PALLAVBHAI BABULAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(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 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.