High Court of Chhattisgarh
Case Details
1 2025:CGHC:10763-DB NAFR ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.03.06 10:24:38 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 459 of 2024 Lekhchand Sahu S/o Thaan Singh Sahu Aged About 59 Years R/o Village Murmunda Nandani Nagar, District Durg Chhattisgarh versus ... Petitioner 1 - State of Chhattisgarh Through Police Station City Kotwali, Durg, District Durg Chhattisgarh 2 - Ravinder Singh S/o Late John Singh Aged About 33 Years R/o Near Duggal Compound, Shastri Nagar, Camp-1 Bhilai, District Durg Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Petitioner For Respondent No.1/State : Mr. Shaleen Singh Baghel, Deputy : Mr. B.P. Sharma, Advocate For Respondent No.2 : None Government Advocate Hon'ble Shri Ramesh Sinha, Shri Ravindra Kumar Agrawal Chief Justice , Judge Hon'ble Per Ramesh Sinha , Chief Justice Order on Board 05.03.2025 1. Heard Mr. B.P. Sharma, learned counsel for the petitioner as well as Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, appearing for the State/respondent No.1. 2 2. Despite service of notice to respondent No.2, no one appears on behalf of respondent No.2 either in person or through duly appointed cousnel to contest the matter when the case is called out for hearing. 3. The present petition has been filed by the petitioner with the following prayers:- “a. A writ and/or an order in the nature of mandamus do issue calling for records pertaining to case of petitioner from the respondent No.1 for perusal of this Hon'ble Court, if deem fit. b. A writ and/or an order in the nature of
Facts
writ of mandamus do issue quashing FIR No.546/2024 (Annexure P-1) registered by respondent No.1 in the peculiar factual matrix of the case and in the interest of justice. c. A writ and/or an order in the nature of writ of mandamus do issue seeking explanation from respondent State authorities in registering one after another FIR in respect of admittedly failed civil transaction regarding which matter is sub judice before the civil Court and no ingredients of cheating has been brought home and when on the face of record it is clear that police machineries are instrumental in grabbing the property of poor agriculturists, a suitable direction may be issued to the State authorities of 3 payment of suitable compensation as this Hon'ble Court may deem fit for infringement of fundamental and constitutional rights and if this Hon'ble Court further deem fit, direct for recovery thereof from pockets of the officers at fault, in the facts and circumstances of the case. d. Cost of the proceedings. e. Any other writs and directions that may be deemed fit and just in the facts & circumstances of case.” 4. Brief facts of the case, in a nutshell, multiple criminal cases are registered by the respondent No.1 against the petitioner, which has genesis i.e. agreement dated 03.07.2019 under which wife of the
Legal Reasoning
damages. However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168: 2000 SCC (Cri) 786], the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by Respondent 2 does not disclose dishonest or fraudulent intention of the appellants. 40. Having gone through the complaint/FIR and even the charge-sheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Sections 405 and 420IPC, 1860. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420IPC can be said to have been made out. In the instant case, there is no material to indicate that the appellants had any mala fide intention against the respondent which is clearly deductible from the MoU dated 20-8- 2009 arrived at between the parties.” 15 14. A bare perusal of FIR reveals that by any stretch of imagination, it cannot be said that petitioner may be involved in any offence much less for the offence under Section 420 of IPC. Be that as it may, not only petitioner has been involved without following the procedure established by law i.e. of preliminary enquiry etc., as laid down in case of Lalitha Kumari (supra), the offence is registered against petitioner. At this stage, it would be relevant to extract paragraph-120 of the said case, which is as follows :- “120. In view of the aforesaid discussion, we hold: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint 16 and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity otherwise of the or information received but only to ascertain vi) whether the information reveals any cognizable offence. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/ laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 17 vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.” 15. In the matter of Rajeev Ranjan (supra), the Hon’ble Supreme Court has held as follows :- “24. Having regard to the circumstances narrated and explained above, we are also of the view that an attempt is made by the respondent to convert a case with civil nature into a criminal prosecution. In a case like this, the High Court would have been justified in quashing the proceedings in exercise of its inherent powers under Section 482 of the Code. It would be of benefit to refer to the judgment in Indian Oil 22 Corpn. v. NEPC India Ltd., wherein the Court adversely commented upon this very tendency of filing 18 the criminal complaints even in cases relating to commercial transaction for which civil remedy is available or has been availed.........” 16. Reverting to the facts of the case at hand in the light of above judicial precedents, it is quite vivid that the civil suit in the present case in respect of subject property is already pending and during pendency of civil suit or in between, two FIRS have been registered, firstly FIR bearing No.0049/2021 dated 21.01.2021 registered at Police Station Supela District Durg for the offence punishable under Sections 420, 34 of IPC and thereafter, impugned FIR bearing No.0546/2024 dated 30.10.2024 registered at Police Station Durg Kotwali, District Durg for the offence punishable under Section 420 of IPC. The police authorities have altogether ignored the aspect of pendency of civil suit and also the law that failed civil transaction will not give rise to criminality. 