Madhya Pradesh High Court
Rahul Agarwal vs State Of M.P. on 7 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 07th OF MAY, 2024
WRIT PETITION No.15169 of 2023
BETWEEN:-
RAHUL AGARWAL, AGED ABOUT 63 YEARS, S/O SHRI
HAKIKAT RAI AAGRWAL, OCCUPATION BUSINESS, R/O
NAI BASTI KATNI, DISTRICT KATNI (MP)
....PETITIONER
(BY SHRI ASHUTOSH DHARMADHIKARI - ADVOCATE AND SHRI MUKESH
AGRAWAL - ADVOCATE)
AND
1. STATE OF MP THROUGH THE SECRETARY
HOME DEPARTMENT MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MP)
2. THE SUPERINTENDENT OF POLICE KATNI
DISTRICT KATNI (MP)
3. THE THANA IN-CHARGE, THANA KOTWALI,
DISTRICT KATNI (MP)
4. SATISH SARAOGI S/O LATE SHRI OMPRAKASH
SARAOGI, R/O KOTWALI, DISTRICT KATNI (MP)
5. PIYUSH KUMAR SARAOGI S/O SATISH SARAOGI,
AGED ABOUT 24 YEARS, DOB 9/10/1999, HAVING
AADHAAR NO. 753285054111, JOHPS0606Q, R/O
WARD NO. 22, HANUMAN GANJ WARD, GHANTA
GHAR, MURWARA, KATNI, MADHYA PRADESH
483501, POLICE STATION KOTWALI KATNI MOB.
9285313333, EMAIL
[email protected], DIRECTOR
(DIN 08060220) OF MVS LEASING PVT. LTD. (CIN
U65900MP1989PTC0355 (MP)
6. INSPECTOR GENERAL OF REGISTRATION AND
2
SUPERINTENDENT OF STAMPS, MADHYA
PRADESH, HAVING ITS OFFICE AT PANJIYAN
BHAWAN 35-A, ARERA HILLS, BHOPAL (MP)
7. STAMP VENDOR THROUGH THE
SUPERINTENDENT, DISTRICT TREASURY
DISTRICT KATNI, 483501 WHO HAS ALLEGEDLY
SOLD THE STAMP NO. 990139 (MP)
8. RAKESH CHATURVEDI, ADVOCATE/NOTARY
HAVING R.NO. M.P. 25/03/08/BADWARA
(KATNI)/21/(B-2)/2018, R/O TEHSIL BADWARA,
DISTRICT KATNI (MP)
9. SHRI ARUN KUMAR GOEL S/O SHRI BHAGAT
RAM AGARWAL, AGED ABOUT 48 YEARS,
HAVING DOB 14/11/1975, HAVING AADHAAR NO.
8569 1233 0267, HAVING PAN NO. AEQPG3821F, R/O
H.NO. 5, MITRA VIHAR COLONY, NEAR GAYATRI
MANDIR, WARD NO.14, MURWARA, KATNI
MADHYA PRADESH 483501, POLICE STATION
KOTWALI, KATNI, MOB 9826153138, EMAIL
[email protected] (MP)
10. SHRI MOHAN LAL BAJAJ S/O SHRI KUNJI LAL
BAJAJ, AGED ABOUT 62 YEARS, HAVING DOB
24/11/1960, HAVING AADHAAR NO.8695 4056, 6921,
HAVING PAN NO.ADDPB2735K R/O MIG-II 22,
HOUSING BOARD COLONY, MURWARA KATNI
MADHYA PRADESH 483501, POLICE STATION
KOTWALI KATNI, ALSO AT SHOP NO.6
RAJASTHAN BHAWAN, MARKET, HANUMAN
GANJ WARD, KATNI MADHYA PRADESH 483501,
POLICE STATION KOTWAL (MP)
....RESPONDENTS
(RESPONDENTS/STATE BY SHRI PUNIT SHROTI - GOVERNMENT ADVOCATE)
(RESPONDENT NOS.4, 5, 8, 9 AND 10 BY SMT. MANJIT P.S. CHUCKAL -
ADVOCATE)
..................................................................................................................................................
Reserved on : 15.04.2024
Pronounced on : 07.05.2024
..................................................................................................................................................
This petition having been heard and reserved for orders, coming on
3
for pronouncement this day, the Court pronounced the following:
ORDER
With the consent of learned counsel for the parties, the petition is
heard finally.
2. By the instant petition filed under Article 226 of the Constitution of
India, the petitioner has claimed the following relief (s):-
'(7.1) To issue writ in the nature of mandamus, directing the
respondent no.2 & 3 to take suitable action on the
complaints made by the petitioner (Annexure P/2) and,
register criminal case under appropriate offences against the
persons accused therein;
(7.2) To issue writ in the nature of certiorari for quashing of
criminal proceeding, if any, lodged by the respondent no.4
against the petitioner and his family members, to meet the
ends of justice.
(7.3) To direct suitable disciplinary action against the respondent
no.2 & 3 for dereliction in performance of duties casted
upon them as responsible police officers;
(7.3A) Quash and set aside the FIR dated 29/06/2023 filed at
Annexure-P/4 and after quashing and setting aside the same
initiate appropriate action against the respondents for
abusing the process of law and direct the police authorities
to take action against respondent no.4 for lodging a false
complaint against the petitioner and his family members, in
the interest of justice.
(7.4) Any other suitable relief deemed fit in the facts and
circumstances of the case may also kindly be granted
together with the cost of the present case.'
