1. In both these petitions, the respective petitioners seek quashing of the proceedings of the first information registered vide Kalupur Police Station I-C.R. No.189/2008, hence the same were heard together and are disposed of by this common judgment.
2. The respondent No.2 herein lodged a first information report being Kalupur Police Station I-C.R. No.189/2008 against the present petitioners alleging commission of the offences punishable under sections 406, 420 and 114 of the Indian Penal Code. The gist of the allegations are that the accused No.1 through the accused No.2 agreed to sell the land of his ownership situated at village Kalana, Taluka Sanand, Khata No.98 and 100 in all admeasuring 24180 square metres to the first informant for a consideration of Rs.42,00,000/- and despite the fact that the entire amount had been paid through cheques and cash the accused No.1 has not executed the sale deed till date and thereby both the accused in connivance with each other have committed the offence of cheating and criminal breach of trust.
3. Mr. Bhargav Bhatt, learned advocate appearing on behalf of the petitioner in Special Criminal Application No.264/2009 and Mr. Rajesh Dewal, learned advocate appearing for the petitioner in Special Criminal Application No.303/2009 submitted that the first information report is in the nature of a false and malicious prosecution and that even on the allegations made in the same, no offence as alleged is constituted and as such the first information report deserves to be quashed. The learned counsel invited the attention of the court to the allegations made in the first information report to submit that despite the fact that the first informant had instituted a suit for specific performance of the purported banachitthi, the said fact had been suppressed in the first information report. Referring to the plaint of Special Civil Suit No.426/2008 instituted by the first informant, it was pointed out that there are various discrepancies in the version given in the first information report and that stated in the plaint. It was submitted that prior to the lodging of the first information report in question, it was the petitioner Parasharbhai Arvindbhai Hirakani who had lodged a first information report against the first informant being Shahpur Police Station I-C.R. No.168/2008 alleging commission of the offences punishable under sections 465, 468, 471 and 114 IPC on the ground that the first informant had fabricated the above referred 'banachitthi' on the basis of which the suit had been instituted. It was contended that the present first information report is nothing but a counterblast to the first information report lodged by the petitioner herein.
3.1 Inviting attention to the offences alleged against the present petitioners, it was submitted that for the purpose of constituting an offence of cheating under section 420 IPC, the existence of a dishonest intention has to be there right from the inception. Referring to the allegations made in the first information report, it was pointed out that even as per the allegations made therein, it is the case of the first informant that the petitioner had subsequently developed a dishonest intention upon coming to know of the establishment of the Nano project at Sanand. Under the circumstances, the offence under section 420 IPC is clearly not made out. Attention was also invited to the fact that in the first information report it has been stated by the first informant that pursuant to the deal entered into between the petitioner and the first informant, the petitioner had given his consent for issuance of public notice and had handed over copies of the extracts of the 7/12 records as well as the certified copies of the maps prepared by the District Inspector of Land Records. It was submitted that thus, it is apparent on the basis of the averments made in the first information report itself that there was no dishonest intention right from the inception even according to the first informant. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, 2008 (1) G.L.H. 603 wherein the court had held that on a reading of section 415 IPC which defines cheating, 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. Reliance was also placed upon the decision of the Supreme Court in the case of V.Y. Jose and another v. State of Gujarat and another, (2009) 3 SCC 78, as well as the decision of the Supreme Court in the case of Harmanpreet Singh Ahluwalia and Others v. State of Punjab and Others, (2009) 3 SCC (Cri.) 620, for the proposition that it is settled law that for establishing the 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. From his making failure to keep promise subsequently, such a culpable intention right at the beginning, that is, at the time when the promise was made cannot be presumed. It was submitted that in the facts of the present case, the condition precedent namely, dishonest intention should exist at the inception. It was submitted that in the present case, the petitioner has allowed the advocate for the first informant to make a search for title of the property and has also admitted the receipt of Rs.9 lakhs, under the circumstances, it cannot be said that there was any dishonest intention right from the inception so as to attract the provisions of section 420 IPC. It was submitted that insofar as the payment of balance amount is concerned, which is stated to have been paid in cash, there is no evidence in support thereof. Thus, the payment itself is doubtful.
