1. Rule. Heard learned advocate for the parties. The petitioners, who have been named as accused nos. 1 and 2 in the First Information Report being C.R. No. I- 128 of 2011, filed on 27.08.2011 in the Rakhiyal Police Station, Ahmedabad by respondent no.2 for the offences punishable under Sections 406, 420, 506(2) and 294(A) read with Section 114 of the Indian Penal Code on the ground that the accused have received Rs. 53,52,000/- towards sale of land mentioned thereunder, thereafter defrauded them by disowning the same subsequently in proceedings before the Court.
2. The allegations in the F.I.R. could be summarized as under;
It was the say of the complainant before the police that the complainant is in the vocation of buying and selling of land and he himself is a land developer and is also a social worker and a sitting corporater since last five terms and leading his peaceful life. 5 to 6 years ago, in the year 2006, one person namely Methailal Goswami, who is also in vocation of buying and selling of land and resident of the same area, brought two persons namely; Pallavbhai Babulal Shah and Vipul Babulal Shah i.e. respondent nos.1 and 2 in the F.I.R. informed the complainant that they owned 8,000 sq. yard land in T.P. Scheme No.9, plot no.25 at Gomtipur. The land is unencumbered and marketable and has clear title. The respondent went to see the land along with said Shri Motilal who has introduced the accused to respondent no.2. The papers were demanded and thereafter the papers were shown to respondent no.2 and thus assured the respondent no.2 that the land belonged to them. The deal was finalized for Rs. 1,12,00,000/- . Rs. 51,000/- was given in cash and the receipt was to be issued subsequently. The Banakhat i.e. Agreement to Sale was not drawn as little more amount was required to pay for executing agreement to sale. The receipt was thereafter obtained. On 19.06.2006 accused nos.1 and 2 were given Rs.501000/- in cash. On 28.12.2006, Rs. 5 lac's cheque being cheque No. 162452 was issued, drawn on Gujarat Industrial Cooperative Bank in the name of Manubhai Shah. Thereafter a cheque of Rs. 5 lacs being cheque no. 162452 was issued on 30.12.2006, drawn on Gujarat Industrial Cooperative Bank in the name of Manubhai Shah. Thereafter on 02.01.2007 one more cheque of Rs.
5 lacs being cheque no.162454 was issued, drawn on Gujarat Industrial Cooperative Bank in the name of Manubhai Shah. Thereafter on 10.01.2007, Rs.23 lacs in cash was given and again on 12.01.2007 Rs.5 lacs was given by way of cheque being cheque no.162453 in the name of Manubhai Shah. Thereafter on 27.07.2007 Rs.5 lac's was given in cash. Thus, total amount of Rs.53,52,000/- was given to accused nos.1 and 2 and they were requested to make agreement to sale. The agreement to sale was not made. The land was waste and having no compound wall, therefore, accused no.3 requested to make compound wall for which Rs.2 lacs was demanded, which was also paid. The time was running against and no agreement to sale was being executed. Therefore, the complainant was worried and enquired and it came to his knowledge that accused no.3 had filed suit against accused nos.1 and 2. Therefore, complainant also filed Civil Suit being Civil Suit No.2820 of 2009 against the present applicants and others. The Civil Suit filed by accused no.3 was collusive suit, filed with an intention to deprive and defraud the complainant and thus the accused no.1, and 2 with accused no.3 have committed offence of deceiving and cheating. The suit filed by the petitioners was requested to be compromised and, therefore, on 28.01.2012, the accused came to the office of the complainant and abused him and threatened him that he would be killed if no compromise is brought about in the suit and hence the complaint was filed on 26.08.2011 in the form of F.I.R. being C.R. No. I- 128 of 2011, as stated hereinabove.
3. Learned advocate for the petitioners has invited this Court's attention to the fact that the accused in fact have been harassed by the complainant and, therefore, the petitioners had to file proceedings in the form of Civil Suit. In the suit forged documents were produced and, therefore, the petitioners were constrained to file Criminal Case against the accused complainant being Inquiry Case No.01 of 2010 and in that Inquiry Case, the Court of Metropolitan Magistrate, Ahmedabad has ordered inquiry under Section 202 of the Cr.P.C. The same is pending. As the harassment was unbearable, the petitioners were constrained to address communications to the Home Secretary of the State vide their complaints dated 29.12.2009 and 04.02.2010 and thus facts have not been denied in any manner by the respondent no.2 in this petition.
4. Learned advocate for the petitioners has relied upon the decision of the Apex Court in case of State of Haryana And Ors. Vs. Ch. Bhajan Lal And Ors., reported in 1990 SCALE (2) 1066 and laid special emphasis upon the parameters being (e) and (g) in paragraph no.265 and submitted that the allegation per se do not indicate that any offences alleged to have been committed as those allegations themselves would not constitute offence without prejudiced to the aforesaid submission. It was further contended that the narration in itself would persuade this Court to hold that the allegations were absurd so as to discard them on the face of it and, therefore, complaint is nothing but an attempt to harass the present petitioners and such complaint needs to be quashed and set aside by this Court under Section 482 of the Cr.P.C.