3. Shorn of unnecessary details, the facts of the case which are
requisite to be stated are that the petitioner being an owner of a property
situated at Khasra No.371 of Village Pureni, District Katni, area
admeasuring 0.526 hectare had filed a civil suit for removal of
encroachment made thereon and in turn, vide judgment and decree dated
22.03.2016, he succeeded in the said suit.
(3.1) According to the petitioner, respondent No.4 is a habitual criminal
against whom, the Enforcement Directorate has initiated as many as six
cases under the provisions of the Prevention of Money Laundering Act,
2002. In addition to that, several cases of other nature have also been
registered against respondent No.4 at various police stations. According to
the petitioner, since respondent No.4 was interested in grabbing his land,
therefore, for creating pressure upon the petitioner to sell his land on a
very meagre price, respondent No.4 started threatening the petitioner and
his family members against which, though the petitioner approached the
police authorities by making a complaint against respondent No.4
(Annexure-P/2), but no action thereon has been taken.
(3.2) According to the petitioner, from a newspaper, he came to know
about the fact that respondent No.4 posing himself to be an authorized
representative of M/s MVS Leasing Private Company (in short the
'Company'); which is a non-banking financial organization, registered
office of which situates at Office-20, Chinar Park, Club Town Enclave
Kolkata, West Bengal whereas the branch office situates at Gajanan
Talkies Complex Malviya Ganj Ward Katni, has made a false written
complaint against him, his wife and his son to the police mentioning
therein that in the year 2014, the petitioner for the purpose of his business
had taken a loan amounting to Rs.4 crores from the Company with an
assurance that except the principal amount, he will repay the interest
levied on the said amount, but on account of loss suffered in the business,
since the petitioner was unable to repay the principal so also the interest
amount, therefore, on 29.03.2019, he entered into an agreement to sell
with the Company in respect of his land situates at Khasra No.371, Patwari
Halka No.40 of Village Pureni, District Katni. Respondent No.4 in his
written complaint had also stated that though the petitioner at that time had
apprised that involving the said land, a civil suit is already pending and as
soon as it is adjudicated, he would execute the sale-deed in respect of that
land in favour of the Company, but later on, with an intention to cheat, the
petitioner had not only sold the said land to some other person by a
registered sale-deed dated 28.06.2023 but also apprised respondent No.4
that he would not repay the amount taken on loan and as such, on the said
complaint, an offence vide FIR No.476/2023 got registered against the
petitioner, his wife and his son at Police Station Kotwali, District Katni,
under Sections 420, 406 and 34 of the Indian Penal Code.
(3.3) According to the petitioner, the agreement dated 29.03.2019 is a
fabricated document and it has never been executed by him. According to
the petitioner, the nature of dispute involves this case is otherwise of civil
nature for which respondent No.4, at the most, can avail the remedy by
approaching appropriate forum, but just to create pressure upon him and
his family members, respondent No.4 by misusing the document dated
29.03.2019 had approached the police authorities for lodging a complaint
against them and in turn, the police authorities even without making any
enquiry or recording the statement of petitioner has registered the alleged
offence which is very unfortunate on their part.
4. Refuting the averments made in the petition, the respondents have
filed return mentioning therein that taking into account the contents
available in the written complaint made by respondent No.4 so also the
document i.e. agreement to sell dated 29.03.2019, the police has rightly
registered the offence against the petitioner and his family members in
which nothing is illegal on their part.
5. In rebuttal, the petitioner has filed a rejoinder stating therein that in
the alleged agreement to sell, on behalf of the Company, sign was made by
respondent No.4 namely Satish Sarogi that too on the basis of letter of
authority, however, according to the petitioner, it is a fabricated document
for the reason that in the said document though there is a reference of a
resolution passed by the Board of Directors of the Company, but it is an
ambiguous resolution for the reason that it does not reveal the fact about
the date or the meeting in which the said resolution was passed by the
Board of the Directors of the Company. According to the petitioner, the
resolution of Board of Directors of the Company further indicates that it is
a fabricated document because the same is shown to be attested on
10.04.2019 whereas the agreement to sell is dated 29.03.2019. According
to the petitioner, from the aforesaid document, it is clear that the said
resolution of the Board of Directions of the Company got executed
somewhere between 25.03.2019 to 10.04.2019. According to the
petitioner, the document further reflects that one Piyush Sarogi being an
authorized person has signed this resolution on behalf of the Company at
Kolkata whereas Piyush Sarogi was neither the Director nor Additional
Director of the Company on these two dates i.e. 25.03.2019 and
10.04.2019. The petitioner has further filed a document issued by the
Ministry of Corporate Affairs in its website showing the registered address
of the Company at Gajanan Complex, Malviya Ganj, Katni (MP), but not
at Kolkata. According to the petitioner, Piyush Sarogi was designated as an
Additional Director in the Company only on 05.06.2019 and, therefore, it
has been claimed that the resolution was signed by Piyush Sarogi that too
with no authority. However, several other documents have also been filed
by the petitioner to substantiate that respondent No.4 has fabricated the
documents and, therefore, it is prayed that an enquiry may be directed to
ascertain the correct facts.
6. Reiterating the facts as have already been mentioned in the return,
an additional return has also been filed by the respondents.