3.2 Insofar as the invocation of section 406 IPC is concerned, it was submitted that the present case at best is a case of legal contract. The contract itself is subject matter of adjudication before the civil court. It was contended that though the dispute in question is essentially a civil dispute, an attempt has been made to convert it into a criminal action. It was further submitted that during the pendency of the civil suit, the opinion of a handwriting expert was obtained in respect of the 'banachitthi' allegedly executed by the petitioner herein, and it has been opined that the signature of the petitioner therein is forged.
3.3 In conclusion, it was submitted that no offence as alleged under section 420 and 406 IPC can be stated to have been made out on the allegations made out in the first information report; that the first information report is a counterblast to the complaint lodged by the petitioner herein against the first informant. Under the circumstances, the first information report is malafide and vexatious and is an abuse of the process of the court and as such, is required to be quashed and set aside in the interest of justice.
4. Mr. Rajesh Dewal, learned advocate for the petitioner in Special Criminal Application No.303/2009 invited attention to the allegations made in the first information report to submit that insofar as the said petitioner is concerned, the only allegation is that he is a relative of the first informant and a friend of the accused No.1 - Parasharbhai who had introduced the first informant to Parasharbhai and had remained present on various occasions when they had gone to see the land etc. It was submitted that on the allegations made in the first information report, no offence as alleged can be stated to have been made out against the said petitioner inasmuch as there was no duty cast upon the present petitioner to execute any sale deed in favour of the first informant nor had he received any consideration in respect thereof. Under the circumstances, the first information report qua Saurabhbhai is a total abuse of the process of the court and deserves to be quashed and set aside.
5. Vehemently opposing the petitions, Mr. Manav Mehta, learned advocate for the second respondent invited attention to the allegations made in the first information report to submit that the offence as alleged is clearly made out on the averments made therein. It was pointed out that on 7th October, 2008, when a news item was telecast to the effect that the Nano project was being set up at Sanand, the petitioner Parasharbhai had called the first informant on his mobile phone and told him that neither was he going to give him the land nor was he going to return the moneys in question. Thereafter when the first informant talked about the same to Saurabhbhai, he too had taken the side of Parasharbhai and told him to forget the land as well as the moneys. It was submitted that under the circumstances, it is apparent that there was a dishonest intention on the part of the petitioners to cheat the first informant and neither to sell the land nor to return the moneys paid by him. Attention was invited to Annexure R-1 annexed to the affidavit-in-reply made by the respondent No.2 which reveals that the petitioner P.A. Hirakani had given his consent to the advocate for issuance of public notice in respect of the suit land. It was pointed out that in the said permission letter, it was specifically stated that it had been decided to sell the land to Kirtiben Dhaneshkumar Shah. It was submitted that the said letter makes it clear that the petitioner had executed the banakhat and had accordingly issued the consent letter.
5.1 Referring to the decision of the Supreme Court in the case of Inder Mohan Goswami v. State of Uttaranchal (supra), it was submitted that the Supreme Court has made a distinction between two classes of acts. It was submitted that intention has to be read with the first class of acts where the accused had been induced fraudulently or dishonestly to deliver property to any person. Insofar as the second class of acts is concerned, the same would come into play the moment the petitioner refuses to perform his part of the contract and that the requirement of intention to cheat right from inception is not necessary for the second class of acts. It was further submitted that as to whether or not the petitioner has signed the banakhat is a matter of inquiry and that the first information report cannot be quashed on the premise that the petitioner has not signed the same.
5.2 Insofar as the invocation of section 406 IPC is concerned, it was submitted that the first informant has entrusted moneys to the petitioner under the belief that he would execute the sale deed in his favour. However, the petitioner has neither performed his part of the contract nor has he returned the moneys in question and that there is clear breach of the agreement between the parties. It was submitted that on failure of the petitioner to execute the sale deed, the moneys of the first informant would be lying with him, which he refused to return. In case the petitioner does not execute the sale deed, he is required to return the same more particularly, when there is no forfeiture clause in the 'banachitthi'. According to the learned counsel, till the sale deed is executed, the petitioner would have the custody of the moneys handed over by the first informant towards consideration for the sale of the said land and as such, the ingredients of section 406 IPC are clearly made out. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Central Bureau of Investigation, SPE, SIU(X), New Delhi vs. Duncans Agro Industries Ltd., Calcutta, (1996) 5 SCC 591, for the proposition that the expression “entrusted with property” or “with any dominion over property” has been used in a wide sense in section 405 IPC and includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. It was submitted that on the basis of the banakhat executed by the petitioner in favour of the first informant, the first informant had instituted a civil suit for specific performance of the agreement. However, the petitioner had filed a first information report against the first informant herein alleging that the 'banachitthi' was fabricated merely with a view to get out of the liability of specific performance of the contract. It was pointed out that it was only a month after the written statement had been filed disowning the 'banachitthi', that the first information report in question had been filed. It was submitted that today at the stage of quashing it is only the contents of the first information report which would be required to be looked into and that no other documents can be looked into. It was further argued that the question as to whether the balance sale consideration has been paid to Parasharbhai and whether he has received the same or not are questions which would be decided by the civil court and that at present the court has to proceed on the basis that the allegations made in the first information report are correct and that the amount has been paid.