5. Learned advocate for the petitioners has relying upon the decision of the Apex Court in case of All Cargo Movers (1) Pvt. Ltd. Vs. Dhanesh Badarmal Jain reported in 2007 (0) GLHEL-SC 39977, contended that the breach of contract would not in itself entail any conclusion or even allegation qua commission of offence and assuming for the sake of argument and without conceding that the payment of money, as alleged is also made, then also at the best it can be said to be entailing civil consequences and it cannot classified to be an offence so as to sat Criminal machinery into motion. The Criminal machinery set into motion amounts to harassment and needs to be deprecated by this Court under Section 482 of the Cr.P.C. The F.I.R. also does not contain any averment with regard to the transaction that the accused nourished intention of deception right from the beginning, which is an essential ingredient required for bringing home the charge of deception and cheating. Thus, the entire case on the face of it can be said to be not disclosing any offence and hence the complaint is required to be quashed.
6. Shri Mukul Sinha, learned counsel appearing for respondent no.2 contended that as per the established principle of law, when the F.I.R. discloses commission of offence, then this Court would not quash the same in exercise of the power under Section 482 of the Cr.P.C.
7. Shri Sinha further submitted that accused-petitioners have refused to sale the land after receiving Rs.53 lacs and odd. Thereafter, they have filed suit through Ashok Modi, who has been accused no.3 in the complaint, by collusion with the accused petitioners to make it appear that the land is disputed and therefore, they do not have to sell the land and they have now denied. They have denied to have got a single pie which clearly show that they want to defraud the respondent with 53 lacs.
8. Learned advocate Shri Sinha further submitted that as a law abiding citizen, complainant was pursuing his remedy, but as the petitioners filed false criminal complaint and when they specifically denied that they have received any money money receipt deprecated to have been given by the petitioners are forged, at that time respondent complainant realized that the entire exercise of the petitioners was to defraud the respondent of the money and they had no intention of selling the land. That is why the criminal complaint of cheating was filed.
9. Learned advocate Shri Shina further submitted that fact remains that the accused have chosen to file criminal complaint in the form of private complaint being Inquiry Case No.01 of 2010 and that is pending for appropriate proceedings, as no process is served upon the present respondents. The respondents were left with no choice but to file criminal complaint in the form of F.I.R. and in this situation when there is a cross complaint, the Court may not quash only one complaint that would amount to permitting the present petitioners' complaint to go on and the respondents' complaint could be quashed. This situation may not be permitted under law. The allegations are contained in both the complaints and, therefore, one complaint may not be permitted to go on and the present complaint may not be quashed. The stand of the State also may be ascertained in respect of both these complaints. The complaint is cogent. It discloses genuine facts and therefore, cannot be quashed.
10. Learned counsel Shri Sinha further submitted that the factum of issuance of receipts and the non executing of the sale agreement or agreement to sale and filing complaint in the Magistrate Court alleging forgery of those receipts and Criminal Court not taking any action on the complaint in itself would be sufficient to persuade this Court in not interfering with the investigation, as this Court under Section 482 would not go into the veracity of the documents etc. The allegations in the F.I.R. are the facts and when these allegations are yet to be investigated, then at this stage Court need not exercise power under Section 482 for quashing the F.I.R.
11. Learned counsel Shri Sinha submitted that the petitioners advocate has failed in pointing out anywhere, as of the two documents named of the complainant figuring anywhere and, therefore, they hardly lend any support to the submission of harassment.
12. Shri Soni learned APP for respondent no.1 submitted that ingredients of offences is made out from the averments made in the F.I.R. and, therefore, the Court may not quash the same.
13. The Court has heard learned advocate for the parties and perused the F.I.R. The following indisputable aspects emerging there from are required to be mentioned before adverting to the rival contention of the parties namely;
(i) The respondent no.2 is said to have been, as per his own say, an elected sitting corporater and he has been elected since five terms consecutively and is also in the vocation of buying and selling of lands and is a land developer himself. These facts need to be borne in mind while examining the F.I.R. and the allegations made thereunder vis-a-vis the prayer for quashment of the same on the ground of improbability and action of retaliation or filing of F.I.R. being an attempt to exert undue pressure.
(ii) The complainant has in the entire F.I.R. indicated that cash amount is paid and cheque amount is also paid. So far as the cash amount is paid except two or three amounts in the initial stage subsequent amount are not said to have been paid to accused nos.1 and 2, but there is a mere averment that amount was paid in cash.
(iii) The complainant has not indicated as to how and in what circumstances the amount came to be paid by issuing cheque in the name of one Shri Manubhai Shah and the cheque amount was paid to Manubhai Shah is not explained or coming forward in any manner in the complaint.
(iv) The entire complaint does not discloses the dates and receipts for payment of amount in cash and receipt for the cheque amount as such.
(v) In the entire complaint nowhere complainant has stated that the accused nourished or had intention right from the beginning to defraud the complainant.
(vi) In the entire complaint the complainant has nowhere stated that the land did not belong to the accused.
(vii) Not only in the complaint, the complainant has not even alleged that land never belong to the accused nor in the reply filed before this Court even remotely suggest that land never belonged to the accused.
