Rajasthan High Court - Jodhpur
Nemaram vs State Of Rajasthan (2025:Rj-Jd:1940) on 13 January, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:1940] (1 of 7) [CRLMP-4157/2018]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4157/2018
1. Nemaram S/o Thanaram Seervi, Aged About 60 Years,
Pali
2. Laxmi Spouse/o Nemaram Seervi, Aged About 55 Years,
Melawas
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Durgaram S/o Motiram Seervi, Bornadi
----Respondents
For Petitioner(s) : Mr. Nishant Bora
For Respondent(s) : Mr. Vikram Rajpurohit, PP
Mr. Varda Ram Choudhary
HON'BLE MR. JUSTICE FARJAND ALI
Order
13/01/2025
1. Heard learned counsel for the parties, gone through order
under assail as well as the other relevant material as made
available to this Court.
2. By way of filing instant petition a challenge has been made
to the very lodging of the FIR No. 115/18 , on the ground
that even if the contents of the FIR are taken in its entirety
or even on its face value or even it is not rebutted the same
does not show cognizable offence rather it seems to be a
dispute of predominately civil nature. I have minutely gone
through the contents of the FIR and so also the other
relevant material.
[2025:RJ-JD:1940] (2 of 7) [CRLMP-4157/2018]
3. Indisputably the complainant in this regard had entered into
an agreement for the sale of a piece of land with brother of
the petitioner No.1 in the year 2013, it is the assertion of the
complainant that after making an upfront amount, he had
paid the entire amount of sale consideration to the brother of
the petitioner No.1, however, he did not execute the sale
deed in his favour which made him to lodge the FIR. It is
further contended in the FIR that no payment was due with
the vendor and therefore, he was supposed to execute the
sale deed in favour of the complainant instead thereof he
connived with his full blood brother and executed a sale deed
in favour of his brother, who is petitioner herein, in the year
2017.
4. The plea taken by learned counsel for the petitioner that at
the best it may be the case of breach of condition of the
agreement entered in between the complainant and brother
of the petitioner and for which he should have filed a suit for
specific performance of the contract, however, instead of
doing so, he opted to lodge the FIR for mounting pressure
upon the petitioner who has to do nothing with the
transaction took place between the parties to the agreement.
5. There is a substance in the statement of the petitioner. The
agreement of sale got executed in the year 2013 and upon
asking whether any notice was given by the complainant to
the vendor showing his willingness to execute the sale deed,
the answer was in negative.
[2025:RJ-JD:1940] (3 of 7) [CRLMP-4157/2018]
6. Learned counsel for the respondent repeatedly insisted upon
to take note of the fact that the sale consideration has been
paid to the vendor much before making payment by the
petitioner to the vendor and thus, the dishonest intention on
the part of the vendor and the petitioner is very much
evident.
7. I have carefully considered this issue. Notably, the record
lacks any evidence demonstrating why the complainant,
despite the alleged non-performance by the vendor (his
brother-in-law) for approximately five years, did not take
any remedial steps. The agreement was executed on
08.03.2013. If, as alleged, the complainant had indeed paid
the entire sale consideration, there was no impediment to
him promptly insisting upon the vendor to execute the sale
deed. It is crucial to distinguish between a breach of contract
and a breach of trust. While a breach of contract may give
rise to a civil liability, criminal prosecution typically arises
from a breach of trust.
8. A breach of trust and dishonest intention should be evident
from the inception of the agreement. In a situation where
the initial agreement is executed with bona fide intentions
but a subsequent breach occurs, it cannot be automatically
construed as a criminal offence. This case appears to fall
squarely within the ambit of Ilustration (g) of Section 415 of
the Indian Penal Code (IPC), which states:
"A intentionally deceives Z into a belief that A means to
deliver to Z a certain quantity of indigo plant which he does
[2025:RJ-JD:1940] (4 of 7) [CRLMP-4157/2018]
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."
This illustration highlights that a mere breach of contract,
even if deliberate, does not necessarily constitute cheating
under Section 415 IPC, which is a crucial element for
establishing an offense under Section 420 IPC. Simple
defrauding does not amount to cheating; there must be an
element of dishonesty and deception.