5.3 It was accordingly submitted that the offences alleged in the first information report are clearly made out and as such, there is no warrant for interference by this court in exercise of powers under section 482 of the Code. It was submitted that it is settled legal position that while exercising inherent powers under section 482 of the Code, the same have to be exercised sparingly and carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. That in the facts of the present case, there is no justification for exercise of such powers and hence, the petitions deserve to be dismissed.
6. The undisputed facts in the present case are that pursuant to a deal in respect of the land in question, the first informant gave two cheques one for Rs.5 lakhs dated 10th April, 2008 and another for Rs.4 lakhs dated 22nd April, 2008 to the petitioner Parasharbhai Arvindkumar Hirakani. Subsequently, with the consent of the petitioner Parasharbhai, the learned advocate for the first informant had issued a public notice inviting objections in respect of the said land. Later on the land in question came to be measured and the copies of the extracts of the 7/12 records as well as the certified copies of the maps prepared by the District Inspector of Land Records came to be handed over by the petitioner to the first informant. Thereafter, since the petitioner did not execute the sale deed in respect of the land in question, the first informant instituted a suit being Special Civil Suit No.426/2008 in the court of the learned Principal Civil Judge, Ahmedabad (Rural) for specific performance of agreement to sell and for permanent injunction. It appears that in the proceedings of the said civil suit, the first informant had also moved an application for temporary injunction which came to be rejected by an order dated 8th April, 2009.
7. In the first information report it has been alleged that the petitioners have committed the offence of cheating and criminal breach of trust as contemplated under section 420 and 406 IPC. On behalf of the petitioners, it has been submitted that the ingredients of the said provisions are not satisfied whereas on behalf of the second respondent, it has been contended that the ingredients are clearly satisfied. Under the circumstances, it would be pertinent to refer to the allegations made in the first information report in some detail to ascertain as to whether the offences alleged can be said to be constituted.
8. The allegations made in the first information report are to the effect that the first informant needed land in the area near Sanand, hence, he had talked about the same to his friends and relatives. Thereafter, in March, 2008, a relative Shri Saurabhbhai Kiritbhai Shah (petitioner in Special Criminal Application No.303 of 2009) had told him that his friend Parashar Arvindbhai Hirakani (petitioner in Special Criminal Application No.264 of 2009) had non-agricultural land at Kalana village, Sanand taluka admeasuring 24180 square metres which he wanted to sell. Hence, on 6th April, 2008, he, his younger brother Rajubhai, Saurabhbhai and Parasharbhai had gone to Kalana to see the land. Since the land appeared to be appropriate for the purpose of his business, he had gone with his brother and Saurabhbhai to meet Parasharbhai for the purpose of talking about entering into a deal in respect of the land and accordingly, a deal was settled at Rs.42 lakhs as the price of the land. Thereafter, Parasharbhai had given him copies of extracts of 7/12 records in respect of the land. Subsequently, by way of consideration in respect of the said land, he had issued a cheque dated 10th April, 2008 for Rs.5 lakhs and another cheque dated 22nd April, 2008 for Rs.4 lakhs and handed the same to Parasharbhai at his office in the presence of Saurabhbhai and Rajubhai. Thereafter at the instance of Parasharbhai, he had issued a cheque dated 24th April, 2008 for Rs.1 lakh and another cheque for Rs.2,10,000/- and handed the same over to Saurabh K. Shah. It is further stated in the first information report that thereafter Parasharbhai had asked him to get a 'banachitthi' prepared in respect of the said land and he had got the same prepared through his advocate Navinchandra Maratha. On 24th April, 2008, he and his wife alongwith his brother had gone to Parasharbhai's office at Kalupur and had shown him the contents of the 'banachitthi' and Parasharbhai had, on behalf of M/s. Padmavati Dyes, a partnership firm, as proprietor and owner, signed in their