List has been revised.
Heard learned counsel for the revisionists and learned AGA for the State. No one appeared for opposite party no. 2 and 3.
This revision has been preferred against the order dated 18.3.2005 passed by Judicial Magistrate, Hasanpur, District J.P. Nagar summoning the revisionists for proceeding under sections 406, 417 and 120B of Indian Penal Code.
The brief facts of the present case are that Saurabh Kumar Jindal filed a complaint case under sections 120B, 405, 406, 147, 420 and 427 of IPC before the Judicial Magistrate, Hasanpur on 11.3.2005 for summoning the accused for trial, with the allegations that on 10.6.2004 the revisionists entered into a written agreement with the mother of the complainant, according to which they had to take on rent 238 square meters land of his mother, @ Rs. 6,000/- per month as license fee and a sum of Rs. 36,000/- was to be paid by the revisionists in advance for six months to be adjusted in one year. That the mother of the complainant got executed a sale deed of 238 square meters land in her favour on 14.6.2004 from its owner on payment of Rs. 70,000/- as sale consideration and spent over Rs. 30,000/- in getting the sale deed executed, as she was fully assured of due performance of licence agreement by the revisionists. That after execution of sale deed in favour of the mother of the complainant, despite repeated requests and reminders as well as notice, the revisionists did not respond and they have committed criminal conspiracy to commit offences and have committed cheating and criminal breach of trust, by not performing their part of contract under agreement for licence. That the revisionists did not respond to notices and since due to high position of revisionists, F.I.R could not be lodged in the matter, the mother of complainant sent a letter to Additional S.P., J.P. Nagar, and when no action was taken, complaint is being filed.
The learned counsel for the revisionists argued that at the time of execution of agreement dated 10.6.2004 between the revisionist no.1 and the mother of complainant, she misrepresented herself to be exclusive and lawful owner in possession of the property i.e. plot no. 631 measuring 238 sq. meters, which was agreed to be given on license to the revisionist no. 1 @ Rs.6,000/- per month with an advance payment of rent for a period of 6 months to be adjusted within 12 months period; that undisputedly, the complainant had no right, title possession or interests in the property agreed to be licensed by her as she claims to have purchased it subsequently, by way of registered sale deed dated 14.6.2004; that it is wrong to say that the land was purchased and sale deed was got executed by the mother of complainant on account of any pressure, influence, assurance or inducement by the revisionists or any fraud was played or offences of criminal breach of trust or cheating was committed by them; that at the time of execution of agreement for licence, the mother of complainant was neither owner nor in possession of the plot in question and by wrongfully claiming herself to be the exclusive and lawful owner of the property she played fraud on the revisionists and entered into on written agreement in respect of the property in question on 10.6.2004 which is null and void ab-initio and is a waste paper.
He further contended that, the son of the complainant has no locus standi to file complaint and in any case on the basis of complaint no cognizable offence or triable case is made out against the revisionists as they neither have committed any criminal breach of trust nor have committed any cheating nor have entered into any criminal conspiracy to commit any such offence; that in fact the offence has been committed by the complainant and his mother themselves by way of misrepresentation of facts and playing fraud on the revisionists in execution of licence deed by falsely claiming her to be exclusive and lawful owner in possession of the property; that the alleged agreement of licence dated 10.6.2004 is wrong, illegal and invalid for want of title of the mother of complainant; that in any case even on assuming it to be valid agreement, for the sake of arguments, though it is not so, the complainant may have remedy before civil courts and no offence can be said to have been committed by revisionists; that since the agreement is wrong, illegal and void, the same is not enforceable at law and on its basis, there is no sufficient ground to proceed against the revisionists or summon them under sections 406, 417 and 120B of IPC.
He further argued that on the basis of above illegal agreement despite execution of sale deed in favour of mother of the complainant, subsequently, no wrong can be said to have been committed by the revisionists; that the learned Magistrate acted wrongly and illegally in summoning the revisionists under sections 406, 417 and 120B of I.P.C. without application of mind; that on the basis of material on record the Magistrate ought to have dismissed the complaint by imposing costs on complainant for moving false complaint, as there was no sufficient ground for proceeding against the revisionists or any of them; that no action of revisionists come within the definition of an offence under Sections 120B, 405 or 415 IPC; that the learned Magistrate did not apply his mind to the facts of the case and has passed order for summoning the revisionists in cyclostyled manner; that from the allegations made in complaint as well as the statements of complainant and his witnesses, no case under sections 417, 406, 120B of I.P.C. is made out against the revisionists and the order summoning the revisionists is wrong, illegal and incorrect and is liable to be set aside.