17. Keeping the facts of present case in juxtapose with the law laid down in the matters of Sarabjit (supra) and Vijay Kumar Ghai (supra), one and only conclusion which may be drawn is that registration of present FIR is not only abuse of process of court and abuse of process of law. 18. Considering the matter in its entirety as well as further considering the submissions on behalf of the parties as also the fact that for the same cause of action, two FIRs cannot be lodged and that too by the same complainant, and therefore allowing the trial to proceed further in the present FIR i.e. the second FIR, would be nothing but a futile 19 exercise. Accordingly, we hereby quash the FIR dated 30.10.2014 registered vide Crime No.0546/2024 at Police Station Durg Kotwali, District Durg for the offence punishable under Section 420 of the IPC. It is made clear that all the subsequent proceedings originated from the said FIR, shall also stand set aside. 19. Resultantly, the writ petition is allowed to the extent indicated herein-above. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu
Arguments
petitioner herein, namely Smt. Rekha Bai and sister-in-law, namely Sakun Bai have agreed to sell their property to respondent No.2. After entering into agreement, certain amount has been obtained, but sale deed has not been executed, therefore, Civil Suit No.67A/2022 has been filed before learned 4th Additional District Judge, Durg. Respondent No.2 has not only set the civil law in motion, but also prior to that lodged First Information Report (‘FIR’) against the petitioner bearing No.0049/2021 under Sections 420, 34 of Indian Penal Code, 1860 (‘IPC’), in which charge-sheet has already been filed under Charge Sheet No.33/2021 under Sections 420, 34 of IPC. In the said matter, the petitioner herein, seller Sakun Sahu, Rekhu Sahu and one Dorelal Sahu were made accused and arrested on 22.01.2021. Since 4 the petitioner and others have been arrested in respect of aforementioned crime number, in the Court premises of District Court, Durg an agreement dated 27.01.2021 has been entered into that respondent No.2 will cooperate in release of sellers etc. who were behind the bars and thereafter as soon as they came out, they will execute the sale deed in respect of property in question in favour of respondent No.2 within six months. Other conditions as agreed were also incorporated in agreement and a copy of agreement/consent letter, which bears signature of petitioner and respondent No.2 herein. Thereafter, the accused persons in aforementioned crime number have been released on bail, however, since the petitioner has not taken steps for execution and registration of sale deed in favour of respondent No.2, instant FIR has been lodged by police under Section 420 of IPC. 5. Learned counsel for the petitioner submits that a bare perusal of agreement and FIR (Annexure P-1) shows that merely as per terms agreed, the sale deed has not been registered after the release of the sellers etc. on bail, therefore, the same has been treated as cheating by the police authorities and although FIR has been registered on 30.10.2024 i.e. after coming into force of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) the registration of FIR is under IPC most likely for the reason that incident is of 27.01.2021 as per FIR and the place of occurrence as shown in the FIR is the District Court premises Durg. He further submits that an agreement has been entered into between certain parties that sale deed will be registered within six months and since the petitioner herein was procrastinating the 5 registration of sale deed and cheques given have been returned unpaid and dishonour, therefore, the same has been treated as offence of cheating as defined under Section 415 of the IPC. It is contended that the circumstances are speaking for itself and the maxim res ipsa locutor squarely applies in the present case. Even for the sake argument, it can be said that since incident is of the year 27.01.2021 on which date the BNSS has not been come into operation, then also merely after release of accused on bail, registration of sale deed has not taken place, it cannot be said that cheating as defined under Section 415 of IPC has been made out, which is punishable under Section 420 of IPC. It is further contended that in totality of circumstances i.e. on the basis of averments contained in FIR, it cannot be said act of petitioner comes within the purview of any offence much less offence under Section 420 of IPC, therefore, the FIR is liable to be quashed. It is submitted that the conspectus of the case is an arm twisting method to settle the civil suit pending consideration of the trial court concerned and instead of obtaining a decree from civil Court the complainant has resorted to criminal process by filing FIR and surprisingly the police have registered the case under section 420 of IPC on 31.10.2024 as after giving consent for release of accused persons on bail in earlier criminal case, since the terms agreed have not been followed, it has been understood by the police authorities that the same amounts to cheating in the eyes of law although the submission of present applicant is that the same is abuse of process of law and abuse of process of law and in these circumstances when the process of law has been abused and there are 6 fair chances of the success of the applicant in the matter, either in quashment petition to be filed before this Hon'ble Court, as advised, or fair chances of acquittal in criminal case, this is the fit case for quashment of FIR etc. It is further submitted that the very registration of FIR without following the procedure and in respect of matter, which is predominantly civil in nature amounts to abuse of process of Court as also abuse of process of law and further in violation of petitioner's fundamental and constitutional rights. It is contended that treating entire complaint of complainant as truth then also it only reveal that certain agreements were entered and in which the obligation has not been fulfilled by the parties to agreement and in other words, the person aggrieved has remedy to approach civil court and may not be permitted to resort to criminal proceedings, as such, the present case comes within the purview of abuse of process of Court, therefore, present FIR is liable to be quashed. He lastly argued that the criminal prosecution should not be used as an instrument to settle private or personal vendetta or to pressurize petitioner, hence, the impugned FIR deserves to be quashed. 