presence on the 'banachitthi' whereafter he and his wife had put their signatures and Rajubhai had signed as the second witness. Parasharbhai was asked to get a person known to him to sign as the first witness, to which he had said that none of his acquaintances are present hence, he would get the same signed later on and that he had placed faith in him. Thereafter, Parasharbhai had called him for measurement of his land and that he had gone there and in his presence, the employee from the office of the District Inspector of Land Records had carried out the measurement, after which Parasharbhai had given him a copy of the map alongwith Hissa Form No.4 in respect of the said land. It is further alleged that he had handed over the entire work in respect of the land to his advocate Navinchandra N. Maratha and that on 20th May, 2008 he had obtained the consent of Parasharbhai for issuing a public notice and accordingly on the basis of the consent letter, he had issued a public notice in the daily newspaper 'Gujarat Samachar' on 23rd May, 2008 and had invited objections in respect of the said land within seven days. Since no objections were received pursuant to the public notice, their advocate Navinchandra N. Maratha had obtained necessary xerox copies of the extracts of 7/12, 8/A and Village form No.6 etc. It is further the case of the first informant that thereafter in instalments, he had paid the balance amount of consideration to Parasharbhai and that Parasharbhai was required to make an affidavit to the effect that there was no encumbrance on the land and that the land was saleable. For this purpose, he had got an affidavit prepared on a stamp paper of Rs.20/- and had handed over the same to Parasharbhai however, he did not make such affidavit. For this reason, the Solicitor had not issued the certificate and hence, the sale deed in respect of the said land could not be executed. It is further the case of the first informant that he had time and again asked Parasharbhai to make the affidavit however, on one or the other pretext, he had not made the affidavit and on 7th October, 2008, there was a news telecast to the effect that the Nano project was to be established at Sanand. After watching the said telecast, on the same day, Parasharbhai had called him on the mobile phone and informed him that he did not want to sell the land and that even the moneys paid towards the land would not be returned. He, therefore, had talked to Saurabhbhai who was a go-between for the deal about the same however, he had taken the side of Parasharbhai and asked him to forget the sale deed as well as the amount of Rs.42 lakhs which he had paid in respect thereof whereupon he had felt that Parasharbhai and Saurabhbhai had developed a dishonest intention upon the coming of the Nano project at Sanand and the prices of land having increased and that they would sell the land without his knowledge. Therefore, he had got a public notice issued on 9th October, 2008 through his advocate informing the public at large that nobody should deal with in respect of the said land. Subsequently, on 10th October, 2008, Parasharbhai issued a public notice in the newspaper 'Gujarat Samachar' to the effect that the public notice issued by the first informant on 9th October, 2008 was false. It is accordingly alleged that Parasharbhai Arvindbhai had through Saurabhbhai K. Shah sold the land bearing Khata No.99 and 100 at Kalana village, taluka Sanand admeasuring 24180 square metres to him, the price of which had been paid by way of cheque and cash and that he had not executed the sale deed till date. In the backdrop of the aforesaid allegations, the first informant had alleged commission of the offence under sections 406, 420 and 114 of the Indian Penal Code.
9. The Supreme Court in the case of All Cargo Movers (India) Private Limited v. Dhanesh Badarmal Jain, (2007) 14 SCC 776 has held thus:
“16. xxxx. Breach of contract simpliciter does not consti- tute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint pe- tition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said al- legations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admit- ted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jur- isdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice.
Since it is an admitted position that the first informant has instituted the above referred suit being Special Civil Suit No.426/2008, it is permissible for the court to look into the averments made in the plaint.