7. Learned counsel for the petitioner has submitted that even if the
allegations made in the FIR are considered to be true at their face value,
then it will reflect that the dispute is purely of civil nature and under such
circumstances, the offence registered against the petitioner and his family
members vide FIR No.476/2023 at Police Station Kotwali, District Katni
for the offence under Sections 420, 406 and 34 of the IPC is liable to be
quashed. It is further argued by learned counsel for the petitioner that there
is no element in the complaint made by respondent No.4 in respect of
offence under Sections 420 and 406 of the IPC. In support of his
contention, he has relied upon a case of Supreme Court reported in (2011)
7 SCC 59 [Joseph Salvaraj A. Vs. State of Gujarat], in which, it is held
by the Supreme Court that there is growing tendency to file criminal cases
in relation to civil dispute to create pressure on a litigant with a purpose to
grab immovable property and this growing tendency should be
immediately curbed by the Court by utilizing power provided under
Section 482 of the Code of Criminal Procedure. He has further relied upon
the cases of Supreme Court reported in (2014) 2 SCC 1 [Lalita Kumari
Vs. Government of Uttar Pradesh and others] and also in (2015) 6 SCC
287 [Priyanka Shrivastava and another Vs. State of Uttar Pradesh and
others]. According to learned counsel for the petitioner, the alleged
agreement was said to have been executed on 29.03.2019 whereas the
same was reported to the police on 29.06.2023 that too without explaining
the delay. He has further relied upon the cases reported in (2014) 5 SCC
108 [State of Gujarat Vs. Kishanbhai and others] and (2000) SCC
OnLine P&H 348 [Harbhajan Singh Bajwa Vs. Senior Superintendent
of Police, District Patiala and another].
8. Per contra, learned Government Advocate has submitted that at best
the petitioner should have availed the remedy available to him under
Section 482 of the CrPC for quashing the FIR registered against him and
his family members and as such, according to him, this petition is not
maintainable. It is also stated that if cognizable offence is made out, then
the FIR cannot be said to be illegal. It is further submitted that the criminal
prosecution even in a matter which otherwise indicates the civil dispute, is
permissible as there is no bar for initiating criminal prosecution. In support
of his contention, learned Government Advocate has placed reliance upon
the cases reported in ILR 2023 MP 1137 [Virendra Patel Vs. State of
MP and another] and also in ILR [2021] MP 1292 (DB) [Vishnu and
others Vs. State of MP and others].
9. Learned counsel appearing for respondent Nos. 4, 5, 8, 9 and 10 has
also supported the submissions advanced by learned Government
Advocate and placed reliance upon a case of Supreme Court i.e. Cr.A.
No.335/2024 [Mariam Fasihuddin and another Vs. State By Adugodi
Police Station and another] and also of this Court passed in M.Cr.C.
No.57102/2021 [Kailash Vs. Arjun Singh and others].
10. I have heard the rival submissions of learned counsel for the parties
and perused the record available.
11. Indisputably, on the basis of the contents mentioned in the written
complaint filed by respondent No.4, offence got registered against the
petitioner and his family members, therefore, to examine the same, it
deems necessary to reproduce the contents of the written complaint, which
read as under:-
'izfr
Jheku~ iqfyl v/kh{kd egksn;
dVuh ftyk&dVuh
fo"k;&jkgqy vxzoky vkRet gdhdrjk; vxzoky vk;q yxHkx 60 o"kZ] Jherh e/kqfydk
vxzoky /keZiRuh jkgqy vxzoky vk;q yxHkx 55 o"kZ] ,oa f'koe~ vxzoky vkRet jkgqy
vxzoky vk;q yxHkx 30 o"kZ] lHkh fuoklh ubZ cLrh dVuh ftyk dVuh ds }kjk
/kks[kk/kM+h djus ds vk'k; ls #i;s çkIr dj viuh Hkwfe ds fodz; dk vuqca/k djus ds
ckotwn fdlh vU; O;fä dks foØ; djus ds laca/k esaA
egksn;]
fuosnu gS fd eSa lrh"k ljkoxh vkRet Jh vkseçdk'k ljkoxh vk;q yxHkx 50 o"kZ
fuoklh guqekuxat] ?kaVk?kj dVuh dk fuoklh gwa rFkk ,e oh ,l yhftax çkbZosV fyfeVsM
daiuh jftLVMZ vkfQl&20] fpukj ikdZ] Cykd uacj&1 QysV uacj& 5lh] Dyc Vkmu
,uDyso] dksydkrk if'pe caxky] czkUp vkfQl& xtkuu V‚dht dkEiysDl] ekyoh; xat
okMZ dVuh dk vf/k--r çfrfuf/k gwWa rFkk mä daiuh ds }kjk ikfjr fjtkY;w'ku ds vuqlkj eSa
mä daiuh ds dk;ksaZ dks djus ds fy;s vf/k--r çfrfuf/k gw¡A mä daiuh ,d uku cSafdx
QkbZusfU'k;y daiuh gS tks fd daiuh ,DV ds mica/kksa ds vuqlkj :i;s C;kt ij nsus ds fy;s
vf/k--r gSA jkgqy vxzoky] mldh iRuh e/kqfydk vxzoky ,oa mlds iq= f'koe vxzoky
ds }kjk o"kZ 2014 esa daiuh ls pkj djksM :i;k m?kkj çkIr fd;k Fkk ftldk fooj.k
fuEukuqlkj gS&
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
dzekaad fnukd jkf'k ikus okys dk uke ;w Vh vkj uacj
