@JUDGMENTTAG-ORDER
Manindra Mohan Shrivastava, J.@mdashThis petition u/s 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") has been filed by the petitioners for quashing FIR dated 28-07-2004 lodged at Police Station Pandri (Mova) under Crime No. 160 of 2004 alleging commission of offence u/s 420 of the IPC by the petitioners and all connected criminal proceedings pending in the Court of Judicial Magistrate First Class, Raipur under Criminal Case No. 339 of 2005. Brief and necessary factual matrix giving rise to this petition are that the petitioner No. 1 in his capacity as Manager of Jain Automobiles entered into an agreement to sell a parcel of land admeasuring 0.148 Hectare situated at Khasra No. 855/2 & 856/2 in Village Mova with the respondent No. 2/complainant and advance of Rs. 5 Lakh was paid by the respondent No. 2 to the petitioner No. 1. Under Clause 2 of the said agreement, the petitioner No. 1 had agreed to sell his land to respondent No. 2 by registered sale deed within a period of three months. The petitioners, however, received a legal notice on behalf of respondent No. 2 alleging fraud practiced by the petitioners. In the notice (Annexure P/3) sent by the respondent No. 2, it was alleged that the respondent No. 2 was allowed the spot inspection of the land and informed that the land is adjacent to road and further that the respondent No. 2 would be provided a front of 125 feet, but later on, while making enquiry with regard to the title of the petitioners, the respondent No. 2 came to know that there is no road adjacent to the plot under agreement of sale and in fact it is abutting government land of 16 acres and under the master plan, there is no road proposed. It was also alleged that the area, where the land under agreement is situated is proposed for recreational purposes under the master plan of 2001 and also likely to be acquired for M.L.A. Rest House. Thus, it was alleged that the petitioners have cheated the respondent No. 2 with regard to the exact location of the road and the purpose, for which, the area is reserved and by fraudulent misrepresentation, obtained Rs. 5 Lakhs as advance. The notice was replied by the petitioners on 17-06-2004 denying allegations and stating that the respondent No. 2 is pressurizing the petitioners to sell the land at reduced rate of Rs. 120/- per square feet instead of agreed rate of Rs. 160/- per square feet and when the petitioners denied, such false allegations are being levelled and lame excuses are being made to avoid performance of obligations under the agreement towards execution of sale deed by payment of the balance amount.
2. The respondent No. 2, thereafter, lodged a written complaint to the Superintendent of Police against the petitioners alleging fraud and cheating. On the report of the respondent No. 2, the Police of Police Station Pandri (Mova) registered FIR under Crime No. 160/2004 for offences u/s 420/34 of the IPC against the petitioners and have submitted a final report u/s 173 of the Cr.P.C. before the Chief Judicial Magistrate, Raipur.
3. In support of its prayer for quashing FIR and connected criminal proceedings, learned counsel for the petitioners contended that the dispute between the parties is purely of civil nature but in order to twist the tail of the petitioners, the respondent No. 2/complainant has abused the process of law by falsely alleging cheating and fraud. Learned counsel for the petitioners contended that the allegations as contained in the FIR and statement of the complainant and his witnesses do not involve the essential ingredients of commission of offence u/s 420 of the IPC. It is further contended that the allegations that the respondent No. 2 was allowed to inspect the subject land and informed that there is a road adjacent to the plot, on which, 125 Feet front would be provided, later on, turned out to be false, is inherently improbable and concocted story, because it is against the stipulations of the agreement. In his submission, the agreement clearly provided that the land is situated at a distance of � Kilometer from the main road, therefore, the allegations are baseless. It is further contended that neither in the FIR nor in any of the statements, there is any allegation of fact that the representation was made by the petitioners to the effect that the land is reserved for residential purposes so as to induce the complainant to act upon such representation. He submits that the allegation contained in the FIR, are inherently improbable and absurd, because of one more important fact that the respondent No. 2 owns land in the adjacent Khasra Numbers in the same area, and therefore, he was fully knowing about the purpose, for which, lands were proposed to be reserved under the master plan in that area and further that there was no road abutting the plots, in respect of which, the agreement was entered into between the parties. It is urged that the land was free from encumbrance and no cheating or fraud has been played by the petitioners. The petitioners never gave any representation that the land is situated in a area proposed for residential purposes and suppressed that the area is proposed to be reserved for recreational purposes, therefore it is contended, present is a case, where in order to wriggle out of the obligations under the agreement, the respondent No. 2 has taken recourse to criminal proceedings to exert pressure on the petitioners to come to his terms, which is abuse of the process of law warranting interference of the Court u/s 482 of the Code. In support of his submission, learned counsel for the petitioners relies upon decisions in the cases of
