IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5930 of 2009 SMT. SUSHILA DEVI, WIDOW OF LATE RAMAUTAR SHASTRI, FORMER MEMBER OF PARLIAMENT, R/O OF VILLAGE NAYA TOLA, MAUZA – JALALPUR, P.O. AND P.S. DANAPUR DISTRICT PATNA, PRESENTLY, RESIDING AT JAMUNA APARTMENT, FLAT NO. 13 BORING ROAD, P.O. AND P.S. SRIKRISHNAPURI, DISTRICT PATNA .. PETITIONER Versus 1. THE STATE OF BIHAR 2. GANESH CHANDRA MISHRA, S/O LATE SRICHANDRA MISHRA, SECRETARY-INCHARGE, SNEH PRIYA SAHKARI GRIH NIRMAN SAMITI LTC., PATNA HAVING REGISTRATION NO. 163 PAT (DISTRICT) 1988, RESIDENT OF 249, DEFENCE COLONY KANKERBAGH, P.O. AND P.S. KANKERBAGH, DISTRICT PATNA .. OPPOSITE PARTIES **** For the petitioner .. M/S Vishnudeo Narayan & Chandra Shekhar Jha, Advs. For the State .. Mr. D. Tiwary, A.P.P. For opposite party no. 2 .. M/S Satish Chandra Jha, Pushpa Rani &Punam Kumari, Advs. **** /5/ 19.01.2011 This is a petition for quashing the order, dated 27.02.2008, passed by the Chief Judicial Magistrate, Patna, in Kadamkuan (Kankerbagh) P.S. Case No. 776 of 2006, by which cognizance has been taken for offence under Sections 406, 420 and 120B of the Penal Code as well as for quashing the entire criminal prosecution. 2 2. From the perusal of the record, it appears that a complaint case was initially filed bearing Complaint Case No. 1741 (c) of 2006 filed on 27.06.2006 by the complainant/informant on the basis of which the first information report was lodged under Section 156(3) of the Criminal Procedure Code bearing Kadamkuan (Kankerbagh) P.S. Case No. 776 of 2006. 3. The prosecution case, as alleged in the complaint petition, on the basis of which the first information report was lodged is that Smt. Sushila Devi, the petitioner came to the office of Sneh Priya Sahkari Grih Nirman Samity and impressed that she is in need of money for purchase of flat and wants to sell 36 decimals of land bearing khata no. 118, plot no. 108 of mauza Jalalpur under Danapur Police Station and impressed that land was ancestral property and recorded in the survey khatiyan in the name of Kaloo Gope, son of Ramyaj Gope, who was the grand father of her deceased husband, Ram Autar Shastri. She succeeded her husband after his death. The price of the land was fixed at the rate of Rs.23,000/- per katha. An agreement for sale was entered into and executed on payment of Rs.55,001/- as baibeyana. The term of agreement is that in the event of any discrepancy 3 the Society has right to realize from Sushila Devi entire money from her with interest and damage and, further, the final measurement of the land has not been done and the cost will be calculated on final measurement of area. The deed was signed on 18.12.2008 and the time was the essence of contract for a year. It is further alleged that on 10.03.1989 she, again, came and demanded money and Rs.30,000/- was paid which she acknowledged on stamp paper. It is further alleged that the Society pressed Smt. Sushile Devi for final measurement and ultimately the Society on 16.03.1989 proceeded to measure the land ex parte, but, on the spot one Janak Gope and Kuldip Gope, both cousins of late Ram Autar Shastri, namely, Pavitra Gope and Jawahir Gope and others came armed with lethal weapon and did not permit to measure the land and they stated that Ram Autar Shastri was an outsider and did not belong to the family. The geneology given disclosed that one Ramyad Gope had two sons, Kaloo Gope and Ramtahal Gope, Kaloo Gope had two sons, Jethu Gope and Sumer Gope, Jethu Gope died issueless and Most Dhanvantri Devi, wife of Jethu Gope remarried one Jagdish and Ram Autar Shastri born out of the wed lock of Jagdish and Dhanvantri and so did not fall in the family geneology of 4 Kaloo Gope, Janak Gope and Kuldip Gope were sons of Sumer Gope. It is further alleged that on the same day the Secretary of the Society (Sneh Priya Sahkari Grih Nirman Samity) brought the entire matter to the knowledge of Smt. Sushila Devi and told that she has concealed the dispute over the land and so requested to give some other land in lieu of this land or return the money with interest and damage and then it is alleged that she admitted the family dispute and impressed that the family dispute will be resolved and, thereafter, the sale deed would be executed. On 30.07.1991 she handed over to the Secretary of the Society (Sneh Priya Sahkari Grih Nirman Samity) typed copy of the order sheet, dated 27.07.1991 of the Deputy Collector, Land Reforms, Danapur, passed in Case No. 8 of 1989-1990, which was in her favour. It is further alleged that the Society requested her to go on land for final measurement, but, she refused and then it is alleged that on 01.02.2006 the Secretary of the Society told to Smt. Sushila Devi that now she has received huge amount from services on her retirement and so return back the amount, but, she refused and then it is alleged that it was learnt that she has already sold 36 decimals of land by two sale deeds of 18 decimals each on 12.05.1994. 