Biswanath Banerjee … v. 1.The State of Jharkhand 2.Paramveer Kumar
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 408 of 2019 Biswanath Banerjee …… Petitioner Versus 1.The State of Jharkhand 2.Paramveer Kumar --------- ……. Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State
Legal Reasoning
“24. This Court in G. Sagar Suri v. State of U.P. [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 : 2000 SCC (Cri) 513] observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. 25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that : (Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , SCC p. 749, para 13) „13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying 6 pressure through deprecated and discouraged.‟ ” criminal prosecution should be to Para-12:- Having regard the above well-established principles and also noting that the present dispute is entirely with respect to property and more particularly buying and selling thereof, it cannot be doubted that a criminal hue has been unjustifiably lent to a civil natured issue.” 16. It is clear from the FIR that the petitioner has already retruned the cash considereation amount. 17. The present case is clearly of civil dispute and no criminal liability can be fixed upon the petitioner. 18. It transpires that vie order dated 17.01.2020 a Co-ordinate Bench of this Court (Justice Ananda Sen) had stayed the further proceeding of trial court in connection with Dhanbad P.S. Case No.361 of 2017, corresponding to G.R. No.2762/2017 and hence framing of charges, if any, against the petitioner will be illegal. 19. It also appears that the informant does not want to proceed the case against the petitioner and does not want to take further step in the case and does not want to contest the case. 20. In view of the law laid down by the Hon’ble Supreme Court and in the facts and on the circumstances of this case, the impugned order dated 13.02.2019 passed by Sri A.K. Tiwari, learned Judicial Magistrate, Ist Class, Dhanbad in G.R. Case No.2762 of 2017 arising out of Dhanbad P.S. Case No.361 of 2017 is set aside and the Cr. Revision No.408 of 2019 is allowed and the petitioner namely Biswanath Banerjee is discharged in connection with Dhanbad P.S. Case No.361 of 2017, corresponding to G.R. No.2762/2017. 21.
Arguments
---------- : Mr. Amit Kumar Das, Advocate : Mr. Suraj Deo Munda, APP --------- Oral Order in Court 07/Dated:08th September, 2023 This Criminal Revision No.408 of 2019 has been filed on behalf of the petitioner by challenging the order dated 13.02.2019 passed by Sri A.K. Tiwari, learned Judicial Magistrate, Ist Class, Dhanbad in G.R. Case No.2762 of 2017 arising out of Dhanbad P.S. Case No.361 of 2017 by which the discharge petition filed by the petitioner under section 245 of the Cr.P.C has been rejected. 2. The prosecution case, in brief, is that the informant-O.P. No.2 had entered into an agreement with the petitioner for sale of land of Mouza Hirapur, Dhanbad, Khata No.112, Plot No.385 (part), measuring an area of 8 Kathas on payment of Rs.1,15,00,000/- and for which he has paid Rs.4,51,000/- by cheque. However, after execution of the agreement, the petitioner avoided to execute sale deed by asking the informant to pay Rs.30,00,000/- in cash and refused to take the amount by cheque. It is also alleged that the petitioner has returned the amount and refused to execute the sale deed. 3. Heard Sri Amit Kumar Das, learned counsel for the petitioner and Mr. Suraj Deo Munda, learned APP for the State. 4. No one appears for the O.P. No.2 despite sending notice vide order dated 17.01.2020 passed by the Co-ordinate Bench of this 2 Court and the O.P. No.2 did not appear even on 08.08.2023 when the matter was placed before this Court. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the learned Court below is illegal and not sustainable in the eye of law. It is submitted that it is a case of civil dispute and the petitioner has returned the entire money which is evident from the F.I.R. itself. It is submitted that there is breach of contract and by not executing the sale deed may not amount to an offence of criminal dispute rather at best it is a civil dispute. However, it is submitted that even the informant has admitted that he does not want to contest the case before the court below by filing a petition. 6. Learned counsel for the petitioner in support of his contention has relied upon the judgment of the Hon’ble Supreme Court which are as follows:- (i) (2005) 13 SCC 699, (ii) (2023) 5 SCC 360 and (iii) (2023) 6 SCC 109. 7. It is submitted that the petitioner has also challenged the order framing charges by filing Interlocutory Application and as such the being I.A. No.4860 of 2023 and Criminal Revision Application may be allowed as it is a case of civil dispute. 8. On the other hand, learned APP has opposed the prayer. It is submitted that the impugned order passed by the learned Court below does not require any interference. It is submitted that the petitioner despite entering into the agreement, has refused to execute the sale deed. It is submitted that mere returning of the amount to the informant will not absolve him of criminal liability. It is submitted that the charges have also been framed accordingly against the petitioner, hence the Criminal Revision Application may be dismissed. 3 9. Perused the records of this case, I.A. No.4860 of 2023 and considered the submissions made on behalf of both the sides. 10. It transpires that the F.I.R. was lodged on 26.07.2017 by the informant-O.P. No.2 against the petitioner for not executing the sale deed and also for returning the amount of Rs.4,51,000/-. 11. It appears from the F.I.R itself that the petitioner has broken and terminated the contract by returning the entire amount of Rs.4,51,000/-. 12. It also appears that the informant has knocked the door of the Police Station for not executing the sale deed which is also not appreciated. 13. It has been held by Hon’ble Supreme Court in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 at paragraph 6 as follows:- “Para-6:-. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the 4 petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent.” 14. It has been held by Hon’ble Supreme Court in the case of Sarabjit Kaur vs. State of Punjab and Anr. reported in (2023) 5 SCC 360 at paragraphs 12 and 13 as follows:- “Para-12:- There is nothing on record to suggest that any notice was issued by Respondent 2 or the vendee to the appellant to get the sale deed registered just either before expiry of the last date fixed for execution of sale deed or immediately thereafter. No civil proceedings were also initiated rather Respondent 2 proceeded only by filing complaints with the police two of which were earlier filed. Had there been any civil proceedings initiated, the question of readiness and willingness of the vendee is also an aspect to be examined by the court. Para-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 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.” 15. It has been held by Hon’ble Supreme Court in the case of Kunti and Anr. vs. State of Uttar Pradesh and Anr. reported in (2023) 6 SCC 109 at paragraphs 9 to 12 as follows:- 5 “Para-9:- However, we do not find the need to engage with the grounds as urged, because a perusal of the record in no uncertain terms reflects the dispute as being of a civil nature. of This Court Punjab [Sarabjit Kaur v. State of Punjab, (2023) 5 SCC 360] , observed that : (SCC p. 363, para 13) in Sarabjit Kaur v. State recently, “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.” Para-10:- A two-Judge Bench of this Court in ARCI v. Nimra Cerglass Technics (P) Ltd. [ARCI v. Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348 : (2016) 1 SCC (Cri) 269] , while deliberating upon the difference between mere breach of contract and the offence of cheating, observed that the distinction depends upon the intention of the accused at the time of the alleged incident. If dishonest intention on the part of the accused can be established at the time of entering into the transaction with the complainant, then criminal liability would be attached. Para-11:- In Vijay Kumar Ghai v. State of W.B. [Vijay Kumar Ghai v. State of W.B., (2022) 7 SCC 124 : (2022) 2 SCC (Cri) 787] , one of us, (Krishna Murari J.) observed in reference to earlier decisions as under : (SCC pp. 139-40, paras 24-25)
Decision
I.A. No.4860 of 2023 is allowed and stands disposed of. (Sanjay Prasad, J.) Saket/ N.A.F.R.