GAJANAND Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) THE accused -petitioner has filed this Criminal Writ Petition under Article 226 of the Constitution of India with a prayer to quash the First Information Report No. 254/2011 registered at Police Station Chirawa (District Jhunjhunu) for the offences under Sections 418, 419, 420, 406 and Section 120 -B IPC.

(2.) BRIEF relevant facts for the disposal of this petition are that the respondent -complainant filed a complaint against the petitioner and his brother -Shri Nandlal for the offences under Sections 418, 419, 420, 406 and Section 120 -B IPC with the averment that the petitioner entered into on agreement to sell a Nohra admeasuring 120 ft. X 120 ft. with the complainant on 7.2.2008 in lieu of a total sale consideration of Rs. 27,11,000/ - and received Rs. 7,11,000/ - from the complainant towards part payment of the sale consideration and it was agreed by him that after obtaining the rest of the amount he will execute a registered sale -deed in his favour within a period of a month. It was further averred that on 3.3.2008, the complainant alongwith some other persons went to the petitioner and asked him to execute registered sale -deed in his favour after obtaining rest of the amount and the complainant in presence of the aforesaid persons paid Rs. 15 lacs in cash to the petitioner and it was agreed between them that the rest of the amount would be paid at the time of execution of the sale -deed. It was further averred that the petitioner did not appear on 3.3.2008 before the concerned Sub -Registrar for execution of the sale -deed and, therefore, it was further agreed that the petitioner would appear before the Sub -Registrar on 5.3.2008 and execute the requisite sale -deed, but even then he failed to do so. It was further averred in the complaint that in the month of June 2011 from some reliable source it came into the knowledge of the complainant that a suit is pending between the petitioner and his brother in a Civil Court. It was alleged by the complainant that despite the fact that the suit was pending between the petitioner and his brother in a Civil Court and stay order has also been passed by it, even then the petitioner obtained Rs. 15 lacs from the complainant on 3.3.2008. It was averred that the act of the petitioner and his brother amounts to offences under Sections 418, 419, 420, 406 and Section 120 -B IPC. The complaint so filed was sent for investigation under Section 156(3) Cr.P.C. to Police Station Chirawa and on that basis aforesaid FIR was registered and investigation commenced. In these circumstances, the present writ petition has been filed by one of the accused. It was submitted by the learned counsel for the petitioner that for the disposal of this petition following facts are relevant to be considered by the Court: - -

(3.) IT was submitted by the learned counsel for the petitioner that even if for the sake of arguments the allegations and the averments made in the complaint/FIR are taken on their face value and are accepted to be true and correct in entirety, even then it is clearly revealed that the dispute between the parties is essentially of civil nature as at the most it can be said that the petitioner failed to execute registered sale -deed in favour of the complainant as stipulated between them even after obtaining a part of sale consideration, but the complainant with an ulterior motive to harass and pressurize the petitioner has lodged a false and concocted FIR which is nothing but an abuse of process of law. It was further submitted that on the basis of material made available on record it is clear that the land in dispute came in the exclusive ownership and possession of the petitioner and entry to that effect also made in the record maintained by the Municipal Council but brother of the petitioner without any right managed to cancel that entry which compelled the petitioner to file the aforesaid suit against his brother and the Municipal Council which is being hotly contested by his brother after filing detailed written statement, but the complainant after a lapse of more than three years from the agreement to sell has lodged the FIR although he from the very beginning was in the knowledge of the fact that a civil suit is pending between petitioner and his brother regarding the land in dispute and stay order has also been passed by the Court. It was also submitted that a false averment has been made in the FIR that the petitioner received a further amount of Rs. 15 lacs from the complainant on 3.3.2008. No receipt of any kind has been filed by the complainant in respect of such payment and it is beyond any imagination that he paid such a huge amount to the petitioner without obtaining a receipt for it. This false statement has been made only with an oblique motive to show that the petitioner obtained the aforesaid amount from the complainant although, he was not in a position to execute registered sale -deed in favour of the complainant as dispute has arisen between petitioner and his brother and stay order has also been passed by the Court concerned. According to learned counsel for the petitioner for an offence to be made out under Section 420 IPC, well settled legal position is that fraudulent and dishonest intention to deceive some person on the part of the accused is to be disclosed at the time when promise or representation was made and offence under this provision cannot be made out merely because the accused failed to keep his promise or representation later on. According to him, it is a pure and simple case of breach of contract of sale which does not constitute offence of criminal breach of trust or cheating. According to him for an offence to be made out under Section 406 IPC, it is essential to show that some property was entrusted to the accused and he converted it for his own use, but in the present case no such allegation has been made even by the complainant himself. It was contended that merely because petitioner even after receiving part of the sale consideration from the complainant failed to execute sale -deed in his favour, it cannot be said that he has deceived the complainant or committed offence of criminal breach of trust more particularly in view of the fact that the petitioner is unable to execute sale -deed by the reason that the dispute has arisen between him and his brother in respect of the land in dispute and a hotly contested civil suit is pending between them and stay order has also been passed by the Court concerned. It was also submitted that suit for permanent injunction has already been filed by the petitioner against his brother and the Municipal Council in respect of the land in dispute on the ground that he is exclusive owner of it and is also in its possession and till the issue of ownership and possession is decided by the Civil Court, the petitioner is not in a position to execute a registered sale -deed in favour of the complainant after obtaining the rest of the sale consideration. It was also submitted that the petitioner in view of the subsequent development requested the complainant to receive back the advance amount of Rs. 7,11,000/ - with interest but the complainant malafidely refused to accept the same and to harass and pressurize the petitioner lodged a false and concocted FIR. Petitioner is still ready and willing to refund the aforesaid amount alongwith the interest to the complainant in view of the aforesaid ongoing litigation. So far as offences under Sections 418 and 419 IPC are concerned, it was submitted that essential ingredients to constitute such offences are completely absent.