5 4. The learned counsel for the petitioner submits that taking into consideration the entire allegation on the face value, no criminal case is made out and it has been asserted that said Jethu Gope had a son, Ram Autar Shastri, and there has been amicable partition of entire ancestral land including plot no. 108 besides other land in the share. The petitioner is the legally wedded wife of Ram Autar Shastri and on death of Ram Autar Shastri, his wife, Smt. Sushila Devi, the petitioner, inherited the entire property, including 36 decimals of land of plot no. 108 and it is asserted that the petitioner fell in need of money for repair of house and to pay debt to the creditor and for other legal necessity and so declared her intention to sell 36 decimals of land of plot no. 108 and the Secretary of Sneh Priya Sahkari Grih Nirman Samity came to Jalalpur to meet the petitioner and expressed his desire to purchase the land and there was negotiation between the petitioner and the opposite party, who on verification of the relevant document became fully satisfied regarding the right, title and interest and, thereafter, after local inspection found in exclusive cultivating possession of the petitioner and opposite party no. 2 agreed to purchase the land at the rate of Rs.23,000/- per katha and entire 6 consideration money is to be assailed and the opposite party no. 2 paid Rs.55,001/- as earnest money and executed agreement to sale and the time of the essence of the agreement was 10.12.1988 to 18.03.1989 and in consequence of this agreement the petitioner persuade for payment on 10.03.1989 and, further, Rs.50,000/- paid and full consideration amount was not paid within the stipulated period as opposite party no. 2 did not get any steps for measurement of land in question for ascertaining the entire consideration money or for execution of the sale deed and, further, Pavitra Gope and others, the agnates of the late husband, filed Miscellaneous Appeal No. 8 of 1989-1990 on 21.11.1989 before the Court of Deputy Collector, Land Reforms, for cancellation of the mutation in favour of the husband of the petitioner. It was dismissed on contest and, hence, it is asserted that the complaint has been filed after eighteen years of the expiry of the stipulated period of the agreement due to vendetta and wreck vengeance to put pressure on her when the claim of the complainant under the civil suit has become hopelessly barred by limitation. 5. It has, further, been asserted that Ram Autar Shastri, the husband of the petitioner was born in the wed 7 lock of Jethu Gope the legally wedded wife, Dhanvantri, and it has falsely been stated that Ram Autar Shastri was born from Dhanvantri and Jagdish. 6. The learned counsel for the opposite party, however, contended that the complaint has been filed which was signed for lodging of the first information report and after the police investigation, charge sheet has been submitted and once the charge sheet submitted the investigation of independent agency and the question of malafide is of least concern, as the charge sheet has been submitted by the independent agency like police. 7. However, the question for consideration is that the allegation taken on the face value of the allegation to be correct whether makes out an offence. However, the learned counsel for the petitioner asserts that whatever allegation made in the complaint petition on the basis of first information report has been lodged, if taken to be true on the face value, make out an offence. 8. However, taking into the respective submissions the question for consideration at this stage the only whether the allegation makes out in the complaint petition taken on it’s face value makes out a case of a cognizable offence 8 under Sections 420, 406 and 120B of the Penal Code or whether it is a case of breach of contract whether there was deception at the time. 9. The prosecution case, as alleged in the complaint/first information report that Smt. Sushila Devi approached to sell the land impressing that the land belonged to her husband, who was grand son of Kaloo Gope, and a contract for sell was entered into for selling 36 decimals of land which was felling in share of the husband of the complainant