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
1 29@01@2014 2]00]00]000 jkgqy vxzoky ,,uMhch,p 14029252510
2 29@01@2014 1]00]00]000 e/kqfydk vxzoky ,,uMhch,p 14029252700
3 30@01@2014 1]00]00]000 f'koe vxzoky ,,uMhch,p 14030255820
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
mä jkf'k daiuh ds vkU/kzk cSad 'kk[kk dksydkrk esa fLFkr [kkrk dzekad
007011100002999 ls vkjVhth,l ds tfj;s jkgqy vxzoky] e/kqfydk vxzoky ,oa f'koe
vxzoky rhuks ds ;wfu;u cSad v‚Q bafM;k 'kk[kk dVuh ds [kkrk dzekad de'k%
325802010007349] 325802010008183 ,oa 325802010675710 esa dqy pkj djksM ़़ :i;ksa
dk Hkqxrku fd;k x;k gS rFkk mä jkf'k ds laca/k esa fuEukuqlkj jkf'k crkSj C;kt nh x;h
gS&
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
dekad fnukd jkf'k vnk djus okys dk uke fjQjsUl uacj
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
1 03@01@2014 555616-44 jkgqy vxzoky 007725@;wchvkbZ
2 18@08@2014 401690-00 jkgqy vxzoky 912010024682425
3 18@08@2014 200548-00 e/kqfydk vxzoky 91201002576058
4 18@08@2014 197260-00 f'koe vxzoky ,ubZ,Qvh
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
blds i'pkr mls O;kikj esa uqdlku gksus ds dkj.k og jde o C;kt ugha ns ik
jgk Fkk bl dkj.k mlus viuh xzke iqjSuh iVokjh gYdk uacj 40 jkfuea-&eqMokjk rglhy
o ftyk dVuh ds [kljk uacj 371 esa fLFkr 0-526 gS- Hkwfe daiuh ds lkFk fodz; djus dk
vuqca/k fd;k rFkk m/kkj yh gqbZ ewy jde rFkk C;kt jkf'k dks laiw.kZ çfrQy ds :i esa
çkIr djrs gq, fnukad 29@03@2019 dks fodz; vuqca/k i= rglhy U;k;ky; ifjlj
dVuh esa fu"ikfnr fd;k Fkk ftl ij mlus Lo;a o viuh iRuh e/kqfydk vxzoky ,oa vius
iq= f'koe vxzoky dh vksj ls gLrk{kj fd;s Fks rFkk ml le; ;g Hkh dgk Fkk fd mä
Hkwfe ds laca/k esa U;k;ky; esa dsl py jgk gS tSls gh dsl dk fujkdj.k gksxk og daiuh
ds i{k esa jftLVªh djk nsxkA fdUrq muds eu esa csbZekuh vk tkus ds dkj.k rFkk daiuh dk
:i;k gMi tkus dh fu;r ls muds }kjk mä bdjkj'kqnk Hkwfe ds U;k;ky; esa py jgs
dsl ds fujk--r gksus dh tkudkjh gesa ugha nh rFkk mä Hkwfe dk fodz; fnukad
27@06@2023 dks fdlh vU; O;fä ds i{k esa dj fn;k bl ckr dh eq>s fnukad
28@06@2023 dks tkudkjh çkIr gqbZ rks eSaus jkgqy vxzoky ls laidZ fd;k fdUrq mlus
dksbZ tokc ugha fn;k vkSj dgk fd rqEgsa tks djuk gks dj ysuk] eSaus tehu csp nh gS
vkSj :i;k Hkh ugha nwaxkA
;g fd jkgqy vxzoky vkRet gdhdrjk; vxzoky vk;q yxHkx 60 o"kZ] Jherh
e/kqfydk vxzoky /keZiRuh jkgqy vxzoky vk;q yxHkx 55 o"kZ] ,oa f'koe~ vxzoky vkRet
jkgqy vxzoky vk;q 30 o"kZ }kjk voS/k ykHk çkIr djus ds mís'; ls vekur esa [k;kur
djrs gq;s csbZekuhiw.kZ vk'k; ls vkosnd daiuh dh jde dks gMius ds mís'; ls ;g tkurs
gq;s fd muds }kjk viuh xzke iqjSuh iVokjh gYdk uacj 40 jkfuea-&eqMokjk rglhy o
ftyk dVuh ds [kljk uacj 371 esa fLFkr 0-526 gs- Hkwfe dks fodz; djus dk vuqca/k
vkosnd daiuh ds lkFk fd;k gS blds ckotwn mä Hkwfe dks fdlh vU; O;fä dks fod;
dj ?kks[kk/kMh dh gSA
vr% ekUuh; egksn; ls çkFkZuk gS fd jkgqy vxzoky vkRet gdhdrjk; vxzoky
vk;q yxHkx 60 o"kZ] Jherh e/kqfydk vxzoky /keZiRuh jkgqy vxzoky vk;q yxHkx 55
o"kZ] ,oa f'koe~ vxzoky vkRet jkgqy vxzoky vk;q 30 o"kZ lHkh fuoklh ubZ cLrh dVuh
ftyk dVuh ds fo:) /kkjk 406] 420] 34] Hkk- nfo ds rgr ekeyk iathc) djrs gq;s
nf.Mr fd;s tkus dh --ik djsaA
layXu]
fod; vuqca/k dh Nk;k çfr
fnukad 29&6&23
dVuh
lrh"k ljkoxh vkRet Jh vkseçdk'k ljkoxh
fuoklh guqekuxat] ?kaVk?kj dVuh ftyk& dVuh'
However, on perusal of aforesaid written complaint and allegations
levelled therein, it is clear that in pursuance a loan transcation, an amount
of Rs.4 crores was said to have been disbursed in favour of the petitioner
by the Company, which is to be repaid by the petitioner along with interest
levied over the principal amount. It is further stated in the complaint that
because of loss suffered in the business, since the petitioner was not in a
position to repay the principal and interest amount, therefore, an
agreement to sell of his land got executed by him on 29.03.2019 in favour
of the Company, but thereafter, he sold the said land to some other person
by a registered sale-deed dated 27.06.2023. Under such circumstances, to
recover the amount said to have been disbursed in favour of the petitioner
in the year 2014 that too on a loan sanctioned in his favour so also for
implementing the agreement to sell, the Company had to file a suit within
a period of three years therefrom, but it has not been done and, therefore,
prima facie, for initiating civil litigation, the claim of the Company is
barred by time. Even otherwise, if any agreement to sell got executed by
the petitioner in favour of the Company and instead of the Company, if the
petitioner had sold the said land to some other person, then for setting
aside the said sale-seed, the Company had to file a suit, but that has also
not been done.
