1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R DUSHYANT SINGH VS. STATE OF RAJ. & ORS “S.B. CRIMINAL MISC. PETITION NO.150/2009 UNDER SECTION 482 Cr.P.C.” DATED : 9.11.2010 P R E S E N T HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.L.N.Gehlot} Mr.Umeed Singh Gehlot} for the petitioner. Mr.Anil Upadhyay PP Mr.Ramesh Purohit for the respondent. ***** BY THE COURT:- Petitioner Dushyant Singh by way of this petition under Section 482 Cr.P.C., challenged the registration of FIR No.170/2008 and further investigation thereto Criminal Case lodged against him under Sections 420 and 120 of the Indian Penal Code in Police Station Pali. The facts leading to the present petitioner are as under:- That on 12.11.2008 complainant respondent No.2 filed an FIR in Police Station Kotwali, Pali alleging therein that on 09.09.2007 the petitioner aggrieved to sell the land measuring about 170-175 bighas situated at Khasra No.975 to 985 to the complainant respondent No.2. 2 Agreement was executed in the presence of Amrit Parihar resident of Bali, Amar Chand Jain resident of Bewar, Rajendra Kumar Jain and Abdul Vaheed Ansari. It was averred in the FIR that in terms of agreement, the transaction could not take place and after the long deliberations in compliance to the agreement petitioner agreed to sale the lands in different parts. Land measuring to 153 bighas was sold to the complainant through four different sale deeds. The complainant stated in the FIR that 26 bighas of land situated in front side and adjacent to the main road was not sold to him by executing sale deed in his favour. Complainant alleged that accused persons named in the FIR have refused to execute the sale deed with regard to said fifth part of the land and also cancelled the power of attorney executed in favour of Dushyant Singh. The complainant stated that the accused person with dishonest intention has committed fraud with the complainant. On the aforesaid information police registered the above FIR as narrated earlier. Aggrieved by the registration of the above FIR, the petitioner has preferred this Criminal Misc. Petition under Section 482 of the Cr.P.C. for quashing the FIR No.470/2008 lodged in Police Station Kotwali Distt. Pali and further investigation. The counsel for the petitioner contended that the bare reading of the facts averred in the FIR makes it clear that facts as stated does not at all make out any case or any offence being committed by the present petitioner. The facts as averred in the FIR at the most discloses a case 3 for breach of agreement which cause for only civil liability. However, the respondent No.2 without adopting the proper course has filed the present FIR giving a shape of criminal offence. Thus the FIR lodged by the respondent No.2 mere abuse of process of court. Learned counsel for the petitioner also contended that facts stated in the FIR do not establish the basic ingredients for the offence of cheating as alleged against the petitioner in view of the provisions of Section 415 of the IPC liability on the petitioner, if any, arising by the breach of agreement is civil in nature and not criminal in any manner because in the present case also the complainant has failed to establish any dishonest intention of the petitioner at the time of execution of agreement. Learned counsel for the petitioner while advancing his arguments relied upon the following judgments of the Hon'ble Supreme Court. [1] AIR 2009 SC (Supp) 59 V.Y.Jose & Anr. Vs. State of Gujarat and Anr. [2] RLW 1999 (1) SC 125 Nageshwar Prasad Singh @ Sinha Vs. Narayan Singh & Anr. Per contra, learned counsel for the respondent submitted that conduct of the petitioner itself shows that while executing the agreement his intention was to cheat the respondent No.2 and, therefore, intentionally executed the sale deed for rest of the property except the land measuring to 26 bighas which is adjacent to the main road which is in prime location. Learned counsel for the respondent 4 No.2 while advancing his argument relied upon the following judgments:- [1] 2000 Cr.L.R. [SC] 765 Mahaveer Prasad Gupta (Shri) & Anr. Vs. State of National Capital Territory of Delhi & Ors. Learned counsel for the respondent also submitted the copy of order passed by this court on the anticipatory bail application filed the present petitioner under Section 438 of the Cr.P.C. which has been dismissed as not pressed. I have considered the rival arguments advanced by both the counsel for the parties and the judgments cited by both the parties. The contours of the power under Section 482 of the Cr.P.C. have been explained in series of decisions of Hon'ble Supreme Court. In State of Haryana Vs. Bhajan Lal a question came up for consideration as to whether quashing of the FIR filed against the respondent Bhajan Lal for the offences under Sections 161 and 165 IPC and Section 5 (2) of the Prevention of Corruption Act was proper and legal. Reversing the order passed by the High Court, this Court explained the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by this Court, it was further explained that such power could be exercised where allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can aver reach a just conclusion that there is sufficient grounds for proceedings against the accused. No doubt, at the stage of quashing an FIR or 5 complaint the High Court is not justified in embarking upon an inquiry as to the probability, reliability or genuineness of the allegation made therein. In AIR 2009 SC (Supp) 59 while discussing the scope of Section 482 of the Cr.P.C. defined distinction between breach of contract and offence of cheating and where there were no allegation in regard to existence of dishonest intention on the part of accused the FIR and the investigation proceedings were quashed by the Hon'ble Supreme Court. In Nageshwar Prasad Singh @ Sinha RLW 1999 (1) SC 125 the Hon'ble Supreme Court again held that agreement to sell signed by the parties on payment of a consideration and some part was paid as earnest money and possession was delivered by subsequent conduct of the seller forcing complainant to file suit for specific performance whether the cheating was made out or not. The Hon'ble Supreme Court did not find any dishonest intention. In the present case in the FIR itself specifically alleged that petitioner refused to execute the sell in respect of 26 bighas of land which was in prime location and thus there was initial dishonest intention on the part of the complainant, therefore, the facts of the cases cited by the counsel for the petitioner are different to the present case. As alleged by the complainant, parties entered into an agreement of sale of 170-175 bighas of land, leaving aside 26 bighas of land of prime location, rest of the land has been transferred in terms of the agreement but seller entered into an agreement of sale of the remaining 26 bighas of land also. This entire 6 transaction is an outcome of cheating made by said accused. Thus complainant lodged FIR which is pending investigation. This is assailed on the ground that cheating can be constituted only if the criminal intention at the time of entering into agreement with the complainant was dishonest. If the initial intention at the time of execution of the agreement was fair and dishonesty crept subsequently then at least offence of cheating will not be made out. It is needless to say that very purpose of investigation is to find out truth by collecting relevant evidence. The real intention of the parties will be disclosed on the basis of material which police will collect during investigation and then only court will see whether the initial intention of the accused petitioner was not dishonest or of defrauding the complainant respondent No.2. It is premature stage to give some conclusive finding on the issue. As per principles propounded by the Hon'ble Supreme Court in the case of Bhajan Lal (Supra) in my humble opinion, the petition is devoid of any merit. Accordingly, it is dismissed. [KAILASH CHANDRA JOSHI], J. MAMTA