Jugal Kishore vs State & Anr on 24 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3723 / 2016
Jugal Kishore S/o Shri Loonkaran Rathi, Aged About 52 Years,
Bhikamkor P.s. Osian Distt. Jodhpur. At Present R/o 31, Adarsh
Nagar, Gali No. 2, Lalsagar, Mandore, Jodhpur.

—-Petitioner
Versus

1. The State of Rajasthan

2. Shree Krishan Pareek S/o Shri Champa Lal Pareek, 79-e, Guljar
Nagar-a, Rto Link Road, Bhadvasiya, Jodhpur.

—-Respondents
__
For Petitioner(s) : Mr. Vinod Sharma with Mr. Hanuman
Khokhar
For Respondent(s) : Mr. M.S. Panwar, PP
Mr. Trilok Joshi
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
24/08/2017

1. The petitioner has preferred this criminal misc. petition

under Section 482 Cr.P.C. for quashing of FIR No.488/2016 dated

09.11.2016 registered at Police Station Udaimandir, Jodhpur for

the offence under Section 420 406 of IPC.

2. The brief facts of the case are that the respondent No.2

submitted a complaint regarding the plot No.88 situated at

Shobhawaton Ki Dhani, Khasra No.775/19, 775/19/1 775/19/2

Amrit Nagar, First Scheme, Jodhpur. Allegedly the petitioner made

a proposal to the complainant to sell the plot in question. On

assurance that the same has not been sold to anyone and if the

mortgage was redeemed by the present respondent to the tune of
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Rs. 20,00,000/- then the petitioner assured registration of the title

in favour of the complainant. The agreement was executed on

08.09.2013 according to which the deal was made for

consideration Rs. 27,60,000/- and against which Rs.7,60,000/-, in

cash which was to be paid as advance on the same day, a token

amount of Rs.1,30,000/- was paid to the petitioner on 09.09.2013

on an endorsed receipt.

3. The complainant’s main allegation was that the

petitioner was aware that the plot was in dispute and had already

been proposed to be sold by the petitioner earlier to one Chhoga

Ram vide agreement dated 25.07.2012. The sole allegation of the

complainant in the FIR was that since the plot was already

promised to be sold to one Chhoga Ram vide agreement dated

25.07.2012, therefore, the petitioner had committed an offence

under Section 420 406 of IPC against the present complainant

and the FIR was lodged bearing No.488/2016.

4. Learned counsel for the petitioner has shown from the

FIR that since the main allegation was only that Chhoga Ram was

transferred the title of the plots in question, therefore, at the

inception itself as per the respondent, the petitioner dishonestly

induced the complainant to purchase the plot in question, thereby

the complainant was deceived by the present petitioner in relation

to the plot in question.

5. Learned counsel for the petitioner has pointed that the

agreement with Chhoga Ram was abandoned on 25.04.2013

which was also recorded before the Additional Sessions Judge

No.1, Jodhpur in Criminal Case No.286/2016 vide order dated
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23.11.2016. The learned court below had recorded the fact that

the investigating officer had recorded the statement of Chhoga

Ram under Section 161 Cr.P.C., who had made a categorical

statement that he had entered into a compromise with the present

petitioner as his money was returned and the agreement between

them came to an end on 25.04.2013.

6. Learned counsel for the respondent and learned Public

Prosecutor vehemently opposed the arguments of learned counsel

for the petitioner by stating that Chhoga Rram has been managed

by the present petitioner and in fact the petitioner did not carry

the valid title in respect of the plot in question, at the inception.

7. Learned counsel for the respondent has also pointed

out that the petitioner took such steps which disable the

respondent from executing the agreement as the loan account

itself was closed and the respondent could not have deposited the

amount of Rs.20,00,000/- in the bank in accordance with the

agreement.

8. Learned counsel for the respondent states that the

petitioner did not have title of the property in question and was

therefore, at the inception, deceiving the petitioner intentionally

and inducing the respondent to make a sale of the said property.