10. A perusal of the plaint presented in the aforesaid civil suit reveals that the plaintiff is a company which has instituted the suit through its directors- viz., (i) Kirtiben Dhaneshkumar Shah and (ii) Dhanesh Chandulal Shah (the first informant). It is the case of the plaintiff that land bearing Khata No.99 of survey No.236 of Mouje Kalana Taluka Sanand admeasuring 14180 square metres and land bearing Khata No.100 of survey No.236 admeasuring 10000 square metres is of the ownership of the defendant (accused No.1). Since the said land was converted into non-agricultural land for industrial purpose and since the plaintiff required land for the purpose of his factory, it was decided to sell the property for a sum of Rs.42,00,000/- and in that regard a banachitthi (agreement to sell) came to be executed between the parties on 24th April, 2008 at Ahmedabad. In terms of the main conditions of the banachitthi (a) the duration of the banachitthi was nine months, and (b) at the time of executing the banachitthi the plaintiff had given cheques drawn on the HSBC Bank, Maradia Plaza, C.G. Road Branch dated 10th April, 2008 for Rs.5,00,000/-, dated 22nd April, 2008 for Rs.4,00,000/- and a cheque drawn on Indian Bank dated 24th April, 2008 for Rs.1,00,000/-. Thus in all Rs.10,00,000/- have been paid in terms of the banachitthi. For the purpose of obtaining clear, marketable right and title in the said property, a title clearance notice had been published through their advocate Mr. Maratha and that the defendant had given a consent letter for issuance of such notice to their advocate. The said deal had materialized through the plaintiffs’ relative Saurabhbhai and as per the instructions of the defendant the plaintiffs had given a cheque dated 29th July, 2008 drawn on Indian Bank for a sum of Rs.2,10,000/- as well as cash amount of Rs.90,000/- and Rs.90,000/- in all Rs.3,90,000/- to Saurabhbhai and thereafter they had paid the defendant the balance amount of Rs.28,10,000/- by 1st October, 2008 and on the same day, that is 1st October, 2008 the defendant had handed over the possession of the suit property to them and since then the plaintiffs are the owners and possessors of the suit property. After execution of the banachitthi with the consent of and in the presence of the defendant the suit property was got measured through the District Inspector of Land Records and map was also prepared. At the time when the banachitthi came to be executed, the defendant had not informed them that the Chharodi, Shiyawada, Mankol road would be passing through the said property and had concealed the said information from them. Since the plaintiffs’ daughter is residing at London and the plaintiffs often go to London and as the entire amount of consideration had been paid, the plaintiffs had on several occasions personally asked the defendant to execute the registered sale deed and at all times the defendant had shown willingness to execute the same but for some undesirable reason and circumstances the defendant had not executed the sale deed in favour of the plaintiffs and that there was no valid reason or circumstance for the defendant not to execute the registered sale deed. It is further the case of the plaintiffs that after the plaintiffs having entered into a deal in terms of the banachitthi in respect of the suit property along with the construction thereon, and after the possession of the suit property came to be lawfully handed over to the plaintiffs on 1st October, 2008, in the vicinity of the said property TATA Motors is going to put up its NANO motors factory and hence the prices of the properties in its vicinity have increased and on account of incitement on the part of the relatives of the plaintiffs that the defendants can get more money, the defendant is avoiding executing the registered sale deed and is threatening the plaintiff No.2 in person as well as on his mobile phone regarding transferring the said property to third parties and with the malafide view to extract more money and blackmail the plaintiffs, the defendant is not executing the registered deed. In paragraph (8) of the plaint it has, inter alia, been stated that the last promise to execute the registered sale deed was made on 1st October, 2008 whereby the plaintiffs were assured that the registered sale deed would be executed on 7th October, 2008 despite which the defendant is not executing the registered deed and is daily threatening the plaintiff No.2 on his mobile that he would transfer the property to third parties. In the cause of action paragraph, it has also been stated that the plaintiff has lodged a complaint at the Sanand Police Station. In paragraph 10 of the plaint it has been stated that upon the dishonest intention of the defendants coming to his knowledge with a view to take steps in respect of cheating and breach of trust, the plaintiff No.2 had also given a written complaint to the Sanand Police Station and have not accepted the fact that the defendants had asked the plaintiffs to hand back the possession of the suit property and that they would return the entire amount under the banachitthi and that they have taken steps to get police protection to protect their possession.
11. The said plaint appears to have been filed on or about 13th October, 2008; the defendants appear to have filed their written statement on or about 22nd October, 2008 denying execution of the banachitthi dated 24th April, 2008. Subsequently the petitioner-accused No.1 in the present first information report lodged a first information report on 17th November, 2008 against the first informant alleging that he has fabricated the above-referred banachitthi dated 24th April, 2008 by forging the petitioner’s signature and has used the same as genuine in Civil Suit No.426/08 filed in the Mirzapur Court and thereby committed the offence under sections 465, 468, 471 and 114 of the Indian Penal Code. Thereafter the second respondent lodged the present first information report on 21st November, 2008, that is, after a period of more than a month of the institution of the suit.