12. So far as the offence of Section 420 of the IPC is concerned, it is a
cheating and dishonestly inducing delivery of property which reads as
under:-
'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.'
However, cheating has been defined under Section 415 of the IPC,
which reads 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".'
From the aforesaid provisions, it is clear that the required
ingredients of cheating are; (i) there should be fraudulent or dishonest
inducement of a person by deceiving him, (ii)(a) the person so deceived
should be induced to deliver any property to any person, or to consent that
any person shall retain any property; or (b) the person so deceived should
be intentionally induced to do or omit to do anything which he would not
do or omit if he was not so deceived; and (iii) in cases covered by (ii)(b),
the act of omission should be one which causes or is likely to cause
damage or harm to the person induced in body, mind, reputation or
property as has been observed by the Supreme Court in a case reported in
(2002) 1 SCC 241 [S.W. Palanitkar and others Vs. State of Bihar and
another]. However, in the written complaint made by respondent No.4, it
has not been alleged that from very inception, the intention of the
petitioner was of cheating. When an amount said to have been disbursed in
favour of the petitioner in the year 2014; an agreement to sell said to have
been executed by the petitioner in the year 2019 and till 2023 nothing was
done, then the sale-deed executed by the petitioner in respect of his land,
cannot be considered to be cheating for the reason that the petitioner only
on the basis of alleged agreement to sell, cannot sit silent or make any
transaction in respect of his land. The allegation made in the written
complaint is silent as to what happened after 2019 and as to what type of
litigation is pending in respect of said property and as such, it is clear that
respondent No.4 is giving shape of civil litigation, which is apparently
time barred, into a criminal litigation.
13. The Supreme Court in the case of Joseph Salvaraj A. (supra) has
observed as under:-
'15. Criminal breach of trust is defined under Section 405 IPC and
Section 406 thereof deals with punishment to be awarded to the accused, if
found guilty for commission of the said offence i.e. with imprisonment for a
term which may extend to three years, or with fine, or with both. Section
420 IPC deals with cheating and dishonestly inducing delivery of property.
Cheating has been defined under Section 415 IPC to constitute an offence.
Under the aforesaid section, it is inbuilt that there has to be a dishonest
intention from the very beginning, which is sine qua non to hold the accused
guilty for commission of the said offence. Categorical and microscopic
examination of the FIR certainly does not reflect any such dishonest
intention ab initio on the part of the appellant. Section 506 IPC deals with
punishment for criminal intimidation. Criminal intimidation, insult and
annoyance have been defined in Section 503 IPC but the FIR lodged by the
complainant does not show or reflect that any such threat to cause injury to
person or of property was ever given by the appellant to the complainant.
16. Thus, from the general conspectus of the various sections under
which the appellant is being charged and is to be prosecuted would show
that the same are not made out even prima facie from the complainant's FIR.
Even if the charge-sheet had been filed, the learned Single Judge could have
still examined whether the offences alleged to have been committed by the
appellant were prima facie made out from the complainant's FIR, charge-
sheet, documents, etc. or not.
17. In our opinion, the matter appears to be purely civil in nature.
There appears to be no cheating or a dishonest inducement for the delivery
of property or breach of trust by the appellant. The present FIR is an abuse
of process of law. The purely civil dispute, is sought to be given a colour of
a criminal offence to wreak vengeance against the appellant. It does not
meet the strict standard of proof required to sustain a criminal accusation. In
such type of cases, it is necessary to draw a distinction between civil wrong
and criminal wrong as has been succinctly held by this Court in Devendra v.
State of U.P. [(2009) 7 SCC 495 : (2009) 3 SCC (Cri) 461 : (2009) 3 SCC
(Civ) 190] , relevant part thereof is reproduced hereinbelow: (SCC p. 505,
para 27)
"27. ... A distinction must be made between a civil wrong and a
criminal wrong. When dispute between the parties constitute
only a civil wrong and not a criminal wrong, the courts would
not permit a person to be harassed although no case for taking
cognizance of the offence has been made out."
18. In fact, all these questions have been elaborately discussed by this
Court in the most oftquoted judgment in State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] where seven cardinal
principles have been carved out before cognizance of offences, said to have
been committed by the accused, is taken. The case in hand unfortunately
does not fall in that category where cognizance of the offence could have
been taken by the court, at least after having gone through the FIR, which
discloses only a civil dispute.'