9. Learned counsel for the petitioner has relied upon the

judgment of International Advanced Research Centre for

Powder Metallurgy and New Material (ARCI) and Others Vs.

Nimra Cerglass Technics Private Limited and another.

reported in (2016) 1 Supreme Court Cases 348. The relevant

portion of the judgment reads as under:

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“15. The essential ingredients to attract Section 420
Indian Penal Code are: (i) cheating; (ii) dishonest
inducement to deliver property or to make, alter or
destroy any valuable security or anything which is
sealed or signed or is capable of being converted into
a valuable security and (iii) mens rea of the accused at
the time of making the inducement. The making of a
false representation is one of the essential ingredients
to constitute the offence of cheating Under Section
420 Indian Penal Code. In order to bring a case for the
offence of cheating, it is not merely sufficient to prove
that a false representation had been made, but, it is
further necessary to prove that the representation was
false to the knowledge of the accused and was made
in order to deceive the complainant.

16. Distinction between mere breach of contract and
the cheating would depend upon the intention of the
accused at the time of alleged inducement. If it is
established that the intention of the accused was
dishonest at the very time when he made a promise
and entered into a transaction with the complainant to
part with his property or money, then the liability is
criminal and the accused is guilty of the offence of
cheating. On the other hand, if all that is established
that a representation made by the accused has
subsequently not been kept, criminal liability cannot
be foisted on the accused and the only right which the
complainant acquires is the remedy for breach of
contract in a civil court. Mere breach of contract
cannot give rise to criminal prosecution for cheating
unless fraudulent or dishonest intention is shown at
the beginning of the transaction. In S.W. Palanitkar
and Ors. v. State of Bihar, this Court held as under:

“21. …In order to constitute an offence of
cheating, the intention to deceive should
be in existence at the time when the
inducement was made. It is necessary to
show that a person had fraudulent or
dishonest intention at the time of making
the promise, to say that he committed an
act of cheating. A mere failure to keep up
promise subsequently cannot be presumed
as an act leading to cheating.”

The above view in Palanitkar’s case was referred to
and followed in Rashmi Jain v. State of Uttar Pradesh
and Anr. (2014) 13 SCC 553.

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10. Learned counsel for the petitioner has relied upon the

judgment of Devendra Others Vs. State of Uttar Pradesh

Another. reported in (2009) 7 Supreme Court Cases 495. The

relevant portion of the judgment reads as under:

“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. 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
Indian Penal Code to mean:

“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’.”

16. In V.Y. Jose v. State of Gujarat and Anr.
(2009)3SCC78, this 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

(iii) 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.

For the purpose of constituting an offence of cheating,
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[CRLMP-3723/2016]

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 Indian Penal 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.”

11. Learned counsel for the petitioner has relied upon the

judgment of Binod Kumar and Others Vs. State of Bihar and

Another reported in (2014) 10 Supreme Court Cases 663.

The relevant portion of the judgment reads as under:

“11. Referring to the growing tendency in business
circles to convert purely civil disputes into criminal
cases, in paragraphs (13) and (14) of the Indian Oil
Corporation’s case (supra), it was held 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
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Suri v. State of U.P. (2000) 2 SCC 636 this
Court observed:

‘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 Code of Criminal
Procedure more frequently, where they
discern malice or frivolousness or ulterior
motives on the part of the complainant. Be
that as it may.

15. Section 405 Indian Penal Code deals with criminal
breach of trust. A careful reading of the Section 405
Indian Penal Code shows that a criminal breach of
trust involves the following ingredients:

(a) a person should have been entrusted
with property, or entrusted with dominion
over property;

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(b) that person should dishonestly
misappropriate or convert to his own use
that property, or dishonestly use or dispose
of that property or wilfully suffer any other
person to do so;

(c) that such misappropriation, conversion,
use or disposal should be in violation of any
direction of law prescribing the mode in
which such trust is to be discharged, or of
any legal contract which the person has
made, touching the discharge of such trust.

