Uttarakhand High Court

Ishlam And Others ........... ... vs State Of Uttarakhand And Another on 16 November, 2022

     HIGH COURT OF UTTARAKHAND AT NAINITAL

      Criminal Misc. Application No. 326 of 2017

Ishlam and others                                ........... Petitioners

                                  Vs.

State of Uttarakhand and another                  ........ Respondents



Present :   Mr. Tapan Singh, Advocate for the petitioners.
            Mr. Lalit Miglani, A.G.A. with Ms. Sonika Khulbe, Brief
            Holder for the State/respondent no.1.
            Mr. A.M. Saklani, Advocate for the respondent no.2.



                             JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to the

charge-sheet dated 25.09.2016, summoning order dated

09.02.2017, passed in Case No. 1813 of 2017, State vs.

Islam and three others, under Sections 420, 406, 452,

323, 504, 506 IPC, by the court of Chief Judicial

Magistrate, Haridwar, District Haridwar (for short, "the

case") and entire proceedings of the case.

2. Heard learned counsel for the parties and

perused the record.

3. The case is based on an FIR, lodged by the

respondent No.2, Sanjay Aggarwal ("the informant") on

08.05.2016 at Police Station Kotwali Jwalapur, District

Haridwar. According to it, the informant wanted to

purchase certain property from the petitioners. An

agreement was executed on 16.11.2013 and `15 Lacs was

given to the petitioners. The sale-deed was to be executed

till 30.12.2013. The informant approached the petitioners

and expressed his willingness to purchase the property,

but the FIR records that the petitioners did not execute

the sale-deed. The informant gave a notice to the

petitioners on 12.05.2015. On 31.05.2015, according to

the FIR, the petitioners entered into the house of the

informant and attacked him. It is this FIR, in which, after

investigation, charge-sheet has been submitted and

cognizance was taken on 09.02.2017. It is impugned

herein.

4. Learned counsel for the petitioners would

submit that it is a case purely civil in nature without any

element of criminality. He would submit that the incident

of 31.05.2015 has falsely been alleged just to give

criminal colour to a transaction, which was purely civil in

nature. He would submit the following, as well:-

(i) The agreement was executed on 16.11.2013.

The petitioners were ever willing to execute the

sale-deed and they are even today ready and

willing to execute the sale-deed, but it is

argued that it is the informant, who is not

interested in purchasing the property.

(ii) The agreement itself records that on

24.11.2013, the informant was to give `10 Lacs

to the petitioners, which he never gave.

(iii) The notice was received by the petitioners,

which was suitably replied by them, which is

annexure no.4 to the petition and in that notice

also, the petitioners have stated that they were

ready and willing to execute the sale-deed.

5. On the other hand, learned counsel for the

informant would submit that the petitioners have cheated

the informant. The informant wanted to purchase the

property, but the petitioners did not execute the sale-

deed. Not only this, it is argued that in the name of civil

litigation, the petitioners do not get any license to attack

the informant. Learned counsel would submit that merely

because the nature of the case is civil in nature, the

criminal liability is not absolved. A case of civil in nature

may have the elements of criminality. Even otherwise, it is

argued that the incident dated 31.05.2015 is purely

criminal in nature, when the informant was attacked in

his house.

6. In support of his contention, learned counsel

placed reliance on the principle of law as laid down in the

case of V. Ravi Kumar vs. State of Tamil Nadu and others,

(2019)14 SCC 568 and Vijayander Kumar and others vs.

State of Rajasthan and another, (2014)3 SCC 389. In the

case of V. Ravi Kumar (supra), the Hon'ble Supreme Court

has drawn a distinction between a mere breach of

contract and cheating. In para 23, the Hon'ble Supreme

Court observed as hereunder:-

"23. 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 a 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 this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced."

7. In the case of Vijayander Kumar (supra),

Hon'ble Supreme Court accepted the contention that, "a

given set of facts may make out a civil wrong as also a

criminal offence and only because a civil remedy may

also be available to the informant/ complainant that

itself cannot be a ground to quash a criminal

proceeding."

8. It is a petition under Section 482 of the Code of

Criminal Procedure, 1973. A jurisdiction, which is much

wide, but guided by the principle of law as laid down in a

catena of judgments. If prima facie case is made out,

interference in such cases is not made in this jurisdiction.

9. In so far as civil case and criminal case is

concerned, the law is well settled that the nature of the

case may be civil or criminal or both. There may be a

dispute, which in its nature is civil with the element of

criminality. In such cases, merely because the nature of

the case is civil also, the criminal liability does not get

absolved. It is only in such civil cases, which has no

element of criminality that interference in this jurisdiction

may be warranted.

10. In the case of Indian Oil Corporation vs. NEPC

India Ltd. and others, (2006)6 SCC 736. In para 12 of it,

the Hon'ble Court observed as hereunder:-

"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 Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are:

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(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 proceeding 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." (emphasis supplied)

11. Initially, the dispute between the parties was

with regard to an agreement executed on 13.11.2013. The

contents of the agreements are not disputed. The sale-

deed was to be executed till 30.12.2013, but the

petitioners was to receive `10 Lacs on 24.11.2013. It is

also admitted to the parties that the informant issued a

notice on 12.05.2015 to the petitioners, which was also

replied by the petitioners. It is annexure no.4 to the

petition. These facts are admitted. A perusal of this reply

revealed that, in fact, the petitioners have expressed their

willingness even on that date to execute the sale-deed.

What happened thereafter? Did the informant approach

the petitioners to execute the sale-deed?

12. According to the FIR, thereafter, the petitioners

attacked the informant in his house on 31.05.2015. It is

argued that this is a separate incident. Merely, because

something is written in the FIR and charge-sheet has

been filed, it cannot be taken as a gospel truth.

Summoning is not an exercise, which may be undertaken

in a routine and mechanical manner. After all, a person is

called for facing trial. The court at that stage has also to

weigh the credibility of a material placed before it to

assess the prima facie nature of the case.

13. In order to attract the provisions of Sections

406 and 420 IPC, it is not a physical act, which is

important, the intention of the parties is much important.

The intention should be dishonest. A business

transaction or contractual obligations without any

dishonest intention may perhaps not attract the

provisions of this Act. At the most, it would be a breach of

contract. In the Case of B. Suresh Yadav vs. Sharifa Bee

and another, (2007)13 SCC 107, the Hon'ble Supreme

Court discussed the provisions of Section 415 and

observed as hereunder:-

"11. Ingredients of cheating are:

(i) deception of a person either by making a false or misleading representation or by other action or omission; and

(ii) fraudulent or dishonest inducement of that person to either deliver any property to any person 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.

12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a

competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute."

14. According to the FIR, the petitioners did not

execute the sale-deed. The petitioners have a different

version. On the date when they replied the notice given by

the informant, they expressed their willingness to execute

the sale-deed. Therefore, this dispute is purely civil in

nature without any element of criminality.

15. There is another incident dated 31.05.2015. It

is related to the sale-deed. In view of the facts and

circumstances of this case, the Court is of the view that

the averments, with regard to the alleged incident dated

31.05.2015 is nothing but an attempt to give criminal

colour to a civil dispute. Although, the informant, his wife