12. A conjoint reading of the first information report alongwith the plaint of Special Civil Suit No.426/2008, discloses several discrepancies in the versions given in the first information report and the plaint. In the first information report it is the case of the second respondent that initially two cheques of Rs.5 lakhs and 4 lakhs, dated 10th April, 2008 and 22nd April, 2008, respectively, had been personally handed over to the accused No.1-Parasharbhai at his office on 22nd April, 2008 in the presence of Saurabhbhai and Rajubhai and thereafter a cheque of Rs.1,00,000/- dated 22nd April, 2008 and another cheque of Rs.2,10,000/- had been given to the accused No.2-Saurabhbhai at the instance of Parasharbhai. Thereafter, Parasharbhai asked the first informant to get the banachitthi prepared and hence he had got the banachitthi prepared through his advocate on 24th April, 2008 and had gone along with his wife and his brother at Parasharbhai’s office where the same was signed by the parties and his brother Rajubhai as witness No.2. Insofar as the plaint of the civil suit is concerned, it has been stated that at the time of execution of the 'banachitthi', the first informant had given cheques of Rs.5 lakhs, Rs. 4 lakhs and Rs.1 lakh dated 10th April, 2008, 22nd April, 2008 and 22nd April, 2008 totalling to Rs.10 lakhs. It is further stated therein that a cheque of Rs.2,10,000/- had been given to Saurabhbhai on 29th July, 2008 and then Rs.90,000/- had been given and thereafter another Rs.90,000/- had been given in cash, in all, Rs.3,90,000/- had been given to Saurabhbhai at the instance of the defendant- Parasharbhai. Thus, in the first information report in all Rs.12,10,000/- are stated to have been paid to the accused No.1 and 2 through cheques, in the civil suit it has been stated that after the execution of the banachitthi a cheque of Rs.2,10,000/- and cash amount of Rs.90,000/- and Rs.90,000/- in all Rs.3,90,000/- had been paid to Saurabhbhai at the instance of the defendant and that subsequently the balance amount had been paid in cash by 1st October, 2008.
13. In the first information report, it is stated that after the total amount of consideration had been paid to Parasharbhai, he was to make an affidavit to the effect that there was no encumbrance upon the land and that the land was saleable and as Parasharbhai despite several requests did not make the affidavit, the Solicitor could not issue a certificate and therefore, the sale deed could not be executed and that despite several requests, Parasharbhai did not make the affidavit and that on 7th October, 2008 when the news was telecast to the effect that Tata project had been established at Sanand, Parasharbhai called the first informant on telephone and informed him that he did not want to sell the land nor would he return the amount. In the civil suit, it is the case of the first informant plaintiff that after execution of the 'banachitthi' with the consent of the petitioner – defendant, a map of the site was got prepared by the District Inspector of Land Records. It is further stated in the plaint that subsequent to the payment of the amount of consideration, the plaintiff - first informant had on several occasions requested the petitioner - defendant to execute the sale deed and that he had shown his willingness to do so but for some undesirable reason and circumstance, he had not executed the registered sale deed. It is also stated in the plaint that on 1st October, 2008 when the balance amount of Rs.28,10,000/- was paid to the defendant, on the same date, the possession of the property came to be handed over to him. However, in the adjoining property, a factory of Tata Nano was to be set up due to which the prices of the adjoining properties had increased. On account of instigation by the relatives of the plaintiff that the defendant would get more money, the defendant was avoiding executing the deed or was giving some excuse or the other and was giving the plaintiff No.2, that is, the first informant threats on his mobile phone of transferring the property to third parties for a higher price and with a view to extract more money is blackmailing the plaintiff and not executing the registered sale deed. That the last promise to execute the registered sale deed was made on 1st October, 2008 whereby the plaintiffs were assured that the registered sale deed would be executed on 7th October, 2008 despite which the defendant is not executing the registered deed and is daily threatening the plaintiff No.2 on his mobile that he would transfer the property to third parties. Hence, the suit for specific performance of the 'banachitthi' and permanent injunction had been instituted.