16. Section 406 Indian Penal Code prescribes
punishment for criminal breach of trust as defined in
Section 405 Indian Penal Code. For the offence
punishable Under Section 406 Indian Penal Code,
prosecution must prove:

(i) that the accused was entrusted with
property or with dominion over it and.

(ii) that he (a) misappropriated it, or (b)
converted it to his own use, or (c) used it,
or (d) disposed of it.

The gist of the offence is misappropriation done in a
dishonest manner. There are two distinct parts of the
said offence. The first involves the fact of entrustment,
wherein an obligation arises in relation to the property
over which dominion or control is acquired. The
second part deals with misappropriation which should
be contrary to the terms of the obligation which is
created.

18. In the present case, looking at the allegations in
the complaint on the face of it, we find no allegations
are made attracting the ingredients of Section 405
Indian Penal Code. Likewise, there are no allegations
as to cheating or the dishonest intention of the
Appellants in retaining the money in order to have
wrongful gain to themselves or causing wrongful loss
to the complainant. Excepting the bald allegations that
the Appellants did not make payment to the second
Respondent and that the Appellants utilized the
amounts either by themselves or for some other work,
there is no iota of allegation as to the dishonest
intention in misappropriating the property. To make
out a case of criminal breach of trust, it is not
sufficient to show that money has been retained by
the Appellants. It must also be shown that the
Appellants dishonestly disposed of the same in some
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way or dishonestly retained the same. The mere fact
that the Appellants did not pay the money to the
complainant does not amount to criminal breach of
trust.

19. Even if all the allegations in the complaint taken at
the face value are true, in our view, the basic essential
ingredients of dishonest misappropriation and cheating
are missing. Criminal proceedings are not a short cut
for other remedies. Since no case of criminal breach of
trust or dishonest intention of inducement is made out
and the essential ingredients of Sections 405/420
Indian Penal Code are missing, the prosecution of the
Appellants Under Sections 406/120B Indian Penal
Code, is liable to be quashed.”

12. After hearing learned counsel for the parties and

perusing the record of the case as well as precedent laws cited at

Bar, this Court is of the opinion that the sum and substance of the

FIR was that at the time of agreement with the respondent No.2,

the property in question was already promised to be transferred to

one Chhoga Ram vide agreement dated 25.07.2012. It is an

admitted position which is also reflected in the case diary that

Chhoga Ram has during investigation deposed before the

investigating authority and stated that though he had entered into

an agreement on 25.07.2012 but after a compromise, he has

abandoned the agreement and vide compromise between the

parties on 25.04.2013, he has agreed to the proposition of the

petitioner that the agreement in question shall no more have any

impact upon the title of the petitioner. Thus, very basis of the FIR

is not found to be correct in the investigation and the investigating

authority has categorically pointed out that Chhoga Ram was not

having any claim over the property in question after 25.04.2013

whereas the agreement between the petitioner and respondent
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No.2 had happened only on 08.09.2013 and at the very inception,

the petitioner was neither deceiving the respondent No.2 nor

inducing him by any of his act which would amount to an offence

as defined under Section 415 IPC.

13. Since, the offence under Section 415 IPC itself was not

made out, there is no question of offence under Section 420 IPC

being made out, as the basic ingredients of the alleged offence is

cheating and dishonest inducement, at the inception, for delivery

of property. Thus, even in the constrained jurisdiction under

Section 482 Cr.P.C. after seeing the precedent laws and observing

the facts, on the face of it, this Court finds that no offence is made

out.

14. In light of the aforesaid observations, the present

petition is allowed and the FIR and further proceedings in

pursuance of FIR No.488/2016 registered at Police Station

Udaimandir, Jodhpur is hereby quashed and set aside.

(DR. PUSHPENDRA SINGH BHATI)J.

zeeshan/

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