6. Learned counsel for the petitioner placed reliance upon the judgments rendered by Hon’ble Supreme Court in the matters of Indal Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, Lalitha Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1, Rajeev Ranjan v. R. Vijay Kumar, (2015) 1 SCC 513, M. Suresh v. State of Andhra Pradesh, (2018) 15 SCC 273, Vijay Kumar Ghai v. State of West Bengal, (2022) 7 SCC 124 and Sarabjit v. State of Punjab, (2023) 5 SCC 360, to buttress his submissions. 7 7. On the other hand, learned State counsel submits that the FIR cannot be quashed particularly when there is sufficient evidence available on record to put the accused person to trial. He further submits that all submissions raised on behalf of the petitioner relates to question of fact, that can be considered during the course of trial and that cannot be considered at this stage, as such, it is the case where the petition deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. Perusal of the record would reflect that vide agreement dated 03.07.2019, wife of the petitioner, namely Smt. Rekha Bai and sister-in- law, namely Sakun Bai have agreed to sell their property to respondent No.2 and after entering into agreement, certain amount has been obtained, but sale deed has not been executed, therefore, Civil Suit No.67A/2022 has been filed before learned 4th Additional District Judge, Durg. Thereafter, respondent No.2 has lodged FIR against the petitioner bearing No.0049/2021 under Sections 420, 34 of Indian Penal Code, 1860 (‘IPC’), in which charge-sheet has already been filed under Charge Sheet No.33/2021 under Sections 420, 34 of IPC. It has been further reflected from the record that vide agreement dated 27.01.2021 entered into between the petitioner and respondent No.2 to the effect that they will execute the sale deed in respect of property in question in 8 favour within six months and only after that, accused persons in aforementioned crime have been released on bail, however, since the petitioner has not taken steps for execution and registration of sale deed in favour of respondent No.2, instant FIR bearing No.0546/2024 dated 30.10.2024 has been lodged by respondent No.2 at Police Station Durg Kotwali, Dsitrict Durg (C.G.) for the offence punishable under Section 420 of IPC. 10. In the matter of Sarabjit (supra), the Hon'ble Supreme Court has laid down that in case of breach of contract, damages/compensation or specific performance of contract merely on allegation to keep up promise will not be enough to initiate criminal proceedings. Paras-10 and 13 of the said judgment since relevant is quoted below:- “13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the 9 offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court.” 11. In the matter of M. Suresh (supra), the Hon'ble Supreme Court has laid down the law in Para-10 as under:- “10. We find from the documents on record, particularly the counter-affidavit of the respondent himself and the cancellation deed dated 9-10-2006 filed along with the counter- affidavit that the dispute between the parties is purely of civil nature. Even the stand of the complainant is that the matter has already been resolved and the complainant has already received the amount of Rs 95 lakhs against the payment of Rs 85 lakhs. However, according to him, the appellants 10 were liable to pay further sum of Rs 30 lakhs as the cheques for the said amount have been dishonoured. Mere fact that the cheques have been dishonoured and the appellants may be liable to pay further amount to the complainant will not by itself make out a case of cheating. It is a dispute for which the respondent complainant can take his remedies under the law. We are conscious that merely because a case involves a civil dispute does not by itself bar remedy under criminal law if a case is made out. At the same time, process of criminal law cannot be pressed into service merely for settling a civil dispute when no offence is committed. …” 12. In the matter of Indal Mohan Goswami (supra), the Hon'ble Supreme Court has laid down the law and held in paragraph-22 as follows :- “22. The veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and Respondent 3 has already instituted a civil suit in the Court of the Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court.” 13. In the present case offence of cheating as defined under Section 11 415 and punishable under Section 420 of IPC, has been registered. the law summarized in this regard in the matter of Vijay Kumar Ghai (supra), in which Hon’ble Supreme Court has observed as follows :- “31. Section 415 IPC defines "cheating" which reads as under: “415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property. or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".” The essential ingredients of the offence of cheating are: 1. Deception of any person 2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property: or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 50 deceived, and 12 which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 37. The following observation made by this Court in Uma Shankar Gopalika v. State of Bihar [Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 (2006) 2 SCC (Cri) 49] with almost similar facts and circumstances may be relevant to note at this stage (SCC pp. 338-39, paras 6-7) "6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of the complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-BIPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000 to the complainant out of that but the same has never been paid.... It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the consumer forum in relation 13 to the claim of Rs 4,20,000. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case, it has nowhere been stated that at the very inception that there was intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-BIPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482CrPC which it has erroneously refused." 38. There can be no doubt that a mere breach of contract is not in itself a criminal 14 offence and gives rise to the civil liability of