1) By this petition under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the petitioner has challenged the order dated 5th November, 2011 passed by the learned 2nd Additional Chief Judicial Magistrate, Mehsana, below Exhibit-1, in Police Inquiry No.68 of 2011, whereby the learned Magistrate has directed issuance of process to the petitioner under sections 406, 420, 504, 506(1) and 114 of the Indian Penal Code.
2) The respondent No.2-original complainant lodged a complaint in the Court of the learned Chief Judicial Magistrate, Mehsana alleging that on 9.5.2010 the complainant had entered into an agreement to sell with the accused in respect of five parcels of land as described in paragraph-3 of the complaint, in all, admeasuring 19 vighas, for a consideration of Rs.1,80,000/- per vigha. Towards execution of the agreement to sell, he had paid 25% of the consideration which came to Rs.6 lakhs on 9.5.2010 in the presence of two witnesses. It was the case of the complainant that though he was ready to pay the entire amount of Rs.18 lakhs in terms of the agreement to sell, the accused were not executing the sale deed in respect of the said land in his favour. It is further alleged that at the time when the accused No.1 had executed the agreement to sell in his favour, the land bearing Block No.393 was standing in the name of Nadia Manubhai Somabhai, Block No.394 was standing in the name of Nadia Shivabhai Ranchhodbhai, Blocks No.395, 396 and 397 were jointly held by both the accused, and Block No.404 was running in the name of Patel Rajendrakumar Kachardas, despite which in the agreement to sell it had been stated that the accused No.1 was the owner and occupier thereof and that he had all rights in the said land and, accordingly, had cheated the complainant.
3) It is further alleged that after the agreement to sell came to be executed and notice for title clearance certificate came to be issued, the accused No.2 who is the joint owner of Block No.395, 496 and 397 raised objections through his advocate and, subsequently, after obtaining money from the complainant had given his consent to the title clearance certificate. Thus, both the accused had in connivance with each other, hatched a conspiracy to recover more amount from the complainant and had executed a false document by way of an agreement to sell and that during the duration of the agreement to sell (five months) though the complainant had time and again shown readiness and willingness to pay the remaining 75% of the consideration in terms of the agreement to sell, the accused on one pretext or the other were not executing the sale deed and, as such, the complainant was constrained to lodge the present complaint.
4) It is further alleged that the complainant on the previous day had met both the accused and asked them to execute the sale deed, whereupon the accused had abused him and had told him that they would never execute any sale deed in his favour nor would they return his money to him and that he may do whatever he can. That if he makes further request, they would get him killed and his dead body would not be found. It is alleged that the accused had threatened him and that they were headstrong persons and, as such, if no steps are taken immediately, there is a danger to the life of the complainant. In the aforesaid background, the complainant has alleged commission of offences punishable under sections 406, 420, 467, 468, 504, 506(2) and 114 of the Indian Penal Code against both the accused, namely, the applicant herein and his brother.
5) The learned Magistrate, after recording the statement of the complainant, directed inquiry to be made through the “B” Division Police Station under section 202 of the Code. Upon receipt of the report dated 3.10.2011 of the Police Sub-Inspector, “B” Division Police Station, the learned Magistrate was of the view that there was sufficient evidence to proceed against the accused and directed issuance of process under sections 406, 420, 504, 506(1) and 114 of the Indian Penal Code. Being aggrieved, the petitioner has filed the present petition challenging the issuance of process qua him.
6) Mr. Y. M. Thakore, learned advocate for the petitioner invited the attention of the court to the allegations made in the complaint to submit that there was no involvement whatsoever of the petitioner herein in the alleged offence. Referring to the agreement to sell executed between the complainant and his brother on 9.5.2010, it was submitted that the petitioner was never a party to the said agreement to sell and that the petitioner being the joint owner of the said land, has no intention of selling the same. Attention was also invited to the report made by the Police Sub- Inspector pursuant to the inquiry under section 202 of the Code, to point out that even in terms of the said report, it is the accused No.1 who had executed the agreement to sell in favour of the complainant and, thereafter, had not executed a sale deed. It was submitted that under the circumstances, the entire complaint insofar as the petitioner is concerned, is false and frivolous and has been filed with the mala fide intention of pressurizing the petitioner to execute the sale deed in favour of the respondent No.2 complainant.
6.1) It was further submitted that from the allegations made in the complaint, it is apparent that the dispute involved in the present case is purely in the nature of a civil dispute and that the complainant instead of instituting a suit for specific performance has chosen a shortcut by lodging the present complaint with a view not only to force the accused No.1, with whom he had entered into an agreement to sell but also to force the present petitioner, to sell the said land to him. It was urged that the complaint being totally vexatious and frivolous insofar as the present petitioner is concerned, the learned Judicial Magistrate was not justified in issuing process against him. Attention was also invited to various statements recorded by the Police Sub-Inspector during the course of the inquiry under section 202 of the Code, to submit that in none of the statements there was any incriminating material against the present petitioner. It was, accordingly, urged that the impugned order dated 5.11.2011 as well as the complaint lodged by the respondent No.2, qua the present petitioner, is required to be quashed and set aside in the interest of justice.