Learned AGA defended the impugned order and argued that the revisionists can seek their discharge under the provisions of Section 245 Cr.P.C; that the revision has been filed with wrong on baseless allegations and is liable to be dismissed.
It is pertinent to mention that as per provisions of law, in a complaint case the Magistrate after considering the statements under section 200 and 202 Cr.P.C., if finds that there is no sufficient ground for proceeding shall dismiss the complaint under section 203 Cr.P.C. and if finds sufficient ground for proceeding, shall issue process to summon the opposite parties under section 204 Cr.P.C. In passing order either under section 203 or 204 Cr.P.C., the Magistrate is required to record his satisfaction for proceeding or not proceeding and is not required to give elaborate reasoning in his order. However in any case the Magistrate is required to apply his judicial mind to the facts of the case in order to record his opinion of finding sufficient ground to proceed or not finding sufficient ground to proceed.
It is settled principle of law that at the stage of section 204 Cr.P.C., only a prima facie case is to be seen by the Magistrate as laid down by Supreme Court in cases of R.P. Kapoor Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal 1992 SCC (Cr. ) 426 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque and another (2005) 1 SCC 122.
Generally speaking, at the time of looking into the correctness of summoning order, the defences may not be looked into and the same is to be assessed only on the averments made in complaint and statements as well as the material provided by the complaint, and the defences may be taken into consideration only in exceptional cases.
It has been held in (2012) 11 SCC 465 in the case of Nupur Talwar vs. CBI and another that "defences may be taken into consideration only if defences raised by accused are factually unassailable and unconvertible and demolish the foundation of prosecution case".
The perusal of complaint, the license agreement dated 10.6.2014 and the sale deed in favour of mother of complainant dated 14.6.2014 obtained subsequently, show that on the date of execution of license agreement the mother of complainant Smt. Chandra Kanta was neither owner nor in possession of the land in question and in absence of right, title and possession was not having either any power or authority to grant license over it to revisionists, or to give possession, or execute license agreement, so the deed of license may not be considered to be a valid agreement in the eye of law. There is no whisper in the complaint or statements of the complainant and his witnesses, that (i) at the time of agreement of license, it was within the knowledge of the revisionists, that the mother of complainant has no right, title or possession over the property mentioned in the agreement and the same shall be purchased by her subsequently or that (ii) upon any fraudulent or dishonest assurance or inducement of revisionists to take the property on license (after purchase of property by her in future) or upon any pressure exerted by them, the mother of complainant was compelled to purchase the land in question and such act was done by revisionists in order to cause damage or harm which amounts to an offence of "cheating", or that (iii) the revisionists failed to discharge trust under a "lawful agreement or contract" with an intention of cause damage or harm to mother of complainant, which amounts to an offence of criminal breach of trust within the meaning of section 415 of Indian Penal Code.
It is pertinent to reproduce the two clauses from the bottom of page 1 and top of page 2 of agreement of license dated 10.6.2004 which are under:-
"Whereas the Licensor has represented that she is the exclusive and lawful owner of the property situated at Plot No. 631 in front of BSNL Tower, Amroha Road, Hasanpur, MBD admeasuring about 238 sq. meters, more specifically mentioned in the schedule 'A' hereunder given and hereinafter referred to as the "said land".
"And whereas the licensor is absolutely seized and possessed of or otherwise well and sufficiently entitled to the said land and is having full power and absolute authority to grant license and authorise the licensor to use the said land."
I find substance in the arguments of learned counsel for the revisionists that in view of the facts mentioned above, for the expenses allegedly incurred by the mother of complainant in getting the sale deed executed in her favour subsequent to the agreement of license, the revisionists may not be held responsible for the assurance allegedly given by them to take it @ 6,000/- per month for installing Escotel Mobile Tower, or for causing any damage or harm to the mother of complainant who herself by misrepresentation made the revisionists to believe that she was exclusive and lawful owner in possession of the plot in question and executed the agreement, mentioning a wrong facts therein about her ownership and authority, despite full knowledge of its being incorrect.
In the circumstances when wrong statement of facts was given by mother of complainant herself, only she may be liable and there is nothing to show as to how the revisionists can be held responsible for any criminal breach of trust, or cheating or for criminal conspiracy to commit an offence under sections 406, 420 and 120B IPC, on the basis of above invalid agreement.
