TMI Blog2013 (1) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 4.12.2010 passed by the learned Sessions Judge, Gautam Budh Nagar affirming the said order, on the foundation that the allegations made neither in the FIR nor in the protest petition constitute offences under the aforesaid sections, the present appeal by special leave has been preferred. 3. The factual score as depicted are that the Appellant is a Non-Resident Indian (NRI) living in Germany and while looking for a property in Greater Noida, he came in contact with Respondent No. 2 and her husband, Raghuvinder Singh, who claimed to be the owner of the property in question and offered to sell the same. On 24.3.2008, as alleged, both the husband and wife agreed to sell the residential plot bearing No. 131, Block-(Cassia-Fastula Estate), Sector CHI-4, Greater Noida, U.P. for a consideration of Rs. 2,43,97,880/- and an agreement to that effect was executed by the Respondent No. 3, both the husband and wife jointly received a sum of Rs. 1,05,00,000/- from the Appellant towards part payment of the sale consideration. It was further agreed that the Respondent Nos. 2 and 3 would obtain permission from Greater Noida Authority to transfer the property in his favour and execute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-Registrar, the Chief Executive Officer of Greater Noida Authority, from whose statements it was evident that the accused persons were never the owners of the property in question and the original allottee had not appeared in the Greater Noida Authority and not transferred any documents. He also recorded the statement of original allottee who had stated that the property was allotted in her name in 2005 and on a proposal being made by Raghuvinder Singh, a friend of her husband, to sell the property she executed an agreement to sell in his favour and a General Power of Attorney in the name of his wife, Savita Singh, at his instance but possession was not handed over to them. He also examined one Sharad Kumar Sharma, who was a witness to the agreement to sell and the Power of Attorney executed by the original allottee, and said Sharma had stated that the General Power of Attorney was executed to implement the agreement to sell executed in favour of Raghuvinder Singh. The Investigating Officer obtained an affidavit from the complainant which was kept in the case diary, and on 25.2.2010 it was recorded in the case diary that a criminal offence had been made out against the accused pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case at hand. The revisional court scanned the material brought on record, perused the case diary in entirety, took note of the conduct of the Investigating Officer who had submitted the final report stating that the allegations did not constitute any criminal offence despite the material brought on record during the course of investigation by the Investigating Officer, who was appointed at the instance of the Area Officer, scrutinized the substance of material collected to the effect that Raghuvinder Singh had no right, title and interest in the property and a General Power of Attorney was executed in favour of his wife to sell, transfer and convey all rights, title and interest in the plot in question on behalf of the original allottee and that the husband and wife had concealed the material factum of execution of Power of Attorney from the complainant and opined that both the accused persons had fraudulent and dishonest intention since the beginning of the negotiation with the complainant and, therefore, the allegations prima facie constituted a criminal offence and it could not be said that it was a pure and simple dispute of civil nature. Being of this view he gave the stamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code as she did not sign the document nor did she endorse the same as a witness. It is urged by him that no criminal liability can be fastened on her, for the sine qua non for attracting criminality is to show dishonest intention right from the very inception which is nonexistent in the case at hand. It is submitted by him that if the criminal action is allowed to continue against her that would put a premium on a commercial strategy adopted by the Appellant in roping a lady only to have more bargaining power in the matter to arrive at a settlement despite the breach of contract by him. The learned senior counsel would further contend that the Appellant has taken contradictory stands inasmuch as in one way he had demanded the forfeited amount and the other way lodged an FIR to set the criminal law in motion which is impermissible. To bolster the said contentions reliance has been placed on the judgments rendered in Hridya Rajan Pd. Verma and Ors. v. State of Bihar and Anr. AIR 2000 SC 2341, Murari Lal Gupta v. Gopi Singh (2006) 2 SCC (Cri) 430 and B. Suresh Yadav v. Sharifa Bee and Anr. (2007) 13 SCC 107. 