9. To invoke the offence of Section 420 IPC (cheating and
dishonestly inducing delivery of property), the prosecution
must establish the essential elements of cheating as defined
under Section 415 IPC. Section 415 IPC defines "cheating"
as deceiving any person by any deception, with intent to
defraud such person to deliver property. Mere defrauding,
without the presence of dishonesty and an intention to
deceive, does not constitute the offense of cheating. In the
present case, while there may be allegations of breach of
contract and potential civil liabilities, the prosecution has
failed to demonstrate the presence of any deceitful act or
intent to defraud the complainant at the time of the
agreement. The evidence suggests that the vendor, at the
time of entering into the agreement, may have intended to
fulfill his obligations. However, the subsequent failure to
execute the sale deed, while constituting a breach of
[2025:RJ-JD:1940] (5 of 7) [CRLMP-4157/2018]
contract, does not necessarily amount to cheating under
Section 415 IPC.
10. Having meticulously examined the facts and
circumstances of the case, the Court finds that the essential
elements constituting the offences alleged in the FIR are
conspicuously and manifestly absent. The allegations, upon
scrutiny, do not reveal any evidence of criminal wrongdoing.
Permitting the continuation of this FIR would not only be an
unwarranted interference with the petitioner's liberty but
would also constitute a grave abuse of the judicial process.
This Court cannot, in good conscience, allow such a
miscarriage of justice to occur.
11. With respect to the invocation of Section 406 of the
Indian Penal Code (IPC) (criminal breach of trust), it is
fundamental to establish the existence of a trust
relationship. This necessitates a demonstration that property
was entrusted to the accused with the explicit or implicit
understanding that it would be returned or used for a specific
purpose. Furthermore, it must be shown that the accused, in
violation of this trust, dishonestly misappropriated the
property for their own use or otherwise acted contrary to the
terms of the trust. In the present case, there is no evidence
to suggest that the petitioner ever received any property
from the complainant under such a trust. The alleged
transaction pertains to the sale of land, where the
complainant's claim is primarily based on the alleged breach
of a contractual agreement to execute a sale deed. This
[2025:RJ-JD:1940] (6 of 7) [CRLMP-4157/2018]
scenario does not fall within the ambit of Section 406 IPC, as
the alleged breach, if any, arises from a contractual
obligation rather than a breach of trust.
12. Sections 467 and 468 of the Indian Penal Code (IPC)
pertain to the punishment for making a false document and
forgery, respectively. The definitions of "making a false
document" and "forgery" are provided in Sections 463 and
464 of the IPC. A careful examination of these definitions in
conjunction with the allegations contained within the First
Information Report (FIR) unequivocally demonstrates that
neither the fabrication of a false document nor the act of
forgery is discernible. It is crucial to emphasize that the
complainant themselves have not asserted that any
document was forged. The investigating officer's conclusion
that offences under Sections 463 and 467 of the IPC are
established appears to be entirely baseless and devoid of any
rational foundation. This conclusion is particularly egregious
considering the complete absence of any such allegation
regarding the creation of a false document within the FIR
itself. Upon a thorough analysis from all perspectives, this
Court finds no grounds to support the continuation of the
FIR. The present case falls squarely within the ambit of the
legal principles enunciated by the Hon'ble Supreme Court in
the landmark judgment of State of Haryana and Ors. V.
Ch. Bhajan Lal and Ors., reported in AIR 1992 SC
604.It has unequivocally held that where a plain reading of
the First Information Report (FIR) does not disclose the
[2025:RJ-JD:1940] (7 of 7) [CRLMP-4157/2018]
commission of a cognizable offence, the Court should not
hesitate to quash the FIR. Furthermore, when the allegations
appear to be frivolous, vexatious, and inherently improbable,
the High Court should not hesitate to quash the FIR. This
principle is firmly rooted in the doctrine of inherent powers of
the Court to prevent abuse of the judicial process. The Court
has a duty to ensure that its processes are not misused for
extraneous purposes, such as harassment or undue
pressure.
13. Accordingly ,the instant Criminal Misc. Petiton is
allowed.
14. In view of the discussion made above, I see no reason
to allow continuation of FIR No.115/18, thus ,the instant
Criminal Misc. Petiton deserves to be allowed.
15. Accordingly, the instant petition is hereby allowed. It is
ordered that FIR No.115/18 registered at Police Station Sojat
Road, Pali and all proceedings initiated in consequence
thereof are quashed and set aside qua the petitioner. The
SHO, Sojat City, District Pali is directed to file the closure
report in the Court concerned. However, nothing would
preclude the parties to take proper steps in regard to breach
of their civil liabilities.
16. The stay petition stand disposed of.
(FARJAND ALI),J
3-Chhavi/-
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