6.2) Reference was made to the statement of one Ramanlal Manilal, recorded on 24.9.2011 to draw the attention of the court to the fact that the said witness had stated that on 1.4.2011 three of them (he and two others including the complainant) were going to meet Gulamnabi (the accused No.1) however, they came across him at Nagalpur Bus Stand whereupon the complainant had asked him to execute the sale deed, whereupon he got incited and started abusing all three of them and had told them that the was not to be given in the present or at any point of time and threatened them that they may do whatever they please. It was pointed out that, thus, even according to the statement of the witness, the petitioner herein was not present at the time of the alleged offence.
7) Opposing the petition, Mr. Subhash Barot, learned advocate for the respondent No.2-complainant submitted that both the accused had hatched a conspiracy, pursuant to which the accused No.1 alone had executed the agreement to sell in favour of the complainant, despite the fact that both the accused were joint owners of the said property. It was submitted that initially when the notice for title clearance was issued, the petitioner herein had objected to the same through his advocate. However, subsequently, after the complainant paid him some amount, he had withdrawn his objections. It was submitted that thus, it is apparent that both the brothers are acting hand-in-glove and, as such, the petitioner herein is equally involved in the commission of the alleged offence. It was further submitted that on the allegations made in the complaint, it is apparent that the offence as alleged is made out against the present petitioner and that pursuant to inquiry carried out by the Police Sub- Inspector under section 202 of the Code, the learned Magistrate has been satisfied that there is sufficient material to proceed against the petitioner in respect of the offence alleged and has issued process. It was, accordingly, urged that the learned Magistrate after due application of mind to the facts of the case, has recorded satisfaction and issued process and, as such, at this stage there is no warrant for any intervention by this court.
8) On a perusal of the allegations made in the complaint, as reproduced earlier, it is apparent that the main grievance of the respondent No.2-complainant is that an agreement to sell came to be executed between him and the accused No.1, who happens to be the brother of the petitioner. Under the terms of the agreement to sell, 25% of the consideration was to be paid upon execution of the agreement to sell and the remaining 75% was to be paid at the time of the execution of the sale deed and upon payment of the remaining 75% of the consideration, the sale deed was to be executed. According to the complainant, Rs.6 lakhs towards 25% of the total consideration was paid at the time of executing the agreement to sell and that despite the fact that he had shown readiness and willingness to pay the remaining 75% of the consideration, viz. Rs.18 lakhs, the accused were not executing the sale deed in his favour. From the allegations made in the complaint, it is apparent that the agreement to sell had been executed between the complainant and the accused No.1 and that the present petitioner, who is the accused No.2, was not a party to the same. Under the circumstances, there is no privity of contract between the complainant and the petitioner herein and, accordingly, there is no question of the petitioner executing any sale deed in favour of the respondent No.2-complainant pursuant to the said agreement to sell. Therefore, it is apparent that the allegations made in the complaint qua the present petitioner, to the effect that petitioner has not executed sale deed in favour of the complainant despite his being ready and willing to pay the remaining 75% of consideration, are misconceived inasmuch as there being no agreement to sell with the petitioner, there is no corresponding obligation to execute a sale deed insofar as the petitioner is concerned. Thus, the very basis of the complaint qua the present petitioner being misconceived, it is apparent that the other allegations as regards commission of the offence under section 504 and 506(2) of the Code have been made merely with a view to implicate the present petitioner in the offence in question.
9) A perusal of the report submitted by the Police Sub-Inspector, “B” Division Police Station, Mehsana, pursuant to the inquiry ordered under section 202 of the Code indicates that insofar as the petitioner herein is concerned, there is nothing incriminating therein. If at all, any offence can be said to have been made out, the same can be said to have been made out only qua the accused No.1, that is, the brother of the petitioner who had executed the agreement to sell in favour of the complainant. However, prima facie, it appears that the entire dispute is in the nature of a civil dispute which has been given the colour of a criminal offence by the complainant, who, instead of approaching the civil court by way of a suit for specific performance of the agreement to sell, has chosen a shortcut by resorting to criminal proceedings and has lodged the complaint in question.
10) As can be seen from the order passed by the learned Judicial Magistrate, process has been issued under sections 406, 420, 504, 506(1) and 114 of the Indian Penal Code against the present petitioner. From the averments made in the complaint, it is apparent that there is no allegation that the petitioner herein had made any false representation to the complainant, acting upon which the complainant had changed his position so as to attract the provisions of section 420 of the Indian Penal Code, nor is there any averment to the effect that there was entrustment of any property to the petitioner so as to invoke the provisions of section 406 of the Indian Penal Code.
11) In the light of the aforesaid discussion, this court is of the view that no offence as alleged in the complaint can be stated to have been made out against the petitioner herein. Under the circumstances, this is a fit case for exercise of powers under section 482 of the code for quashing the complaint. The petition, therefore, succeeds and is accordingly allowed. The impugned order dated 5th November 2011 passed by the learned 2nd Chief Judicial Magistrate, Mehsana, below Exh.1 in Police Inquiry No.68 of 2011 as well as the complaint being Inquiry Case No.68 of 2011, are hereby quashed and set aside qua the petitioner-accused No.2. Rule is made absolute accordingly.
(HARSHA DEVANI, J.) Vahid