ORISSA HIGH COURT: CUTTACK
CRLMC No. 2136 of 2008
This is an application under Section 482 of the Code of Criminal Procedure.
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Benu Kumar Ghose ....... Petitioner
-Versus-
Harekrushna Mahasuara ....... Opp. Party
For Petitioner: M/s. Bigyan Kumar Sharma,
A.K.Mohapatra
and R.K.Sahu.
For Opp. Party: M/s. B.N.Das.
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.K.PATEL
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Date of Judgment: 21.4.2010
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B.K.Patel, J. Petitioner, who is accused in I.C.C.No.316 of 2007 instituted
by opposite party-complainant in the court of S.D.J.M., Puri, has filed
this application under Section 482, Cr.P.C. for quashing the order dated
9.10.2007 by which cognizance of offences under Sections 406 and 420,
I.P.C. was taken and process was issued for his appearance.
2. Complainant’s case is that the accused executed an
agreement for sale of his undivided share in the property as described in
the schedule to the agreement and with regard to which Civil Suit
bearing C.S.No.148 of 2003 and I.A. No.114 of 2003 for injunction on
the ground of preferential right are subjudice in the court of Civil Judge
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(Senior Division), Puri. In terms of the agreement, the complainant
paid instalment of Rs.50,000/- to the accused. Thereafter,
the complainant sent a letter to the accused to come to Puri to execute
sale deed on receipt of balance consideration amount of Rs.3,25,000/-.
The accused deliberately returned the letter. Therefore, the complainant
sent pleader notice, which was received by the accused on 3.2.2006.
Said letter was also cunningly returned by the accused. Thus, accused
in stead of complying with the condition in the agreement to execute
sale deed within two months, has cheated the complainant for
Rs.50,000/-. On the other hand accused in his reply to the pleader
notice stated that advance amount of Rs.50,000/- has been forfeited.
On the basis of such averments it was asserted by the complainant that
the accused is liable to be proceeded for commission of offences under
Section 406, 420 and 506, I.P.C. On receipt of complaint petition,
statement of the complainant was recorded under Section 200, Cr.P.C.
and enquiry was conducted under Section 202, Cr.P.C., in course of
which one witness was examined. On the basis of averments made in
the complaint petition, the statement of the complainant and the
statement of the witness, the impugned order was passed.
3. It was contended by learned counsel for the petitioner that
the petitioner has a share in his ancestral property situated at Puri. By
agreement dated 19.4.2004 the petitioner agreed to sale his undivided
share over the property to the complainant for Rs.3,75,000/-. As per the
terms and conditions of agreement, the opposite party paid Rs.50,000/-
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as first instalment and the balance amount of Rs.3,25,000/- was
payable on or before 18.6.2004. Despite repeated requests made
by the petitioner, the opposite party failed to pay the balance amount for
which the petitioner suffered loss. In stead of instituting appropriate
proceeding in Civil Court, the petitioner has maliciously instituted I.C.C.
316 of 2007, though the dispute between the parties is civil in nature. It
was argued that plain reading of the complaint petition clearly shows
that petitioner’s grievance relates to alleged violation of agreement for
sale executed by the parties. Even if averments made in the complaint
petition are accepted on face value, the same do not indicate
commission of offence of either cheating or misappropriation. In
support of his contentions, learned counsel for the petitioner relied upon
decisions of Hon’ble Supreme Court in V. Y. Jose & Anr. V. State of
Gujarat & Anr.: (2009) 42 OCR (SC) 488 and Devendra & Ors. v.
State of U.P. & Anr.: (2009) 43 OCR (SC) 680, and of this Court in
Lilasons Breweries Limited & another v. Sujata Manjari Pati:
(2009) 43 OCR 5.
4. In reply, it was contended that the petitioner took
Rs.50,000/- from the opposite party without any intention to transfer
any property to the opposite party. In fact the petitioner did not have
any transferable right over the property described in the schedule to the
agreement for sale. In spite of steps taken by the opposite party to pay
balance amount towards consideration, the petitioner did not come
forward to execute the sale deed. Therefore, it is obvious that the
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petitioner never had any intention to sell his share in the property to the
opposite party. However, he induced the
opposite party to pay to him Rs.50,000/- on false pretext.
5. In course of hearing, learned counsel for the petitioner
produced in Court copy of the agreement for sale dated 19.4.2004
executed by the petitioner on the first part and the opposite party on the
second part. Material part of the agreement containing the terms and
conditions read as follows:
“W H E R E A S the First party is one of the owners of the
property mentioned in Schedule below:-
AND WHEREAS the said Vendor has agreed to sell his
undivided share of the property mentioned in the Schedule
below at Puri in consideration of the sum of Rs.3,75,000/-
(Rupees three lakhs seventy five thousand) only to the
purchaser;
AND WHEREAS the Vendor has received a sum of
Rs.450,000/- (Rupees Fifty thousand) only by instalment from
the purchaser for sale and transfer the said undivided share of
the property mentioned in the Schedule below at Puri:
NOW THIS AGREEMENT WITNESSETH AND IT IS
HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO
as follows:
1. The purchaser shall pay the balance amount a sum of
Rs.3,25,000/- (Rupees Three Lakhs twenty five thousand) only
to the vendor at the time of Registration of the said undivided
share of the said property in favour of the purchaser by a Sale
Deed within two months from the date of this Agreement i.e.
