Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37861 of 2007 ========================================================= 1. Rajdeo Gupta, son of late Hargovind 2. Sanjay Kumar @ Toni, son of Sri Rajdeo Gupta Both resident of 8A, Baily Road, New Katra, Allahabad (U.P.) Versus .... .... Petitioner/s 1. 2. The State of Bihar S.K. Khare, son of Sri M.K. Khare, DSP/CBI/ACB/ Patna. r/o 8/60, Sr. Officer Flats, Bailey Road, Patna. .... .... Opposite Party/s Appearance : For the Petitioner/s : Mr. A.K. Thakur, Adv. Mr. Ravi Ranjan, Adv. For the State : Mr. Ansarul Haque, A.P.P. ========================================================= CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 19-09-2013 Anjana Prakash, J: Heard learned counsel for the Petitioners and the State. 2. The Petitioners seek quashing of the entire proceeding including the order of cognizance dated 4.4.2007 passed by the Chief Judicial Magistrate, Patna, in G.R. No. 589 of 2006 arising out of Kotwali P.S. Case No. 56 of 2006. 3. The case of the Informant is that the Petitioners who were residents of Allahabad took an advance of Rs.25,000/- towards sale of land and house situated at Allahabad of which the Petitioner No. 1 was the owner whereas, the Petitioner No. 2 being his son was managing. The said payment was made through a Cheque on the back of which it was clearly mentioned that the said amount was in respect of advance for purchase of the house/land. The Petitioner No. 1, thereafter, deposited the Cheque in his account which amount was credited therein. The Petitioner No. 1, further took payment of
Legal Reasoning
Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 2/9 Rs.50,000/- from the Informant vide another Cheque dated 18.5.2004 wherein also it was clearly mentioned on the back that the amount was in respect of part payment towards the purchase of the house. After having received the said amount, the accused persons did not execute the sale deed on account of which several letters and notices were sent to them but to no avail. Later he learnt that the house had been sold to another party without informing him and thus the Complainant alleged that the accused had misappropriated the money, received by them. 4. Charge sheet was submitted in the matter on 31.3.2007. In the charge sheet it was noted that during investigation, it transpired that the father of the Informant came to live in the house of the Petitioners in the year 1965-66. Later, some dispute arose between them on account of rent and the matter went up to the Supreme Court. In it was also noted that the Petitioners had filed a Criminal Writ No. 4620 of 2006 before the Allahabad High Court, but the same was dismissed. 5. After hearing the parties, I find that on 10.12.2005, the father of the Informant, he himself and his brother as Plaintiffs had filed a Suit No. 722 of 2005 before the Civil Judge West (Jr. D.), Allahabad, arraying the Petitioners as defendants. In the said Suit, the prayer was to injunct the defendants from evicting them from the lower portion of the house by force and to restrain them from interfering in their peaceful possession/use of occupation of the house Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 3/9 as also to further restrain them from transferring the said house i.e. lower and upper-portion to any other person. 6. In the said Suit, the case of the Plaintiffs was that they had entered the lower portion house of the Defendants in January, 1965, and paying a monthly rent of Rs.40/-. In the year, 1977, the Defendant No. 1 i.e. Petitioner No. 1 filed a Suit against the Plaintiff No. 1 for recovery of arrears of rent and ejectment in the Court of Judge of Small Causes, Allahabad. This dispute went up to the Hon’ble Apex Court and finally the order of eviction as against the Plaintiffs was set aside by an order dated 12.3.1984 on the undertaking that he would pay a rent of Rs.150/- per month with effect from 1.4.1984. After the decision of the Apex Court, the Plaintiff started to give rent to the Defendant i.e. the landlord but when he refused to accept the same he started to deposit the rent in the Court concerned. 7. In the year 1993, the Defendant No. 1 once again initiated another Suit claiming arrears of rent since November 1992, which was dismissed by the Court of Judge, Small Causes, Allahabad. 8. The Plaintiffs also submitted in the Suit that in the year 2004, the Defendants offered to sell the ground floor and the 1st floor of aforesaid house to the Plaintiffs to which they agreed to purchase at a consideration amount of Rs.3,00,000/-. The Defendant No. 1, thereafter, took advance payment of Rs.25,000/- by Cheque dated 12.4.2004. He also allegedly paid the second installment of Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 4/9 Rs.50,000/-. However, thereafter, the Defendants, failed to execute the sale deed and despite notices, did not reply. It is under these circumstances, that even while reserving their right to file a suit for Specific Performance of Contract, the said suit was filed for injunction as mentioned above. 9. The counsel for the Complainant submits that the said Suit stood dismissed for default and has not been restored up till date nor has any Suit been filed for Specific Performance of Contract. 10. It also appears that the Petitioners had filed a Writ in the High Court of Judicature at Allahabad for quashing the present First Information Report instituted at Patna. The main ground upon which quashing was sought was want of territorial jurisdiction, since, admittedly, the house was situated at Allahabad where the Petitioner was residing with a further prayer that the Investigating Officer, Patna, should transfer the investigation to Allahabad. 11. The Allahabad High Court passed a detailed order and relying on the decision rendered in State of Haryana and others Vrs. Bhajan Lal and others, 1992, SCC (Crl) Page 426 held that the Petitioners’ case was not covered in any of the categories enumerated. Moreover, it noted that a perusal of the impugned First Information Report, clearly disclosed the commission of cognizable offences. It further went on to observe that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the First Information Report or Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 5/9 that the allegations in the Complaint were not likely to be established. It also noted that there were specific allegations of cheating and fraudulent misappropriation of money. The High Court further held that even though the cause of action arose in Patna the Police under its powers could investigate any case irrespective of jurisdiction. Hence, the Court refused to interfere in the matter. 