14. Thus, it is apparently contradictory statements that have been made in the first information report and the civil suit inasmuch as in the first information report, it is alleged that on 7th October, 2008, when the news was telecast to the effect that Tata Nano project was to be established at Sanand, the petitioner Parasharbhai called the first informant on his mobile phone and told him that he would not give him the land nor would he return the moneys paid towards the land which is the principal allegation made in the first information report whereas, in paragraph 6 of the plaint it has been stated that since the entire amount had been paid, on several occasions the plaintiffs had personally requested the defendant to execute the registered sale deed and he (the defendant) had shown his willingness to do so, however for some undesirable reason and on account of circumstances, the defendant had not executed the sale deed. In paragraph 8 of the plaint it has been stated that last promise was made on 1st October, 2008 to execute the registered sale deed on 7th October, 2008 despite which the defendant was threatening the plaintiff No.2 on his mobile telephone that he would sell the land to third parties. It may be pertinent to note that according to the plaintiffs the entire amount was paid by 1st October, 2008 on which date possession of the land was handed over to them and it was promised that on 7th October, 2008 the registered sale deed would be executed. In the entire plaint there is not even a whisper that the plaintiff has refused to execute the sale deed or that he has at any point of time threatened the plaintiffs that he would neither execute the sale deed nor return the amount paid by way of consideration.
15. Besides, for the reasons that follow the allegations made in the first information report appear to be absurd on the face of it. In terms of the banachitthi the registered sale deed was to be executed upon payment of the entire amount of consideration. As per the say of the plaintiffs the total amount of consideration was paid by 1st October, 2008 on which date the possession of the suit property was handed over to them. Thus, till, 1st October, 2008 there was no question of executing any registered sale deed, as the total consideration had not been paid till that date. As noted earlier in the plaint it has been stated lastly on 1st October, 2008 that the defendant had promised to execute the registered sale deed on 7th October, 2008 however, they did not execute the sale deed and had told the plaintiffs on mobile phone that as the prices of the land have increased on account of setting up of NANO motors in the vicinity, the sale deed was not executed. Under the circumstances, the say of the plaintiffs that on several occasions they had requested the defendants to execute the sale deed and that they were willing to do so but for some reasons did not execute the same appears to be on the face of it absurd, inasmuch the suit came to be instituted on or about 13th October, 2008, that is, five days after 7th October, 2008.
Moreover, the duration of the banachitthi is nine months from 24th April, 2008, that is, till 23rd January, 2009 which makes the version of the plaintiffs even more unbelievable, inasmuch as even if the say of the plaintiffs is accepted as true and correct, the amount of consideration came to be paid only on 1st October, 2008 and the duration of the banachitthi is till 23rd January, 2009, under the circumstances, on 13th October, 2008 when the suit came to be instituted or on 2nd November, 2008 when the first information report came to be registered, it cannot be said that there is any offence of cheating or criminal breach of trust, inasmuch as the time for performance of the promise in terms of the banachitthi has not yet elapsed. It may be pertinent to note that the petitioner-accused No.1 has denied execution of the banachitthi and had lodged a first information report against the plaintiff No.2 alleging that the banachitthi is forged and fabricated. However, if the banachitthi were accepted to be genuine, on the date of registration of the first information report no offence as alleged can be stated to have been made out.
16. Examining the provisions of the Indian Penal Code which have been invoked against the petitioners in the aforesaid backdrop, reference may first be made to the decisions of the Supreme Court in this regard. In the case of Harmanpreet Singh Ahluwalia vs. State of Punjab (supra) the Supreme Court has held 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 the failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under section 420 of the Penal Code can be said to have been made out. In the facts of the present case, as noted hereinabove, there is no allegation in the first information report to the effect that right from the inception, the petitioner accused had fraudulent or dishonest intention. The case of the first informant is to the effect that upon it coming to the knowledge of the petitioners that the Tata Nano project is to be established at Sanand and the prices of land increasing, the petitioners had developed a fraudulent and dishonest intention and had not executed the sale deed. The basic ingredient for invoking the provisions of section 420 namely, the existence of fraudulent and dishonest intention right from the inception is, therefore, clearly missing. Under the circumstances, the provisions of section 420 IPC would clearly not be attracted in the present case.