18.6.2004.
2. The purchaser shall pay the balance amount of money
within two months from this Agreement i.e. on 18.6.2004
otherwise the instalment money i.e. Rs.50,000/- (Rupees Fifty
thousand) only will be forfeited and the said agreement will be
cancelled.”
6. It is obvious that the petitioner explicitly agreed to sale his
undivided share in the property mentioned in the schedule to the
agreement in his capacity as one of the owners for a total consideration
of Rs.3,75,000/-. It is also obvious that petitioner had already received
sum of Rs.50,000/- by the time the agreement was executed. It was
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further stipulated that the petitioner would execute registered sale deed
in respect of his undivided share over the property and the
opposite party will pay to the petitioner Rs.3,25,000/- on or before
18.6.2004. In case opposite party failed to pay the balance amount on or
before 18.6.2004, he shall forfeit the installment amount of Rs.50,000/-
and the agreement shall stand cancelled. It is alleged in the complaint
that petitioner did not execute the sale deed in spite of the fact that the
opposite party was all along ready and willing to pay the balance
consideration amount of Rs.3,25,000/-. On a bare reading of the
complaint petition, it is found that the petitioner has not made out a
case that at the time of execution of the agreement between the parties
there was dishonest intention on the part of the petitioner. Moreover,
subject matter of agreement for sale is the undivided share of the
petitioner in the property described in the schedule to the agreement.
Petitioner has annexed pleader notice under Annexure-3 and reply
thereto under Annexure-4 to this application. Pleader notice under
Annexure-3 does not bear any date. In the said pleader notice the
petitioner has been impressed upon that in case he failed or neglected to
carry out his part of the contract in terms of agreement dated 19.4.2004
within 15 days from the date of despatch of the notice, the opposite
party shall institute suit for specific performance of the agreement along
with prayer for damages and cost. In the reply to the pleader notice
dated 10.2.2006 under Annexure-4, it has been categorically mentioned
that the pleader notice was received by the petitioner on 3.2.2006.
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While admitting execution of agreement to sale dated 19.6.2004, it has
been mentioned therein that in terms of agreement, installment
amount of Rs.50,000/- paid by the opposite party has been forfeited
due to failure and negligence on the part of the opposite party to pay
balance consideration amount in spite of repeated requests for which
the petitioner suffered loss. Also it has been mentioned that in case the
opposite party wanted to purchase petitioner’s undivided share in the
property, he may contract afresh with the petitioner. Certified copy of
the order sheet in I.C.C.No.316 of 2007 reveals that the complaint
petition was presented in Court on 7.8.2007.
7. Neither the complaint petition nor any of the circumstances
narrated above indicate existence of the dishonest intention on the part
of the petitioner either at the time of execution of agreement or
thereafter. There is absolutely no doubt that the dispute between the
parties relates to allegation of breach of contractual obligation under the
agreement to sale dated 19.4.2004. Existence of dishonest intention is
one of the essential ingredients of offence of cheating punishable under
Section 420,I.P.C. as well as misappropriation punishable under Section
406,I.P.C. It has been reiterated in V.Y.Jose & Anr. (supra) that for the
purpose of constituting an offence of cheating, 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
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making initial promise being absent, no offence under Section 420 of the
I.P.C. can be said to have been made out. It is well settled that 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. High Court can exercise inherent power under Section 482,
Cr.P.C. in order to prevent abuse of the process of Court or otherwise to
secure the ends of justice for quashing the criminal proceeding. A matter
which essentially involves dispute of a civil nature should not be allowed
to be the subject matter of criminal offence, the latter being not a
shortcut of executing a decree which is non-existent. The superior
Courts with a view to maintain purity in the administration of justice,
should not allow abuse of the process of Court. They have a duty in
terms of Section 483 of the Cr.P.C to supervise the functioning of the
Trial Courts. Placing reliance upon the decision in Mahindra &
Mahindra Financial Services Ltd. and another v. Rajiv Dubey, 2006
(Supp.1) OLR 240 this Court has pointed out in Lilasons Breweries
Limited & another (supra) that in the absence of any material
on record or even any allegation to the effect that the accused persons
fraudulently or dishonestly deceived or dishonestly misappropriated or
converted to their own use or used, or disposed of any amount, the
order of taking cognizance was found to have passed without application
of mind. Continuance of the proceeding on the basis of such order was,
therefore, held to be an abuse of process of Court.
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8. In view of the above, the CRLMC is allowed. The impugned
order and the proceeding in 1.C.C. No.316 of 2007 in the court of
learned S.D.J.M., Puri are quashed.
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B.K.Patel,J.
Orissa High Court, Cuttack
Dated 21st April, 2010/sks