(viii) The complainant has not indicated in the complaint that when did he ask or requested the accused to execute the agreement to sale or sale-deed itself.
(ix) The complainant has not mentioned in the entire complaint, as to when did he ever offer the entire amount of consideration so that the accused could be compelled to enter into the sale-deed as the complainant has admitted that the sale price was Rs.1,12,00000/-, as against this the alleged amount of payment is only Rs.53, 52,000/-. The rest of the amount is not offered and no preparedness is coming forward.
(x) The accused no.3 is roped in only to justify the allegation that the suit filed by him against accused nos.1 and 2 was collusive, but as such no other role is attributed to the accused no.3 who has not come before this Court.
(xi) The suit filed by accused no.3 against accused nos.1 and 2 is alleged to be collusive, but that in itself cannot be said to be an act of defrauding the present complainant. The complainant has clearly mentioned in the complaint that he has filed civil suit and in civil suit it is prayed that appropriate relief be granted to him.
(xii) The fact also remains to be noted that the present petitioners have filed criminal complaint being Inquiry Case No.01 of 2010 before the competent Court, wherein allegation is made that the accused has forged documents and produced the same in the suit and therefore, inquiry under Section 202 of the Cr.P.C. is ordered.
14. In view of the aforesaid backdrop the Court is required to examine the submission made on behalf of the parties and against the quashment of the F.I.R. and complaint in question. The Court is of the considered view that principle enshrined in the decision of the Apex Court in case of State of Haryana And Ors. Vs. Ch. Bhajan Lal And Ors. (supra), hardly needs any reiteration and those principles are required to be borne in mind while examining the author of the complaint on account of it being vexatious and/or lacking bonafide. The principle enunciated in the judgment would thus govern the consideration in this case also.
15. The facts narrated hereinabove persuade this Court to hold that the complaint cannot be said to be a complaint filed with a view to bring home the guilt on the part of the so called accused. On the contrary, the averments mentioned in the complaint and the development of events persuade this Court to hold that the complaint is filed with a view to exert undue pressure upon the petitioners, as the requisite averments in complaint itself for leading to commission of offence under Section 420 is lacking, that accused nourished intention of defrauding the complainant and complainant was led to belief in parting with the amount.
16. Assuming for the sake of examining without holding that the complainant did part with Rs. 53,52,000/- and gave it to the petitioners, then also that factum in itself would not constitute offence, as the civil dispute of any nature would not necessarily entail criminal consequences or lead to any inferences towards commission of offence. If such a situation is to be countenanced, then no civil transaction would be saved from such allegations which would result into constant consternation to the citizens. Therefore the principle repeatedly followed by courts in various judgments that the complaint if found to be vexatious and/or filed for exerting pressure, then the same is required to be quashed and set aside, this Court should also accept the said principle in its totality.
17. The close perusal of the entire complaint would unequivocally suggests that there exists dispute of property at the best and that is merely a civil dispute. Had complainant been contending that the land did not belong to the accused and that accused right from the inception had an intention to defraud the complainant and with that intention lured the complainant to part with money, then it would have been required to be viewed differently. But, in the instant case, at no place, complainant has ever doubted or even asserted that the land, subject matter of dispute, never belong to the accused. Rather the stand of the complainant is unequivocally clear that the land, though belong to the accused and though the accused have received sizable sum of Rs. 53,52000/- out of the total consideration amount of Rs.1,12,00,000/-. It is not even an insistence for sell agreement, but insistence for merely agreement to sell. The complainant has not anywhere averred as to when did he ever offered the entire sale consideration. The person like complainant who has been sitting corporater since five consecutive terms and who is claiming himself to be a land developer and person in vocation of selling and buying lands, would ordinarily be vigilant in obtaining pukka stamp receipts and even and agreement to sell which could be enforced in Court of law before parting with sizable amount or almost half of the sale price and consideration to the vendor. The filing of Civil Suit and filing of the complaints by the accused nos.1 and 2 against the complainant in earlier point of time is also point to the fact that there exists preeminently a civil dispute, which is sought to be converted into a criminal offence for exerting undue pressure upon the accused. The principle enunciated by the Court in case of State of Haryana And Ors. Vs. Ch. Bhajan Lal And Ors. (supra) would squarely be applicable to the facts of the present case and, therefore, this Court is of the considered view that the complaint being essentially a civil dispute and obviously it is filed with a view to exert undue pressure and as a retaliation of the fact that complainant himself is facing criminal complaint in the form of Inquiry Case, the same is required to be quashed and set aside. Accordingly, the F.I.R. being C.R. No. I- 128 of 2011 is hereby quashed and set aside. Rule made absolute.
18. Learned Advocate Shri Sinha for respondent no.2, at this stage, requests for staying of this order for a period of five weeks. The request is objected. However, as the stay is inuring in favour of the petitioners, there shall not be any harm in extending the stay order as well as staying of this order also and thus status qua as on date be maintained qua the complaint for further period of five weeks. Thereafter, this order be operating i.e. on or before 20.08.2012.
Direct service is permitted.
Pankaj (S.R.BRAHMBHATT, J.)