17. As regards the distinction which is sought to be drawn by the learned advocate for the second respondent to the effect that there is a distinction between two classes of acts under section 415 IPC by placing reliance upon the contents of paragraph 42 of the decision of the Supreme Court in the case of Inder Mohan Goswami vs. State of Uttaranchal (supra), the same does not, in any manner, support the case of the first informant inasmuch as after referring to the two classes of acts, the Supreme Court has held that from the mere failure to subsequently keep a promise, one cannot presume that the accused all along had a culpable intention to break the promise. The Supreme Court has not made any distinction between the two classes of offences inasmuch as, the only distinction drawn by the Supreme Court is that in the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. In the facts of the present case, it cannot be stated that there was any intentional inducement on the part of the petitioner inasmuch as, even in the case of an intentional inducement, the intention is required to be there right from the inception. In the facts of the present case, as noted hereinabove, it is not even the case of the first informant that at the relevant time when the promise was initially made there was no intention on the part of the petitioner not to execute the sale deed in favour of the first informant. Moreover, the facts on record indicate that pursuant to the deal, further steps had been taken by the petitioner. Hence, evidently, there was no intention right from the inception to deceive the petitioner so as to attract the provisions of section 420 IPC.
18. Insofar as the offence under section 406 IPC is concerned, the same contemplates entrustment of property or a dominion over the property which is dishonestly misappropriated or converted by the accused for his use. In the facts of the present case, it cannot be said that any property had been entrusted to the petitioner by the first informant, which has been dishonestly misappropriated or converted by the petitioner to his own use. It has been contended on behalf of the first informant that the moneys paid by way of sale consideration would bear the character of property entrusted to the petitioner and if neither is the registered sale deed executed nor is the amount returned, it would constitute the offence of criminal breach of trust. On a plain reading of the provisions of section 405 IPC in the opinion of this court, payment made towards sale consideration, cannot be said to be property entrusted as envisaged under section 405 IPC so as to constitute an offence under section 406 IPC. Moreover, in the light of the fact that at the time when the first information report came to be lodged the time limit for performance of the promises under the purported banachitthi had not expired, hence, even otherwise no offence under section 406 IPC can be said to be constituted.
19. Insofar as the petitioner in Special Criminal Application No.303/2009 is concerned, it is apparent that he has been roped in merely because he was a friend of the accused No.1 Parasharbhai. In this regard it may be noticed that firstly, the said petitioner is not the owner of the land in question nor does he have any right, title or interest in the same; secondly, he has not held out any promise to the first informant as he is not a party to the purported agreement to sell; thirdly, he was not required to execute, nor could he have executed the registered sale deed in favour of the first informant; and lastly it is not the case of the first informant that the said petitioner was required to return any amount to him. The only reason why he has been roped in appears to be that he was the person who was instrumental in introducing the accused No.1 Parasharbhai to the first informant. Besides the allegation against him is that upon the first informant informing him about the accused No.1 refusing to execute the sale deed or return the amount, the petitioner told him to forget both the land as well as the moneys. It is not the case of the first informant that right from the inception the petitioner in connivance with the accused No.1 had the intention of cheating the first informant, so as to fall within the ambit of section 420 IPC. Insofar as the offence under section 406 IPC is concerned, there is no entrustment to the petitioner which is the basic ingredient for invoking the said section. Under the circumstances, in the absence of the ingredients which constitute the offence under section 406 IPC, no case is made out for invoking the said section. Under the circumstances, insofar as the petitioner Saurabhbhai is concerned, the first information report is clearly an abuse of the process of law.
20. A perusal of the first information report makes it apparent that though the first informant has used the choicest expressions such as cheating, criminal breach of trust, he has not made any concrete allegations against the applicants suggesting commission of any of the said offences. In this regard it may be apposite to refer to the decision of the Supreme Court in Vijaya Rao v. State of Rajasthan and another, (2005) 7 SCC 69, wherein it has been held that mere reference to the expressions mentioned in the provision would not disclose commission of an offence, when the ingredients constituting the offence in question are conspicuously lacking. Reading the first information report in its entirety and accepting the allegations made therein to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the first information report. All that is stated is that subsequently upon the news regarding the NANO project being set up in the vicinity being broadcast, the accused No.1 on account of rise in the prices of land was not executing the registered sale deed and was also refusing to return the amount of consideration paid to him. Therefore, the basic postulate of dishonest intention at the inception in order to deceive the first informant is not made out even accepting all the averments made in the first information report at face value. In such a situation continuing the criminal proceeding against the accused will be an abuse of the process of law warranting invocation of the inherent jurisdiction of this court under section 482 of the Code.
21. For the foregoing reasons, the petitions succeed and are, accordingly, allowed. The first information report registered vide Kalupur Police Station I-C.R. No.189/2008 is hereby quashed and set aside. Rule is made absolute accordingly.
Registry to place a copy of this order in the connected petition.
( Harsha Devani, J. ) hki