12. At the very outset, it is necessary to state that on a perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h referred to the judgment in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 wherein this Court has enumerated certain categories of cases by way of illustration wherein the extraordinary power under Article 226 or the inherent powers Under Section 482 of the Code of Criminal Procedure could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. The Bench also referred to the decisions in Rupen Deol Bajaj (Mrs.) v. Kanwar Pal Singh Gill AIR 1996 SC 309, Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 and State of Kerala v. O.C. Kuttan AIR 1999 SC 1044 wherein the principle laid down in Bhajan Lal (supra) was reiterated. The Court posed the question whether the case of the Appellants therein came under any of the categories enumerated in Bhajan Lal (supra) and whether the allegations made in the FIR or the complaint if accepted in entirety did make out a case against the accused-Appellants therein. For the aforesaid purpose advertence was made to offences alleged against the Appellants, the ingredients of the offences and the averments made in the complaint. The Court took the view that main offence alleged to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged expressly or even impliedly in the complaint. Therefore, the core postulate of dishonest intention in order to deceive the complainant-Respondent No. 2 was not made out even accepting all the averments in the complaint on their face value and, accordingly, ruled that in such a situation continuing the criminal proceeding against the accused would be an abuse of process of the Court. 16. From the aforesaid decision it is quite clear that this Court recorded a finding that there was no averment in the complaint that intention to deceive on the part of the accused was absent right from the beginning of the negotiation of the transaction as the said allegation had neither been expressly made nor indirectly suggested in the complaint. This Court took note of the fact that only non-disclosure was that one of their brothers had filed a partition suit which was pending and the allegation that such a disclosure was not made intentionally to deceive the complainant was absent. It is worthy to note that this Court referred to certain averments in the complaint petition and scrutinized the allegations and recorded the aforesaid finding. The present case, as we perceive, stands on a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property whereupon the said two rooms were allegedly situated was the same property forming the subject-matter of the deed of sale or not and a civil suit had already been filed pertaining to the said dispute. The Court also took note of the fact that at the time of execution of the sale deed the accused had not made any false or misleading representation and there was no omission on his part to do anything which he could have done. Under these circumstances, the Court opined that the dispute between the parties was basically a civil dispute. It is apt to note here that the Court also opined that when a stand had been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, the same assumes significance and had there been an allegation that the accused got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter would have been different. Being of this view, this Court quashed the criminal proceeding as that did amount to abuse of the process of the court. On an x-ray of the factual score, it can safely be stated that the said pronouncement renders no assistance to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. 10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 23. Coming to the facts of the present case, it is luminicent from the FIR that the allegations against the Respondent No. 2 do not only pertain to her presence but also about her total silence and connivance with her husband an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 and Indian Oil Corp. v. NEPC India Ltd. (2006) 6 SCC 736) 25. In this context we may usefully refer to a paragraph from All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain and Anr. AIR 2008 SC 247 .....Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondence exchanged by the parties and other admitted 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 jurisdiction of this Court, it is impermissible also to look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation v. Ravi Shankar Srivastava, IAS and Anr. (2006) 7 SCC 188, the Court, after referring to Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305 and Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1, has observed that the powers possessed by the High Court Under Section 482 of the Indian Penal Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles and such inherent powers should not be exercised to stifle a legitimate prosecution. This Court has further stated that it is not proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It has been further pronounced that it would be erroneous to Assess the material before it and conclude that the complaint could not be proceeded with. The Bench has opined that the meticulous analysis of the case is not necessary and the complaint has to be read as a whole and if it appears that on consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court Under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. 31. Applying the aforesaid parameters we have no hesitation in coming to hold that neither the FIR nor the protest petition was mala fide, frivolous or vexatious. It is also not a case where there is no substance in the complaint. The manner in which the investigation was conducted by the officer who eventually filed the final report and the transfer of the investigation earlier to another officer who had almost completed the investigation and the entire case diary which has been adverted to in detail in the protest petition prima facie makes out a case against the husband and the wife regarding collusion and the intention to cheat from the very beginning, inducing him to hand over a huge sum of money to both of them. Their conduct of not stating so many aspects, namely, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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