(emphasis supplied)
Likewise, in a case reported in (2009) 7 SCC 495 [Devendra and
others Vs. State of Uttar Pradesh and another], the Supreme Court has
observed as under:-
'11. The fact that the appellants are co-sharers is not in dispute. The
dispute between them is confined to the extent of their respective shares. It
must be determined only in a civil suit. If Appellants 1 and 2 had executed a
deed of sale in favour of a third party stating that they have one-third share
over the entire properties, the same would not be binding on the respondent
complainant. If any cause of action arose by reason of a threat of
dispossession at the hands of the co-sharer or at the hands of the third party,
as was contended, recourse to legal action could always be taken. Even for
that purpose, a proceeding under Sections 144 and 145 of the Code of
Criminal Procedure would be maintainable. The decision of a criminal court
in a case of this nature would not be binding on the civil court.
* * *
24. There is no dispute with regard to the aforementioned
propositions of law. However, it is now well settled that the High Court
ordinarily would exercise its jurisdiction under Section 482 of the Code of
Criminal Procedure if the allegations made in the first information report,
even if given face value and taken to be correct in their entirety, do not make
out any offence. When the allegations made in the first information report or
the evidences collected during investigation do not satisfy the ingredients of
an offence, the superior courts would not encourage harassment of a person
in a criminal court for nothing.
* * *
27. Mr Das submits that a wrong committed on the part of a person
may be a civil wrong or a criminal wrong although an act of omission or
commission on the part of a person may give rise to both civil action and
criminal action. A distinction must be made between a civil wrong and a
criminal wrong. When dispute between the parties constitute only a civil
wrong and not a criminal wrong, the courts would not permit a person to be
harassed although no case for taking cognizance of the offence has been
made out.
28. Furthermore, in a case of this nature where even, according to Mr.
Da, no case has been made out for taking cognizance of an offence under
Section 420 of the Penal Code, it was obligatory on the part of the learned
Chief Judicial Magistrate to apply his mind to the contents of the charge-
sheet. Such application of mind on his part should have been reflected from
the order. (See State of Karnatka v. Pastor P. Raju : (2006) 6 SCC 728 and
Pawan Kumar Sharma v. State of Uttaranchal : Criminal Appeal No.1692 of
2007 decided on 10-12-2007).'
(emphasis supplied)
Similarly, the Supreme Court in a case reported in (2000) 2 SCC
636 [G. Sagar Suri and another Vs. State of U.P. and others], in which,
in a petition filed under Section 482 of the CrPC seeking quashing of
offence registered against the appellants under Section 406/420 of IPC that
too at the instance of Finance Company for recovering the loan granted to
the appellants, the Supreme Court has observed that the jurisdiction of
Section 482 of the CrPC has to be exercised to meet the ends of justice
that too with a great care. In the said case, the Supreme Court has observed
as under:-
'14. We agree with the submission of the appellants that the whole
attempt of the complainant is evidently to rope in all the members of the
family particularly those who are the parents of the Managing Director of
Ganga Automobiles Ltd. in the instant criminal case without regard to their
role or participation in the alleged offences with the sole purpose of getting
the loan due to the Finance Company by browbeating and tyrannising the
appellants with criminal prosecution. A criminal complaint under Section
138 of the Negotiable Instruments Act is already pending against the
appellants and other accused. They would suffer the consequences if offence
under Section 138 is proved against them. In any case there is no occasion
for the complainant to prosecute the appellants under Sections 406/420 IPC
and in his doing so it is clearly an abuse of the process of law and
prosecution against the appellants for those offences is liable to be quashed,
which we do.
15. The appeal is allowed and the judgment of the High Court dated
6-5-1999 is set aside and prosecution of the appellants under Sections
406/420 IPC in Criminal Case No. 674 of 1997 (now Criminal Case No.
6054 of 1998) and pending in the Court of Chief Judicial Magistrate,
Ghaziabad is quashed.'
Furthermore, in a case reported in (2022) 7 SCC 124 [Vijay Kumar
Ghai and others Vs. State of West Bengal and others], the Supreme
Court has observed as under:-
'38. There can be no doubt that a mere breach of contract is not in
itself a criminal offence and gives rise to the civil liability of damages.
However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of
Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 :
2000 SCC (Cri) 786] , the distinction between mere breach of contract and
cheating, which is criminal offence, is a fine one. While breach of contract
cannot give rise to criminal prosecution for cheating, fraudulent or dishonest
intention is the basis of the offence of cheating. In the case at hand,
complaint filed by Respondent 2 does not disclose dishonest or fraudulent
intention of the appellants.
39. In Vesa Holdings (P) Ltd. v. State of Kerala [Vesa Holdings (P)
Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498] , this
Court made the following observation : (SCC pp. 297-98, para 13)
"13. It is true that a given set of facts may make out a civil
wrong as also a criminal offence and only because a civil remedy
may be available to the complainant that itself cannot be ground to
quash a criminal proceeding. The real test is whether the allegations
in the complaint disclose the criminal offence of cheating or not. In
the present case, there is nothing to show that at the very inception
there was any intention on behalf of the accused persons to cheat
which is a condition precedent for an offence under Section 420IPC.
