Pradeep Kumar Son Of Shri Dharam ... vs State Of Rajasthan
2022 Latest Caselaw 3904 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR


      S.B. Criminal Miscellaneous (Petition) No. 1635/2022

1.    Pradeep Kumar Son Of Shri                      Dharam    Chand,    R/o
      Gulabpura, Bhilwara Rajasthan
2.    Basant Kanwar W/o Dharimchand, R/o Kekri, District
      Ajmer Rajasthan
3.    Vinay Kumar S/o Shri Dharimchand, R/o Kekri, District
      Ajmer Rajasthan
4.    Sajjan Kumar Son Of Shri Dharimchand, R/o Kekri,
      District Ajmer Rajasthan
5.    Ashok Kumar Son Of Shri Dharimchand, R/o Kekri,
      District Ajmer Rajasthan
6.    Monika D/o Shri Dharimchand, R/o Kekri, District Ajmer
      Rajasthan
7.    Arpita D/o Shri Dharimchand, R/o Kekri, District Ajmer
      Rajasthan
8.    Subham Son Of Shri Dharimchand, R/o Kekri, District
      Ajmer Rajasthan
9.    Sushila Kumari D/o Shri Vimal, R/o Kekri, District Ajmer
      Rajasthan
10.   Rekha Kumari D/o Shri Vimal, R/o Kekri, District Ajmer
      Rajasthan
11.   Abha D/o Shri Vimal, R/o Kekri, District Ajmer Rajasthan
12.   Rakesh Kumar Son Of Sambhu Singh, R/o Kekri, District
      Ajmer Rajasthan
13.   Paras Kumar @ Piru Kumar Son Of Sambhu Singh, R/o
      Kekri, District Ajmer Rajasthan
14.   Asha D/o Sambhu Singh, R/o Kekri, District Ajmer
      Rajasthan
15.   Laxmi Sethiya D/o Sambhu Singh, R/o Kekri, District
      Ajmer Rajasthan
16.   Rajni W/o Selender Singh, R/o Kekri, District Ajmer
      Rajasthan
17.   Ramakant Son Of Kailash Chand Chowkdiwal, R/o Kekri,
      District Ajmer Rajasthan
18.   Satyeder Sharma Son Of Kailash Chand Sharma, R/o
      Kekri, District Ajmer Rajasthan
                                                              ----Petitioners
                                 Versus
1.    State Of Rajasthan, Through Public Prosecutor.
2.    Kamal Son Of Milap Chand, R/o Juwadiya Mohalla, Kekri,


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             District Ajmer Rajasthan
                                                                      ----Respondents

      For Petitioner(s)        :     Mr. Rajneesh Gupta
                                     Mr. Nishant Sharma
                                     Ms. Shashi Bala Jain
      For State                :     Mr. Prashant Sharma, PP
      For Respondent(s)              Mr. HV Nandwana
                                     Mr. Yash Vardhan Nandwana


                 HON'BLE MR. JUSTICE BIRENDRA KUMAR
                                          Order
      Reserved on                          :                  12/05/2022
      Date of Pronouncement                  :                18/05/2022
REPORTABLE

      1.   The   petitioners    have       sought       for     quashement     of   FIR

No.0034/2022 registered under Sections 420, 467, 468, 471 and

120-B IPC on the grounds that:

"(1) to settle a civil dispute, respondent No.2 has opted for a criminal proceeding which is not permissible in law;

(2) the ingredients of none of the offences for which FIR was registered are made out, hence the criminal prosecution would be abuse of the process of the Court."

2. The background of this case is that respondent No.2 entered

into separate agreements with the petitioners from 31.3.2013

onwards to purchase their individual share in plot No. 5089, 5096,

5097, 5098 and 5103. In each of the agreements, it is specifically

mentioned that for the plots above, a case is pending before the

Rajasthan High Court, Bench Jaipur, the petitioners would get the

said case disposed of and thereafter get their respective names

mutated in the revenue records and then sent a notice of these

developments through registered post to respondent No.2. On

receipt of notice from the petitioners, respondent No.2 would

(3 of 7) [CRLMP-1635/2022]

make payment of the remaining consideration money within six

months and get the sale deed registered. If the petitioners would

not abide by the terms and conditions between the parties,

respondent No.2 would have a right to get the sale deed

registered by order of the Court. If the respondent No.2 would fail

to get the documents registered within six months aforesaid, the

petitioners would have a right to utilise the earnest consideration

money and the agreement would be deemed to have been

cancelled automatically. Copy of the agreements are on the

record.

3. The petitioners sent registered legal notice to respondent

No.2 from 12.7.2016 onwards separately stating therein that SB

Civil Writ Petition No. 5425/1999 pending before the Rajasthan

High Court, Bench Jaipur against the order of Board of Revenue

has already been decided on 11.4.2012 which is known to

respondent No.2 Kamal. Thereafter, mutation case No. 2993 dated

24.12.2013 and other mutation cases were registered which is

also known to the complainant. The petitioners asked the

complainant to make payment of the remaining consideration

money and get the registered sale deeds otherwise the agreement

would be deemed to be cancelled. The complainant did not send

any reply to those legal notices, thereafter it is stated that the

petitioners sold a portion of the land to some other person. For

that the complainant got FIR No. 36/2019 registered on 16.1.2019

with Kekri Police Station. The police after investigation of the case

submitted negative report and the case is pending for hearing on

protest petition of the complainant. Later on, the petitioners sold

other portions of the land which was subject matter of agreement

to some other person then the present FIR was lodged.