In Devendra and others Vs. State of U.P. and another 2009 (67) ACC 886, Hon'ble the Apex Court has considered the civil wrong and criminal wrong and has held as under:-
"We may, however, notice that the said decision has been considered recently by this Court in Mahesh Choudhary v. State of Rajasthan & another, 2009 (4) SCC 66 wherein it was noticed:
"Recently in R. Kalyani v. Janak C. Mehta and Ors. JT 2008 (12) SC 279 this Court laid down the law in the following terms:
9. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed, no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
(10) It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.
In Inder Mohan Goswami and another Vs. State of Uttaranchal and others 2008 (60) ACC 1 Hon'ble the Apex Court has held as under::-
"The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a Civil Court of competent jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the Court."
In Hira Lal and others Vs. State of U.P. and others 2009 (66) ACC 28 Hon. the Apex Court has held :-
"The question as to whether the transactions are genuine or not would fall for consideration before the Civil Court as indisputably the respondent No. 3 has filed a civil suit in the Court of Civil Judge, Gautam Budh Nagar wherein allegedly an interim injunction has been granted. What was the share of the respective co-sharers is a question which is purely a civil dispute; a criminal court cannot determine the same."
In Harshendra Kumar D. Vs. Rebatilata Kolley and others (2011) 3 SCC 351, Hon'ble the Supreme Court has held that "in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstances, can be looked into by the High Court In exercise of its jurisdiction under section 482 or for that matter in exercise of revisional jurisdiction under section 397 of the Code."
In Indian Oil Corporation Vs. NEPC India Ltd. and others (2006) 6 SCC 736, Hon'ble the Apex Court considering the judgment of Hridaya Ranjan Prasad Verma has observed as follows:-
In Hridaya Ranjan Prasad Verma, this Court held :
"On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section 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 not fraudulent or dishonest.
In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. 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 fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
In Mohd. Ibrahim and others Vs. State of Bihar and another (2009) 8 SCC 751, the Hon'ble Apex Court has held that if what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted. The criminal court's have duty to cheque abuse of process and should ensure that criminal proceedings are not misused for settling scores or pressuring parties to settle civil dispute.
In any case on the basis of agreement the licensor may have civil remedy subject to the validity of agreement in question, and though availability of civil remedy does not bar criminal proceedings, but if availability of such civil remedy itself is doubtful for want of a valid agreement, in the complaint case based on such a invalid agreement may also not proceed.
In view of above mentioned facts on record I am of the opinion that, the civil dispute between the parties has been given a criminal colour and when the agreement of license dated 10.6.2004 is invalid for want of title of licensor on date of agreement and the agreement is not enforceable at law, the complaint on the basis of such an invalid agreement may not be maintained. The complaint does not disclose any act of cheating or fraudulent inducement by the revisionists, rather it reflects so on the part of the mother of the complainant, who without having any right, title, authority or possession over the property in question, entered into agreement, pretending her to be having full authority to grant license to use said land by revisionists.
The material on record shown that the learned Magistrate has failed to note that at the time of execution of agreement of license the mother of complainant had no right, title, possession or interest over the land to be given on license as the sale deed in favour of licensor was executed subsequently. It also failed to consider as to whether the actions or inactions if any of the revisionists forms an offence under sections 406, 417, 120B of IPC, or as to whether there is sufficient ground for proceeding against revisionists for offences under above sections. The impugned order has been passed in cyclostyled manner without considering the material on record and has been passed without proper application of judicial mind to the facts of the case.
In view of the discussions made above, I find that in passing the impugned order of summoning the revisionists for the offences under sections 406, 417 and 120B I.P.C. the learned Magistrate has failed to consider that licensor was not rightful owner of land in question at the time of execution of license agreement and also failed to consider that the license agreement was not a lawful agreement. The impugned order has been passed without considering the validity of agreement and as to whether any act of revisionists comes within the category of, or amounts to an offence punishable under sections 406, 417 and 120B IPC, on the basis of averments made in complaint and in view of wrongful conduct of mother of complainant and has been passed in cyclostyled manner without due application of judicial mind. In view of the discussions made above the impugned order is wrong, illegal and incorrect and is liable to be set aside, and allowing the revision, the case is liable to be sent back to Magistrate for afresh disposal of complaint case after taking into consideration the observations made in the body of judgment.
Revision is allowed accordingly. The impugned order dated 18.3.2005 passed by Judicial Magistrate Hasanpur, District Jyotiba Phule Nagar summoning the revisionists under sections 406, 417 and 120B I.P.C., is set aside.
Let a copy of this order be sent to the court below, which shall decide the complaint case afresh, after taking into consideration the observations made in the body of judgment.
However the findings if any, in the body of judgment 'above' shall not have any binding or adverse effect on right of either party.
Order Date :- 15 .7.2014 Dhirendra/-