4. On the other hand, learned counsel for the State as well as learned counsel for the respondent No. 2 opposed the prayer of the petitioners by submitting that no case warranting interference u/s 482 of the Code is made out at this stage, because the allegations contained in the FIR and other material in the charge sheet including statements of the complainant and his witnesses do make out a prima facie case of commission of offence u/s 420/34 of the IPC against the petitioners. It is submitted that in the FIR, it has been clearly alleged, supported by case diary statements, that at the time when the respondent No. 2 was shown allowed to inspect the subject land, a clear and categoric representation was made that the subject land is adjacent to a road and a front of 125 Feet would be provided. It was on this representation made by the petitioners that the respondent proceeded to enter into an agreement to purchase the said land for a consideration of Rs. 25,48,000/- and the petitioners were paid advance of Rs. 5 lakhs. Later on, when enquiry with regard to the title was made, the complainant came to know that he has been cheated and defrauded, because there was no road adjacent to the plot and in fact, it was abutting government land and further that the area, where the land was situated, was proposed for recreational purposes under the master plan, which fact was suppressed. Learned counsel further submitted that the petitioners made a false representation that the land was free from encumbrances. Thus, there was an intention to cheat from the very inception of the transaction and because of the fraudulent representation, the complainant proceeded to enter into an agreement of sale and paid huge amount of Rs. 5 Lakhs to the petitioners as advance. Learned counsel further submitted that at this stage, the correctness and veracity of the case of the prosecution is not to be judged, but the allegations are to be taken on its face value as it is. Learned counsel for the respondent No. 2 further stressed that Clause 3 of the agreement stipulates that the petitioners would provide a front of 125 feet, which clearly implied that a clear representation was made to the effect that the subject land is adjacent to a road. In support of his submission, learned counsel for the respondent No. 2 relies upon decisions in the cases of
5. I have considered the submission of learned counsel for the parties and perused the records.
6. Before adverting to the various submissions made by learned counsel for the respective parties with reference to the material available on record, the settled legal position with regard to scope of interference u/s 482 of the Code needs to be noted.
7. The scope and ambit of the power of High Court u/s 482 of the Code came up for consideration by the Supreme Court in the case of
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged.
(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
8. The aforesaid principles were again reiterated elaborately and comprehensively in well-known decision of the Supreme Court in the case of
102. ......
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
9. The amplitude of the power and the guiding principles for exercise of such power as laid down in the aforesaid decision have been subsequently reiterated in the plethora of decisions of the Supreme Court, some of them are,
10. The scope and power and limitation in the matter of quashing of criminal proceedings in exercise of power u/s 482 of the Code again came-up for consideration before a larger Bench of the Supreme Court in the case of
The Supreme Court again considered the scope and ambit of power u/s 482 of the Code in the case of
12. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction u/s 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.
Similar is the view taken in the case of
11. The contentions made by learned counsel for the parties therefore are required to be examined in the light of principles which have been stated and re-stated in the aforesaid decisions, in order to find out whether a case for quashing criminal proceedings constituted upon complaint is made out so as to warrant interference by this Court, invoking power u/s 482 of the Code.
12. Section 420 of the IPC provides for punishment for cheating and dishonestly inducing delivery of property. "Cheating" has been defined in Section 415 of the IPC, which is reproduced as below:
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".
Explanation -- A dishonest concealment of facts is a deception within the meaning of this section.
The ingredients and essence of cheating were examined by the Supreme Court in the matter of
42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.
In the matter of
8... An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.
In the case of Inder Mohan Goswami (supra), while examining whether a case of quashing FIR is made out or not, the question which the Supreme Court posed to itself was:
38. The question before us is -- whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120-B IPC? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint.
While undertaking similar examination in the matter of quashing of FIR, in the case of Dalip Kuar (supra), the Supreme Court stressed upon the approach required to be adopted by the High Court, in following words
10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception.........
13. In the FIR, registered on the basis of written complaint made by the respondent No. 2, it has been alleged that the parties had entered into the agreement on 15-03-2004 to sell the land situated at Khasra No. 855/2 & Khasra No. 856/2, Patwari Halka No. 109, admeasuring 0.148 Hectare, 15725 Square Feet, Revenue Circle Raipur and an advance of Rs. 5 Lakh was paid to the Vimal Jain, the petitioner No. 1. It was alleged that when the title of the petitioners was enquired, it was found that the correct description and location of the land was not stated before the agreement arrived at between the parties and the petitioner No. 1-Vimal Jain gave false information and assurance that the land is abutting the road and he would be provided front of 125 feet and further that the land is free from any government or non-government taxes or any other encumbrances. In the FIR, it has been alleged that upon enquiry into the title, it was revealed that there was no road nor any front available along the side of any road and further that in the master plan of the year 2001, land is reserved for recreational purposes and part of that land is also proposed for MLA Rest House. The petitioners suppressed these facts while entering into the agreement to sell and fraudulent representation was made regarding location of the land as being adjacent to the road. It has also been alleged that under the said agreement, an advance of Rs. 5 lakh was paid and when the complainant came to know that he has been cheated, refund was claimed, which is being denied.