and it is further alleged that an agreement entered into and Rs.55,000/- was paid at the time of execution of baibeyana as agreement on 18.03.1988, which was agreed to execute the sale deed within one year, i.e., by 18.03.1989 after measurement. On 18.03.1989 she, again, demanded the rest of the amount of Rs.50,000/- was paid with endorsement about the payment and, thereafter, it is alleged that in the meantime the Society (Sneh Priya Sahkari Grih Nirman Samity) persuaded to measure the land on 16.03.1989 and it is alleged that Janak Gope and Kuldip Gope apprehended, armed with lethal weapons and not allowed to measure the land and they stated that Ram Autar Shastri was an out sider as Jethu Gope was married with 9 Dhanvantri, but, Jethu Gope died issueless and Mst. Dhanvantri remarried Jagdish Gope and Ram Autar Shastri born out of the wed lock of Jagdish Gope and Dhanvantri. However, it is alleged that the Secretary of the Society (Sneh Priya Sahkari Grih Nirman Samity) met Smt. Sushila Devi on 16.03.1989 and Smt. Sushila Devi stated that there was a family dispute to be resolved and further informed the Society that her nephew had filed a case with regard to the land in the Court of the Deputy Collector, Land Reforms, bearing case no. 8 of 1989-1990 (Pavitra Gope & Ors. Vrs. Sushils Devi) and on 30.07.1991 she handed over the Secretary of the Society (Sneh Priya Sahkari Grih Nirman Samity) a typed copy of the order sheet, dated 27.07.1991, of the Deputy Collector, Land Reforms, Danapur, in case no. 8 of 1989-1990 in which the order was passed in her favour and ultimately she sold the land agreed to be sold in the year 1994, itself. 10. Hence, in view of this allegation, the question for consideration whether the offence of Sections 420 and 406 of the Penal Code is made out. However, there is specific allegation that the money was paid in advance as part price for the purchase of the land and, so far the criminal 10 breach of trust is concerned, for constituting a breach of trust there must be an endorsement of a property and the person entrusted with the property is required to dishonestly misappropriated, i.e., the owner has used it for violation of the legal contract or legal direction. However, having regard to the fact that there was a contract for sell and the money was paid as part price for the purchase of land and if the money has been paid as part price for the purchase of the land then it was not a property kept by the petitioner in trust, but, it became the property of the petitioner as she got the money as a price of the land and it becomes the property of the petitioner and it is open to the petitioner to utilize it in any manner she likes and she can not be held liable for criminal misappropriation or criminal breach of trust even for not returning the amount, hence, so far the offence of Section 406 of the Penal Code is concerned, it is not made out. 11. However, the charge has also been framed under Section 420 of the Penal Code. The cheating has been defined as whomever fraudulently by deceiving any person fraudulently and dishonestly inducing the person so deceived to deliver any property and, hence, the dishonest intention 11 and deliberate intention for wrongful loss and gain coupled with cheat and deception. However, taking into consideration the facts and circumstances of the case to infer whether there was any dishonest inception or deception or whether there is any evidence or material to suggest that there was any dishonest intention at the time of entering into an agreement, however, it is alleged that the petitioner impressed that the land belongs to her husband and she being the legally wedded wife has inherited and a contract for sale entered into, money paid. However, it is alleged that during the existence of this contract on 16.03.1989, the petitioner learnt that Ram Autar Shastri, the husband of the petitioner was not the son of Jethu Gope in whose name the property stands, however, no legal action was taken either civil or criminal and it is stated that the matter was reported to the petitioner and this petitioner stated that there is family dispute, it is not a case that the petitioner accepted the allegation that her husband was not son of Jethu Gope rather in the complaint petition, itself, it is mentioned that the petitioner brought an order in her favour with regard to the land in case no. 8 of 1989-1990 when the mutation order was decided in her favour and the objection of the other side was 12 repelled and, hence, the allegation that Ram Autar Shastri was not the son of Jethu Gope, itself, not