In our view, the complaint does not disclose any criminal offence at
all. Criminal proceedings should not be encouraged when it is found
to be mala fide or otherwise an abuse of the process of the court. The
superior courts while exercising this power should also strive to serve
the ends of justice. In our opinion, in view of these facts allowing the
police investigation to continue would amount to an abuse of the
process of the court and the High Court committed [Maniprasad v.
State of Kerala, 2011 SCC OnLine Ker 4251] an error in refusing to
exercise the power under Section 482CrPC to quash the
proceedings."
40. Having gone through the complaint/FIR and even the charge-
sheet, it cannot be said that the averments in the FIR and the allegations in
the complaint against the appellant constitute an offence under Sections 405
and 420IPC, 1860. Even in a case where allegations are made in regard to
failure on the part of the accused to keep his promise, in the absence of a
culpable intention at the time of making promise being absent, no offence
under Section 420IPC can be said to have been made out. In the instant case,
there is no material to indicate that the appellants had any mala fide
intention against the respondent which is clearly deductible from the MoU
dated 20-8-2009 arrived at between the parties.
* * *
47. The order of the High Court is seriously flawed due to the fact
that in its interim order dated 24-3-2017 [Priknit Retails Ltd. v. State of
W.B., 2017 SCC OnLine Cal 21484], it was observed that the contentions
put forth by the appellant vis-à-vis two complaints being filed on the same
cause of action at different places but the impugned order overlooks the said
aspect and there was no finding on that issue. At the same time, in order to
attract the ingredients of Sections 406 and 420IPC it is imperative on the
part of the complainant to prima facie establish that there was an intention
on part of the petitioner and/or others to cheat and/or to defraud the
complainant right from the inception. Furthermore it has to be prima facie
established that due to such alleged act of cheating the complainant
(Respondent 2 herein) had suffered a wrongful loss and the same had
resulted in wrongful gain for the accused (the appellant herein). In the
absence of these elements, no proceeding is permissible in the eye of the law
with regard to the commission of the offence punishable under Section
420IPC. It is apparent that the complaint was lodged at a very belated stage
(as the entire transaction took place from January 2008 to August 2009, yet
the complaint has been filed in March 2013 i.e. after a delay of almost 4
years) with the objective of causing harassment to the petitioner and is
bereft of any truth whatsoever.'
(emphasis supplied)
Moreover, in a case reported in (2006) 6 SCC 736 [Indian Oil
Corpn. Vs. NEPC India Ltd. and others], the Supreme Court has
observed as under:-
'13. While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent impression that civil law
remedies are time consuming and do not adequately protect the interests of
lenders/creditors. Such a tendency is seen in several family disputes also,
leading to irretrievable breakdown of marriages/families. There is also an
impression that if a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent settlement. Any effort to settle
civil disputes and claims, which do not involve any criminal offence, by
applying pressure through criminal prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000
SCC (Cri) 513] this Court observed: (SCC p. 643, para 8)
"It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies available in law.
Before issuing process a criminal court has to exercise a great deal
of caution. For the accused it is a serious matter. This Court has laid
certain principles on the basis of which the High Court is to exercise
its jurisdiction under Section 482 of the Code. Jurisdiction under this
section has to be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be
prevented from seeking remedies available in criminal law, a complainant
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 CrPC more
frequently, where they discern malice or frivolousness or ulterior motives on
the part of the complainant. Be that as it may.
* * *
31. We accordingly hold that the basic and very first ingredient of
criminal breach of trust, that is, entrustment, is missing and therefore, even
if all the allegations in the complaint are taken at their face value as true, no
case of "criminal breach of trust" as defined under Section 405 IPC can be
made out against NEPC India.
Section 415
32. The essential ingredients of the offence of "cheating" are: (i)
deception of a person either by making a false or misleading representation
or by other action or omission, (ii) fraudulent or dishonest inducement of
that person to either deliver any property or to consent to the retention
thereof by any person or to intentionally induce that person 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.
33. The High Court has held that mere breach of contractual terms
would not amount to cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction and in the absence of an
allegation that the accused had a fraudulent or dishonest intention while
making a promise, there is no "cheating". The High Court has relied on
several decisions of this Court wherein this Court has held that dishonest
intent at the time of making the promise/inducement is necessary, in addition
to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to
Section 415 make this position clear:
"(f) A intentionally deceives Z into a belief that A means to
repay any money that Z may lend to him and thereby dishonestly
induces Z to lend him money, A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to
deliver to Z a certain quantity of indigo plant which he does not
intend to deliver, and thereby dishonestly induces Z to advance
money upon the faith of such delivery, A cheats; but if A, at the time
of obtaining the money, intends to deliver the indigo plant, and
afterwards breaks his contract and does not deliver it, he does not
cheat, but is liable only to a civil action for breach of contract."'
(emphasis supplied)
14. In view of the above legal position, it is clear that the alleged
transaction between the parties was purely of civil nature even though it is
alleged that there was breach of contract. However, if the allegations made
by respondent No.4 against the petitioner are considered to be true at their
face value, even though, it is not clear that from very inception, the
intention of the petitioner was to cheat the Company. Although, the
petitioner has disputed the alleged agreement to sell which in fact was the
foundation of lodging the FIR, but this Court is not inclined to enter into
the said arena and determine the sanctity of that agreement. Even
otherwise, if the agreement to sell alleged to have been executed by the
petitioner in favour of the Company and its terms have been violated by
the petitioner, then the aggrieved party seeking implementation of the
same or for claiming damages, should have filed a civil suit, but that has
also not been done.