14. In the case diary statement, the complainant-Rajeev Mundra has stated that he was shown the land in the morning of 05-03-2004 and it was stated that this land is abutting the road and front of 125 feet would be provided, whereupon, the parties agreed for sale of the land for a consideration of Rs. 25,48,000/- @ Rs. 160/- per Square Feet and agreement was prepared, of which, Manish Makhija and Atul were witnesses. A cheque was also given to the petitioner No. 1, but later on, upon enquiry, it was found that the land is reserved for recreational purposes, whereas the complainant wanted to purchase the land for residential purposes and the complainant was cheated by falsely representing that 125 feet of subject land is abutting the< road. The case diary statement of Manish Makhija as well as Atul Deshpande, who are said to be the witnesses of the execution of agreement of sale, have stated that on 15-03-2004, the petitioner No. 1 - V. K. Jain had come to the office of the complainant and informed that the land is adjacent to the road with 125 feet available, which representation was acted upon and agreement was entered into between the parties. It is stated that at that time, the petitioner No. 2 was also present. A cheque of Rs. 5 Lakh was given. Later on, it was revealed that the land was reserved for recreational purposes and land is not abutting the road, but between the land and the road, there is a government land. Same is the statement of Atul Deshpande. Therefore, the contents of FIR and the case diary statements spell out that the petitioners had represented the complainant that the land is adjacent to road and a front of 125 feet would be provided. It also contains the allegation that upon enquiry with regard to title made by the complainant, it was found that there was no road abutting the subject land nor front of 125 feet was available and the area, where the land is situated, was reserved for recreational purposes. Thus, the foundation of allegation against the petitioners is that the petitioners made false representation regarding the location of the land, where the land was actually situated by the side of the road and thereby the complainant was cheated.
15. It has been vehemently submitted by learned counsel for the petitioners that these allegations, which are contained in the FIR as well as in the case diary, are absurd and inherently improbable and that the proceedings are instituted maliciously with an ulterior motive to twist the arm of the petitioners in a civil dispute, because it is a dispute of civil nature.
16. At the first place, on principles, it cannot be accepted that merely because a dispute involves dispute of civil nature, no criminal proceedings would be initiated. There may be cases, where the dispute may not only involve civil liability, but at the same time, act of a party may involve criminality as well. These principles has been very well established by the Supreme Court in a catena of decisions. Therefore, merely because the dispute arises out of the agreement between the parties, the criminal proceedings cannot be quashed on that count alone, if otherwise the allegations, prima facie, make out a case of commission of offence.
17. Important issue, which arises for consideration, in the light of the submission made by learned counsel for the petitioners, is whether the allegations contained in the FIR and case diary statements taken along with the other material i.e. agreement etc., are so absurd and inherently improbable, on the basis of which, no prudent person can ever reach a just conclusion that there is a sufficient ground for proceeding against the accused.
18. In the case of
19. The agreement, which has been placed on record, has not been disputed by the respondents. The said agreement dated 15-03-2004 is with regard to sale of land situated in Khasra No. 855/2 & 856/2 admeasuring 0.148 Hectare, Patwari Halka No. 109, Village Mova, Revenue Circle Raipur. There is no allegation either in the FIR or in the case diary statement of the prosecution witnesses including the statement of the complainant himself that on the date of execution of agreement, the petitioner No. 1 was not the owner of the subject land or that the land is not situated in concerned khasra numbers or in the Village, Halka Number stated in the agreement. The written agreement very specifically and categorically records that the land is situated at a distance of approximately � Kilometer from the main road. The agreement nowhere stipulates that the land, which is stated to be � Kilometer away from main road, is otherwise abutting any other road or sub-way. The allegations contained in the FIR and the written complaint as also in the statements would show that the complainant had seen the location of the land also. Certainly, the complainant had seen the location of the land and also seen whether there is a road adjacent to the plot or not. The case of the complainant is not that some other land abutting the road, which bore different khasra numbers was shown, but the agreement described some other land situated in some other khasra numbers, village or Patwari Halka Number. Importantly, the agreement clearly recites that the land is situated at a distance of about � Kilometer from the main road. Therefore, the recitals of the agreement clearly show the location of the land, as being � Kilometer away from the road, therefore, the allegation in the FIR and the case diary statements that the land was shown to be abutting adjacent to the road, to say the least, is absurd and inherently improbable. If at all the location of the land was so material for the purchaser/complainant, there was no reason not to specifically record that the land was abutting road and in its place record in writing that the land is � Kilometer away from the main road. It is not even the case of the complainant that apart from the main road stated to be � Kilometer away from the subject land, there was some other road existing.