accepted by the complainant had the complainant aware of and convinced of this fact he may have filed a criminal case and, further, the land was sold by accused, Sushila Devi, in 1994, hence, taking into consideration the nature of the allegation, itself, shows that the petitioner was convinced that Ram Autar Shastri having nexus with the property, as per the prosecution case in the Court, there was a contract for the sale and time was essence of contract was one year and it is admitted case in the complaint petition, itself, that the entire consideration money was not paid within that period of one year and the petitioner remained convinced that it was not a case of getting the money by deception dishonestly and fraudulently. Had there been the case, the petitioner may have filed the case earlier, however, the case has been filed when petitioner learnt on 01.02.2006 that the petitioner has sold the land, however, apparently the contract for sale was of the year 1988-1989 and the petitioner has lost remedy as barred by limitation to be litigated and, hence, apparently appears to have filed the criminal case to wreck vengeance to spit on the face of the petitioner when he has himself 13 violated the term of the contract as not paid the amount within time and there is nothing in the face to suggest that a criminal offence is made out and, hence, taking into consideration the entire facts and circumstances and the allegation made in the complaint and evidence adduced that evidence disclosed only a breach of civil liability or a breach of contract of the year 1988-1989 and there is nothing in evidence to suggest that the criminal offence depend upon whether the complainant while parting with the money acted on the representation of the accused and not believed the truth, thereafter, whether those representations were, in fact, false to the knowledge of the accused. Here, thus, there is nothing in evidence to suggest that the petitioner ever represented any infract, which was false to the knowledge of the petitioner. 12. However, it is pertinent to mention, to establish a case of cheating, it must be shown that there was dishonest intention of the accused to cause wrong full gain or wrong full loss coupled with cheat and delivery of property and this deliberate intention she must have deceived and the accused has represented a fact which in the knowledge of the accused is false, however, there is nothing in the allegation to suggest 14 that the accused deceived or made false statement or an unlawful gain. The complainant has offered to sell the land showing it to be the property of her husband which she has inherited, nothing has been found out as alleged in the entire allegation that the petitioner had knowledge about these facts as false. However, it is asserted in the complainant that when the accused persons went to make measurement then it was disclosed by the cousin brother of Ram Autar Shastri that Ram Autar Shastri was not son of Jethu Gope, however, in the complaint petition, itself, it has been mentioned that the complainant brought an order that her mutation was challenged by those cousin brothers, which was over ruled and order passed in favour of the petitioner and the complainant was impressed that the sale deed will be executed in their favour and, hence, there is nothing to suggest or make out a case that the petitioner having knowledge made any false statement to deceive. However, to the contrary from the facts, it is apparent that the complaint petition has been filed due to vendetta and wreck vengeance to put pressure on the petitioner when the accused persons lost their remedy by civil law as they did not prefer any remedy for the breach of contract and, hence, with a 15 view to coerce her this case has been filed. 13. The learned counsel for the petitioner has relied upon a decision reported in (2010) 2 S.C.C. (Cri.) 223 (Dalip Kaur & Ors. Vrs. Jagnar Singh & Anr.). However, under the facts and circumstances of the case the appellant was the owner of the agricultural land entered into the agreement for sale with respondent no. 2 to sell 13 acres of land at the rate of Rs.4,70,000/- per acre. He, further, paid Rs.7,00,000 /- towards advance and again a sum of Rs.14,20,000/- was, further, paid. However, the second appellant was unable to pay the balance amount on a consideration and the appellant executed a deed of sale in favour of Balbir Singh and Mohindra Singh and it was contended that the appellant did so without calling upon him to pay the balance amount and, hence, offence under Sections 406 and 420 of the Penal Code