(4 of 7) [CRLMP-1635/2022]

4. According to the First Information Report, the complainant

had entered into agreement to purchase the referred plots with

the petitioners and the part consideration money was paid and it

was decided that the petitioners would get their names recorded

in the revenue records and thereafter sent a notice of the same to

the complainant and the complainant would within six months got

the sale deed executed after paying the remaining consideration

money. It is specifically mentioned in FIR as to in which mutation

case, who of the petitioners was recorded with respect to which

number of the plot. The allegation is that one sister and the

mother of some of the petitioners were co-sharers, were not

mutated in the process of mutation of names of the petitioners on

the aforesaid plots. Fraudulent intention was there of the

petitioners in not getting the name of the petitioners' sister and

mother recorded. Allegation is that petitioners misappropriated

the part consideration money paid to them and they have sold the

land to some other person just to defraud the complainant.

5. On the basis of the background aforesaid and averments in

the FIR, learned counsel for the petitioners submits that in fact,

the matter in dispute is performance/non-performance of the

agreement to sale between the parties and responsibility of the

party to not act as per agreement and the whole issue can be

decided only by a competent civil court and not by a criminal

court. The ingredients of offences are not made out as at no point

of time, the petitioners had any dishonest intention i.e. at the

inception of the agreement or at any stage subsequent thereto

which would be evident from the facts narrated. Learned counsel

next contends that this is the second FIR for the same cause of

action which is not permissible in law. Reliance has been placed

(5 of 7) [CRLMP-1635/2022]

on T.T. Antony Vs. State of Kerala & ors., (2001) 6 SCC 181;

Murarali Lal Gupta Vs. Gopi Singh (2006) 2 WLC (SC) Cr. 96

and Mohammed Ibrahim & ors. Vs. State of Bihar & Anr.,

reported in (2009) 8 SCC 751.

6. To the contrary, learned counsel for the complainant

respondent contends that one of the petitioner Pradeep Kumar for

the first time filed petition on 18.9.2018 before Sub Divisional

Officer, Kekri informing that the sister is also a legal heir and party

to the proceedings before the Board of Revenue, however due to

mistake her name was left in the decree therefore she also be

included in the decree dated 18.11.2013 and decree be corrected

accordingly. Therefore, execution of the agreement on the part of

respondent No. 2 was delayed due to laches on the part of

petitioners. In fact on 5.11.2018, an exercise of mutation of

names of the petitioners was completed but the petitioners sold

the land for ulterior motive to defraud the complainant.

7. Learned counsel has relied on the judgment of Neeharika

Infrastructure Pvt. Ltd. Vs. State of Maharashtra & ors.,

reported in 2021 SCC OnLine SC 315 for his submission that it

has been settled by the Hon'ble Supreme Court after considering

catena of decisions rendered earlier that the High Court while

exercising jurisdiction under Section 482 Cr.P.C are required to be

more cautious as the jurisdiction is more onerous and more

diligent duty is cast on the courts. The FIR disclosing cognizable

offence should not be quashed at the threshold unless rarest of

rare case is made out. Learned counsel has relied on Chirag M.

Pathak & ors. Vs. Dollyben Kantilal Patel & ors., (2018) 1

SCC 330 for his contention that while considering quashing of one

of the two identical FIRs, the Court cannot embark on a detail

(6 of 7) [CRLMP-1635/2022]

examination of the facts contained in the FIR by acting as an

appellate Court.

8. After hearing the learned counsel for the parties and

considering the material on record, this Court is of the prima facie

view that real dispute between the parties is of civil nature which

cannot be adjudicated by a criminal court, hence the attempt of

the complainant to get the civil dispute resolved by resorting to

invoking jurisdiction of a criminal court amounts to abuse of the

process of the Court. In Murari Lal Gupta's case (supra), identical

issue was there before the Court as to whether the facts of breach

of an agreement to sell property makes out a case of fraudulent

intention. Like, Murari Lal's case (supra), it is not the case of the

respondent herein that the petitioners do not have the property or

the petitioners were not competent to enter into an agreement to

sale the said property or could not have transferred the title to the

respondent. Merely because the petitioners failed to honour the

agreement, it cannot be said that the petitioners had cheated to

the respondent. Moreover, it was known to the complainant, the

intervening circumstances of pendency of writ petition before the

High Court for deciding revenue claim of the same property and

pendency of the mutation matter. The complainant was aware of

the legal notices sent to him by the petitioners through registered

post disclosing details of the developments of the pending matter

but respondent No.2 did not choose to send a reply and kept mum

till petitioners sold some of the property which was subject matter

of agreement to some other person after expiry of period of six

months as agreed in the agreement. Therefore, no ingredient of

offence alleged under Section 420 IPC is made out. There is no

case of the prosecution that any document was forged by the

(7 of 7) [CRLMP-1635/2022]

petitioner. Forgery is defined under Section 463 IPC which

includes making of false document as defined under Section 464

IPC and use of that forged document punishable under Section

471 IPC. There is no averment at all that the petitioners were

involved in making any false document or used the said forged

document as genuine document. Therefore, offence under

Sections 468, 469, 471 and 120-B IPC are also not made out. The

complainant had separately entered into an agreement with all the

petitioners knowing the fact well that the petitioners have

transferable right in the property, the legal notices sent by the

petitioners separately through registered post to the complainant

shows that they were always willing and ready to perform their

part of the agreement. Thus, totality of the material available on

record discloses the ingredients of none of offences for which the

FIR was registered, therefore, the FIR is not sustainable, for this

reason also.

9. Cases relied by the respondents are not applicable in the

facts and circumstances of this case where civil dispute has been

attempted to be decided by a criminal court without making out a

case of cognizable offence.

10. Accordingly, the FIR No. 0034/2022 registered at Police

Station Kekri City District Ajmer and also subsequent proceedings

arising there-from stand hereby quashed and this petition is

allowed accordingly. Pending application, if any, stands disposed

of.

(BIRENDRA KUMAR),J

BM Gandhi/

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