12. The counsel for the Petitioners submits that in the background of dispute over tenancy which matter went up to the Hon’ble Supreme Court, the present First Information Report with allegations that there was contract for sale of the house between the parties is fit to be disbelieved. Especially, since there is no written agreement for sale which is the routine procedure. He also submits that even though, the Informant has alleged that he had issued two Cheques each of Rs.25,000/- and 50,000/- respectively but admittedly, 50,000/- was never credited in the account of the Petitioners. The Cheques were allegedly given on 18.5.2004 but the present First Information Report was instituted on 1.2.2006 i.e. about 2 years later by the Informant misusing his position as an Officer of the C.B.I. He submits that the Informant in a well planned manner instituted the Civil suit on 10.12.2005 and the present Complaint soon thereafter on 31.1.2006 within a couple of months indicating that the Informant was using his position to harass the Petitioners. Moreover, the dispute being purely civil in nature, the prosecution deserves to be set aside. Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 6/9 13. On the other hand, the counsel for the Informant submits that once a Division Bench of the Allahabad High Court has refused to interfere in the matter, this Court should restrain itself from entertaining this application. The further submission is that even during the pendency of a civil suit, a Criminal case is permissible if the ingredients of a Criminal offence are present. 14. The counsel for the Complainant relies upon a decision reported in 2005 (5), SCC, Page, 581 wherein the Hon’ble Supreme Court held that if a writ petition under Article 226 has been
Decision
disposed of on merits and the order of dismissal is a speaking order, it would act as ‘res judicata’ to a subsequent petition under Article 32 on the same facts. 15. The learned A.P.P. has gone through the case diary and submits that surprisingly, the Informant when examined, did not utter a single word with regard to him or his family being the tenants of the Petitioners or that they had litigated up till the Apex Court in an eviction proceeding where his father gave an undertaking that he would pay the enhanced rent to the Petitioners with effect from 1.4.1984. The Informant and the Branch Manager of the concerned Bank have admitted that the Petitioners had not credited any Cheque to the value of 50,000/- rupees which was allegedly handed over to them by the Informant. 16. Having heard the parties, I would be inclined to note the following points which have a bearing on my final decision:- Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 7/9 I) The order of the Division Bench of the Allahabad High Court does not disclose that it had the occasion of considering the relationship of tenant and landlord between the parties or going through the contents of the Title Suit which had been filed by the Informant and his family as Plaintiffs, wherein the dispute between the parties with regard to tenancy had been admitted. Thus, it was in the absence of consideration of the background litigation between the parties and their relationship as tenants and landlords, that the contents of the First Information Report in its isolation, was tested. In such circumstances, I would be of the opinion that the order of dismissal of the Writ Petition will have no bearing on the present application. II) The non-disclosure of the relationship of tenant and landlord and the earlier round of litigations by the Informant, who was an educated person working as Deputy Superintendent of Police, Central Bureau of Investigation, is significant and raises a reasonable doubt about the integrity of the allegations. III) The absence of a written agreement between the Parties in the context of a complex dispute over right to the use of the house further raises a suspicion about the transaction. Moreso, when the Informant states that he had gone to the extent of writing on the back of the Cheque that the transaction was for sale of the house. A reasonable query would be as to, if the Informant had gone to that extent, there was no reason why a written agreement to sale was not Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 8/9 drawn up. The only adverse inference this Court can draw is that there was no such agreement. IV) The fact that the Complainant did not resort to filing a suit for Specific Performance which would have been the appropriate procedure and instead filed a suit for restraining the Petitioners from disturbing their occupation and from selling it to another is noteworthy. The inference which this Court is inclined to draw is that this Complaint has been filed soon after having filed a Civil Suit in order to arm-twist the Petitioners into negotiating with him and as a short-cut method to achieve his goal of somehow getting possession of a valuable property. V) The fact that the Cheque was issued on 12.4.2004 and the Petitioners allegedly did not honour their commitment for which they were noticed in the same year, there was no reason for the Informant to have waited till 2006 to file the First Information Report, mentioning his official capacity at Patna, when admittedly the disputed house and Petitioners were both located at Allahabad, where all transactions had taken place. 17. As for the decision cited by Informant I find the Hon’ble Supreme Court was of the view that, when a Writ Application filed under Article 226 of the Constitution was dismissed in the Allahabad High Court in the same year against which a Special Leave Petition was preferred and was disposed off by the Apex Court with a direction that the Petitioners could ventilate their grievances in Patna High Court Cr.Misc. No.37861 of 2007 dt.19-09-2013 9/9 accordance with law the Principle of res judicata would apply on a fresh Writ Petition under Article 32 of the Constitution of India. Evidently, the decision has no bearing on the present case. 18. Having considered the notable points as enumerated above, in my opinion, the continuance of the proceeding would be a gross abuse of the process of the Court and deserves to be set aside. If at all there is a breach of contract, remedy would be of a civil nature. 19. In view of such, the entire proceeding including the order of cognizance dated 4.4.2007 passed by the Chief Judicial Magistrate, Patna, in G.R. No. 589 of 2006 in connection with G.R. No. 589 of 2006 arising out of Kotwali P.S. Case No. 56 of 2006 is, hereby quashed. 20. The application stands allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated, the 19th September, 2013 NAFR/S.Ali