is made out. However, a petition was filed before the Hon’ble High Court for quashing the first information report and while rejecting the application the single Judge held that the petitioner despite the agreement to sell having been cancelled the defendant not returned the earnest money, which is indicative of dishonest intention leading to the registration of the first 16 information report nothing has been shown to this Court, which could proceed it to exercise inherent jurisdiction and, hence, dismissed the petition under Section 482 of the Criminal Procedure Code and in compliance an appeal was preferred and the Hon’ble Supreme Court taking into consideration Sections 405 and 415 of the Penal Code observed that an offence of cheating would be constituted when the accused had fraudulent and dishonest intention at the time of making promise or a representation and appear a simple breach of contract does not constituted an offence of cheating and observed the ingredients of cheating as one deception to fraudulent and dishonest inducement to deliver property and to confine the person shall retain property and finally intentionally inducing that person to do or may to do anything which he done had or omit and, hence, observed that the High Court should have posed a question as to whether any act on inducement on the part of appellant has been raised by the second respondent and whether the appellant had intention to cheat him from the very inception. It, further, observed that if the dispute between the parties are essentially a civil dispute resulting from a breach of contract on the part of the appellant by non-refunding the amount of 17 advance would not constitute an offence of cheat and held that High Court has not applied it’s mind with regard to the aforementioned aspect of the matter and, hence, held that impugned judgment of the High Court is not sustainable. 14. However, in the decision reported in (2009)1 S.C.C. (Cri.) 996 (V.Y. Jose & Anr. Vrs. State of Gujrat & Anr.) that when the case essentially involved a civil dispute then the person should not inherit harassment of litigation even though no case has been made out against him, hence, having attained the legal position is enunciated by the Hon’ble Supreme Court 15. However, the contract for sale entered into in 1989, the time was essence of contract as one year the complainant learnt about alleged deception that Ram Autar Shastri was not son of Jethu Gope, the person in whose name khatiyan stand, but, did not take legal action on the ground that order passed in mutation in favour of this petitioner and finally the petitioner sold the land in 1994, itself, indicates that there was no deception at the time of entering into the contact and the money paid in terms of contract and, hence, when allegation made apparently not made out an offence of there is nothing to suggest that the petitioner has herself 18 misrepresented any fact which was false to her knowledge to get the baibeyana, hence, allegation made a material, disclosed it only disclose about a breach of the civil liability or a breach of contract and there is nothing to suggest that the complainant parted with money on the representation of the accused believing it to be true which was, in fact, a false to the knowledge of the accused and, further, there is no material on recordto suggest that the complainant parted with money on the representation of the accused believing it to be true which was, in fact, a false to the knowledge of the accused and, further, there is no material on record to suggest that the petitioner had a dishonest intention from the out set and, hence, the mere breach of contract does not give right to criminal prosecution and, hence, taking into consideration the entire fact it is apparent that taking all the acts on the face value does not make out an offence and the matter concerns only with regard to breach of contract and when there is no clear and conclusive evidence of criminal intention of the accused at the time of offence is said to have committed and when the party having the alternative remedy in Civil Courts for a breach of contract having not availed of and the criminal case is filed in the year 2006 after breach of contract 19 in the year 1988-1989 when the claim is hopelessly barred by limitation in Civil Courts apparently shows that the criminal case has been filed due to vendetta and wreck vengeance and put pressure on the accused and, hence, allowing the prosecution is apparently a misuse of the process of the Court and, hence, the order taking cognizance and continuance of the