20. Though, an attempt has been made by learned counsel for the respondents to convince the Court that Clause (3) of the agreement talks of 125 feet front implying that the plot was represented to be adjacent to a road, in view of the categoric and specific stipulation in earlier clause of the agreement that the land is situated at a distance of approximately � Kilometer away from the main road, no such implication is warranted. Even though, express stipulation is made that the subject land is situated at a distance of � Kilometer from the main road, in what context, Clause (3) of the agreement was entered into between the parties, is essentially a matter of ad idem between the parties. But then to say that the oral representation was made against express stipulation of the agreement, appears to be absurd and inherently improbable.
21. There is yet another glaring aspect of the matter, which renders the allegations absurd and inherently improbable. The petitioners have very categorically stated in the petition supported by the revenue documents placed on record as Annexure P/7 that in fact, the complainant party owns the land admeasuring 0.097 Hectare in Khasra No. 855/4 in the same Patwari Halka Number. This has not been substantially disputed before this Court by the respondents either by filing any rejoinder or by placing any other document to rebut such statement of fact. Though, ordinarily, at this stage, the Court would not take into consideration the documents filed by one, who seeks quashing of complaint, but, the document, which is beyond doubt, certainly be looked into by the Court for the purpose of finding out as to whether the criminal proceeding are abuse of the process of law warranting interference u/s 482 of the Code as held by the Supreme Court in the case of
22. Neither in the complaint nor in the statements, there is any iota of allegation that the petitioners made any representation to the effect that the land is reserved for residential purposes and not for recreational purposes. It is nowhere stated either in the written complaint to the Superintendent of Police or in the FIR or in the statement of the complainant or his witnesses that the complainant informed the petitioners that he was willing to purchase the land for residential purposes and that he would be interested only when the land is situated in a area, reserved for residential purpose and not otherwise. The allegations contained in the FIR and the case diary statement would show that the land is adjacent to a road and 125 feet front would be provided, which in view of the discussion as above, has been found by this Court to be inherently improbable and absurd to reach a just conclusion that there is sufficient ground for proceedings against the accused. Therefore, there is nothing in the allegations that any such representation much less fraudulent misrepresentation was made by the petitioners that the land is reserved for residential purposes. Thus, on that count the essential ingredients of cheating are not made out. It is also not a case, where a false representation was made that the land is free from encumbrances or subjected to any kind of government or non-government tax. In the entire case of the prosecution much less the allegations contained in the FIR and the case diary statements, there is no material to even remotely suggest that there was some encumbrance on the subject land. The submission of learned counsel for the respondent that the land is not free from encumbrances, because it could not be used for residential purposes as the area is reserved for recreational purposes, deserves to be rejected at the threshold. If under a master plan, any particular area is reserved for a particular purpose, may be residential, recreational or commercial, it cannot be said that it is an encumbrance on the land. It is not the case of the complainant that the properties were subjected to any charge or that it is mortgaged or suffers from any burden, which impairs the use of land or depreciates its value. Meaning of the word "encumbrance" in relation to immovable property was considered by the Supreme Court in a case of
12. The terms and conditions of the sale must be read as a whole. It must be given a purposive meaning. The word "encumbrance" in relation to the word "immovable property" carries a distinct meaning. It ordinarily cannot be assigned a general and/or dictionary meaning.
13. We may, however, notice some dictionary meanings of the said word as reliance thereupon has been placed by Mr. Sibaji Sen. In Stroud''s Judicial Dictionary of Words and Phrases, 5th Edn., encumbrance is defined as:
being, ''a claim, lien, or liability, attached to property''; and this definition is wide enough to cover the plaintiff''s claim, which was, as assignee for value of a reversionary interest, against a person coming in under a subsequent title.
In Supreme Court on Words and Phrases it is stated that the word ''encumbrance'' means a burden or charge upon property or a claim or lien upon an estate or on the land.
In Advanced Law Lexicon, encumbrance is defined as:
An infringement of another''s right or intrusion on another'' property.
In Black''s Law Dictionary encumbrance is defined as:
Any right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee.....
Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of the Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance, thus, must be a charge on the property. It must run with the property. If by reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance.
23. Prosecution of a person by subjecting him to criminal trial is a serious matter and in view of the discussion as above, this Court is of the considered opinion that institution of criminal case against the petitioners is abuse of the process of law and interference u/s 482 of the Code has therefore become imperative.
24. In the result, the FIR and the criminal proceedings against the petitioners are quashed and hereby set aside. The petition is accordingly allowed.
