations made in the F.I.R. or complaint and the evidence
collected in support of the same do not disclose commission of any offence
and do not make out a case against the accused, the Court may quash the
F.I.R. as well as the investigations. A note of caution was added by
observing that the power of quashing a criminal proceeding should be
exercised sparingly and with circumspection and that too in the rarest of rare
cases. It was held that the Court would not be justified in embarking upon an
inquiry as to the reliability or genuineness or otherwise of the allegations
made in the F.I.R. or the complaint.
8. In the case of U. Dhar and others v State of Jharkhand and
others reported in AIR 2003 SC 974, the Apex Court while considering a
prayer for quashing an order of Chief Judicial Magistrate taking cognizance
of an offence against the appellants held that the dispute between the parties
was a purely civil dispute regarding payment of money and since basic
ingredients of the offence were not satisfied, the order taking cognizance of
the offence and issuance of summons to the accused was wholly uncalled for
and liable to be quashed.
9 Many times a wrong gives rise to a civil as well as criminal cause of
action and in certain cases both the remedies can be simultaneously invoked
by an aggrieved person. In every criminal action for cheating or breach of
trust, the aggrieved person has a right to invoke civil remedy also but reverse
is not true for the reason that on every civil action a criminal offence is not
made out. As such the High Court would not have any justification to quash
an F.I.R. or a complaint merely on the ground that the dispute gives rise to a
civil action also. However, where the wrong appears to be purely civil and
the F.I.R. or the complaint does not disclose the commission of any offence
and it appears that the F.I.R. or criminal complaint has been filed only with a
view to pressurise or intimidate the opposite party, the High Court would be
failing in its duty if it does not quash such an F.I.R. or complaint and leave
the parties to have recourse to a civil remedy alone.
10 Now the question arises as to whether the complaint on the basis of
which impugned FIR has been registered and charge-sheet has been filed
discloses the commission of cognizable offences. The offences for which the
FIR was registered and petitioners are being tried are offences punishable
under Sections 120-B/182/420/506 RPC.
11 The offence of cheating punishable under Section 420 RPC
is defined under Section 415 RPC. For ready reference and convenience
Section 415 and 420 RPC are reproduced as under:
"415. Cheating:
Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property, is said to "cheat".
420. Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person or to make, alter or
destroy the whole or any part of a valuable security, or anything
which is signed or sealed, and which is capable of being converted
into a valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven years, and
shall also be liable to fine."
12. Section 420 of RPC as alleged against the petitioners is taken up first
for consideration as below:
13 The offence under Section 420 of RPC is divided into two
principal ingredients. The first being the act of cheating thereby dishonestly
inducing a person and second is that the person so cheated and deceived is
impelled to deliver any property or to make, alter or destroy the whole or
any part of a valuable security, or anything which is signed or sealed, and
which is capable of being converted into a valuable security. Thus, the twin
ingredients of the act of cheating and thereby inducing the person so cheated
to delivery property, valuable security or anything which is signed or sealed
or destroying wholly or partly any valuable security to his/her disadvantage,
should co-exist to constitute cheating. Moreso, cheating which is defined
under Section 415 RPC is further divided into two main ingredients. First is
the act of deceiving any person or fraudulently/dishonestly inducing any
person so deceived and the second being that such deceived person is
impelled to deliver any property to any person or retain any property or to
omit to do anything which he would not do or omit if he was not so
deceived, which act or omission causes or is likely to cause damage or harm
to that person in body, mind, reputation or property.
14 Parameters and extent of concept of cheating under Section
415 and 420 of RPC have been elaborately discussed by the Apex Court in
Devendra and others v. State of Uttar Pradesh and another, (2009) 7 SCC
495. For ready reference and convenience, relevant portion of which is
reproduced below:-
"14. It was, however, submitted that by reason of execution of a
deed of sale claiming title over the property to which the appellants
were not entitled to, the complainant - respondent had been
cheated. It is difficult to accept the said contention. The appellants
had not made any representation to the respondent No.2. No
contract and/ or transaction had been entered into by and between
the complainant and the appellants.
15. "Cheating" has been defined in Section 415 of the Penal Code
to mean:
"415. Cheating-- Whoever, by deceiving any person, fraudulently
or dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall retain
any property, or intentionally induces the person so deceived to do
or omit to do anything which he would not do or omit if he were
not so deceived, and which act or omission causes or is likely to
cause damage or harm to that person in body, mind, reputation or
property, is said to 'cheat'."
15 In V. Y. Jose v. State of Gujarat and another, (2009) 3 SCC
78, the Apex Court opined:
"14. An offence of cheating cannot be said to have been made
out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or
misleading representation or by other action or
omission;
(ii) fraudulently or dishonestly inducing any person to
deliver any property; or to consent that any person shall
retain any property and finally intentionally inducing
that person to do or omit to do anything which he would
not do or omit.
16 For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation. Even in a case
where allegations are made in regard to failure on the part of the accused to
keep his promise, in absence of a culpable intention at the time of making
initial promise being absent, no offence under Section 420 of the Code can
be said to have been made out. It is, therefore, evident that a
misrepresentation from the very beginning is a sine qua non for constitution
of an offence of cheating, although in some cases, an intention to cheat may
develop at a later stage of formation of the contract
17 At this stage, we are only concerned with the question whether
the averments in the complaint taken at their face value make out the
ingredients of criminal offence or not.
18 The Supreme Court has held that criminal proceedings could be
quashed in exercise of inherent powers under Section 482 Cr.P.C. when it is
found that dispute was given a cloak of criminal offence in the issue which
was essentially of civil nature and was used as a weapon of harassment.
[See: Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673; and
Usha Chakraborty and another v. State of West Bengal and another, 2023
SCC Online SC 90].
19. In the present case, looking at the allegations in the complaint
on the face of it, we find that, there are no allegations as to cheating or the
dishonest intention of the petitioners. A scrutiny of the F.I.R. in question
clearly shows that the same has been lodged by respondent No. 3 only with a
view to harass, pressurize and intimidate the petitioners knowing fully well
that the dispute between them is purely civil in nature.
20. Even if, all the allegations in the complaint taken at the face
value are true, in my view, the basic essential ingredients of dishonest
misappropriation and cheating are missing. Criminal proceedings are not a
shortcut for other remedies. Since no case of criminal breach of trust or
dishonest intention of inducement is made out and the essential ingredients
of Section 415, 420 IPC are missing, the prosecution of the petitioners under
Sections120 B/182/420/506 is liable to be quashed.
21. Accordingly, in exercise of inherent powers under Section 482
of Cr.P.C., the charge-sheet arising out of FIR No. 206/2010 registered at
P.S. Samba as well as impugned FIR stand quashed.
22. The petitions stand disposed of.
(VINOD CHATTERJI KOUL)
JUDGE
Jammu
27.02.2024
Sanjeev, Secy
Whether order is reportable:Yes/No