15. Insofar as the case of Virendra Patel (supra) on which learned
Government Advocate has placed reliance is concerned, in the said case,
the Court has observed that exercising the jurisdiction under Article 226 of
the Constitution of India for quashing the FIR, a criminal prosecution
cannot be quashed merely on the ground that civil proceeding is pending.
In addition, the Court has further observed that if the same set of facts may
give rise to civil as well as criminal proceeding, then both can be initiated
by the parties, but here in this case, considering the scope of allegations
levelled and also the contents of FIR, since the required ingredients of
cheating are missing, therefore, no alleged offence can be said to be made
out against the petitioner and even under such circumstances, the alleged
breach of contract, which is purely of civil nature cannot be given the
colour of criminal prosecution.
16. However, in the case of Mariam Fasihuddin (supra), though the
Supreme Court has quashed the criminal proceeding initiated against the
accused persons, but so far as cheating is concerned, the Supreme Court
considering the material ingredients of cheating has observed as under:-
'10. Section 420 IPC provides that 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 valuable security, or
anything, which is signed or sealed, and which is capable of being converted
into a valuable security, shall be liable to be punished for a term which may
extend to seven years and shall also be liable to fine. Further, Section 415
IPC distinctly defines the term 'cheating'. The provision elucidates that an
act marked by fraudulent or dishonest intentions will be categorised as
'cheating' if it is intended to induce the person so deceived to deliver any
property to any person, or to consent that any person shall retain any
property, causing damage or harm to that person.
11. It is thus paramount that in order to attract the provisions of Section
420 IPC, the prosecution has to not only prove that the accused has cheated
someone but also that by doing so, he has dishonestly induced the person
who is cheated to deliver property. There are, thus, three components of this
offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly
inducing that person to deliver any property to any person, and (iii) mens
rea or dishonest intention of the accused at the time of making the
inducement. There is no gainsaid that for the offence of cheating,
fraudulent and dishonest intention must exist from the inception when the
promise or representation was made.
12. It is well known that every deceitful act is not unlawful, just as not every
unlawful act is deceitful. Some acts may be termed both as unlawful as well
as deceitful, and such acts alone will fall within the purview of Section 420
IPC. It must also be understood that a statement of fact is deemed
'deceitful' when it is false, and is knowingly or recklessly made with
the intent that it shall be acted upon by another person, resulting in damage
or loss.'Cheating' therefore, generally involves a preceding deceitful act
that dishonestly induces a person to deliver any property or any part of a
valuable security, prompting the induced person to undertake the said act,
which they would not have done but for the inducement.'
(emphasis supplied)
Even from the aforesaid observation of the Supreme Court, it is also
clear that the Supreme Court is very specific in respect of offence of
cheating that fraudulent and dishonest intention must exist from very
inception when any promise or representation was made.
17. Here in this case, as has been discussed in the preceding paragraphs
that if the contents of FIR are seen, then it will be clear that no such
fraudulent intention was there in the mind of the petitioner at the time of
executing the alleged agreement, but on the contrary, if the allegations
levelled in the complaint are considered to be true, even then, it can be
gathered that the fraudulent intention came in the mind of the petitioner
after executing the agreement and it can be ascertained from the relevant
portion of the FIR, which reads as under:-
'.... fdUrq muds eu esa csbZekuh vk tkus ds dkj.k rFkk daiuh dk :i;k gMi tkus
dh fu;r ls muds }kjk mDr bdjkj'kqnk Hkwfe ds U;k;ky; esa py jgs dsl ds
fujkd`r gksus dh tkudkjh gesa ugha nh rFkk mDr Hkwfe dk foØ; fnukad
27@06@2023 dks fdlh vU; O;fDr ds i{k esa dj fn;kA....'
In view of the above, I am of the opinion that in the present case, the
contents of FIR do not constitute any offence of cheating against the
petitioner and his family members and as such, no case of criminal
prosecution is made out against them and, therefore, in view of the
aforesaid legal position, I am also of the opinion that exercising the power
provided under Article 226 of the Constitution of India, the FIR lodged
against the petitioner and his family members can be quashed.
18. Ex consequentia, I allow this petition quashing the offence
registered against the petitioner and his family members vide FIR
No.476/2023 at Police Station Kotwali, District Katni, for the offence
under Sections 420, 406 and 34 of the IPC. Needless to say that further
proceedings based upon the said FIR shall also stand quashed.
19. So far as the relief claimed by the petitioner in the instant petition in
respect of registering an offence against the accused persons pursuant to
the complaint made by him is concerned, the said relief cannot be granted
in this petition. However, the petitioner is at liberty to pursue his complaint
by availing appropriate remedy for taking action against the accused
persons for fabricating the documents and for committing forgery with
him.
20. With the aforesaid, the petition stands allowed. No costs.
(SANJAY DWIVEDI)
JUDGE
dm
DEVASH
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH, ou=HIGH
COURT OF MADHYA PRADESH,
2.5.4.20=db02acf8752ec7d40d9c
ISH
7b2706998aa1774d10503fedd8b
615ae6aa42b0742c1,
postalCode=482001, st=Madhya
Pradesh,
MISHRA
serialNumber=BEDBFB3F19D3D
59DD8321BCADFBB1022C2BA33
5355DDF542C665C4209BF8F691
, cn=DEVASHISH MISHRA
Date: 2024.05.08 10:49:35 +05'30'
