Praveen Jaiswal @ Praveen Kumar Jaiswal v. The State of Jharkhand

3. The brief facts of the case is that the petitioner is a lawyer and by way of cheating, he has fraudulently got a sale deed executed by the complainant in his favor by making the complainant believe that the complainant is executing the sale deed in respect of one unit of flat but in fact, by manipulation and suppression of fact and cheating ensured that the sale deed contains the description of the two flats being transferred by way of sale deed by the 2 Cr.M.P. No. 1616 of 2022 complainant to the petitioner. Learned Magistrate on the basis of the complaint, statement on Solemn Affirmation and statement of the inquiry witnesses, has found the prima facie case against the petitioner to proceed against him for having committed the offences punishable under Sections 406 and 420 of the IPC and took cognizance of the said offences against the petitioner only.

4. It is submitted by the learned counsel for the petitioner that the allegation against the petitioner is false. It is then submitted that in fact, the petitioner has purchased two units of flats for a total consideration for Rs. 31,00,000/- and father of the complainant also signed some of the securities including the tripartite agreement by the seller and purchaser petitioner, as required by the bank and there is no ambiguity in the sale deed and the same in no uncertain manner, reveals that the two flats were sold to the petitioner by the father of the complainant who was the original complainant and the present complainant has stepped into the shoes of his father after his death. It Is further submitted that prior to filing of the complaint, the complainant instituted Title Suit no. 705 of 2016 on 19.12.2016 for declaring the sale deed dated 26.02.2014 as null and void and thereafter filed this criminal case with ulterior motive just to harass the petitioner and the name of the petitioner has been duly mutated in the records in the office of the Ranchi Municipal Corporation and he has been possessing the same. This case has been filed as a counter-blast to the complaint made by the petitioner against the Ranchi Municipal Corporation and the police. It is further submitted that inconsistency in the allegation made against the petitioner. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corporation vs. The NEPC India and Others reported in 2006 (6) SCC 736, it is submitted by learned counsel for the petitioner that in the said case, the Hon’ble Supreme Court of India has relied upon the judgment in the case of G. Sagar Suri and Another vs. State of UP and Others reported in 2000 (2) SCC 636, wherein the Hon’ble Supreme Court of India has observed that the matter , 3 Cr.M.P. No. 1616 of 2022 which is essentially of civil nature, has been given a cloak of criminal offence and jurisdiction under Section 482 of Cr.P.C has to be exercised to prevent abuse of the process of any court.

5. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of the B. Suresh Yadav vs. Sharifa Bee & Another reported in 2007 (13) SCC 107, para 12 and 13 of which, reads as under :- “12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute.

13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30-9-2005 and the purported demolition took place on 29-9-2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so.” and submits that when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by the complainant in a civil suit, the same assumes significance but it is fairly submitted by the learned counsel for the petitioner that the judgment is not very much relevant to the case as in this case, there is no inconsistency between the case of the complainant mentioned in the complainant and the civil suit.

6. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vinod Natesan vs. The State of Kerala and Others reported in 2019 (2) SCC 401 wherein the Hon’ble Supreme Court of India in the facts of that case, is of the opinion that no offence was made out, as ingredients of Section 406, and 420 of IPC were not made out in the facts of that case and upheld the order passed by the High court. 4 Cr.M.P. No. 1616 of 2022

7. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Usha Chakraborty and Another vs. State of West Bengal and Another reported in 2023 SCC OnLine SC90, para 15 and 16 of which reads as under:- “15. The materials on record pertaining to the said pleadings instituted in the Civil Suit, produced in this proceeding would reveal that the respondent was in fact ousted from the membership of the trust. In the counter affidavit filed in this proceeding, the respondent has virtually admitted the pendency of the suit filed against his removal from the post of Secretary and the trusteeship and its pendency. The factum of passing of adverse orders in the interlocutory applications in the said Civil Suit as also the prima facie finding and conclusion arrived at by the Civil Court that the respondent stands removed from the post of Secretary and also from the trusteeship are also not disputed therein. Then, the question is why would the respondent conceal those relevant aspects? The indisputable and undisputed facts (admitted in the counter-affidavit by the respondent) would reveal the existence of the civil dispute on removal of the respondent from the post of Secretary of the school as also from the trusteeship. Obviously, it can only be taken that since the removal from the office of the Secretary and the trusteeship was the causative incident, he concealed the pendency of the civil suit to cover up the civil nature of the dispute.

16. By non-disclosure the respondent has, in troth, concealed the existence of a pending civil suit between him and the appellants herein before a competent civil court which obviously is the causative incident for the respondent's allegation of perpetration of the aforesaid offences against the appellants. We will deal with it further and also its impact a little later. There cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr. P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. A bare perusal of the said allegation and the ingredients to attract them, as adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment.” and submits that when the complainant conceals the pendency of the civil suit to cover up the civil nature of the 5 Cr.M.P. No. 1616 of 2022 dispute , the same is a circumstance, which will go against the complainant.

8. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Paramjeet Batra vs State of Uttarakhand & Others reported in (2013) 11 SCC 673, para 12 of which reads as under: “ 12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court..” and submits that since the civil remedy is available and is in fact adopted, as has happened in this case also, this court should not hesitate to quash the criminal proceeding to prevent abuse of process of law.

9. Learned counsel for the petitioner lastly relies upon the judgment of the Hon’ble Supreme Court of India in the case of Prof. R.K. Vijayasarathy & Another vs. Sudha Seetharam & Another reported in (2019) 16 SCC 739 para 29 of which reads as under: “29. In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed.” and submits that as in that case, the averments of the complaint, did not disclose the ingredients, necessary to constitute the offence under the penal provisions of the IPC, hence, the Hon’ble Supreme Court of India observed that the complaint constitute the abuse of process of court and thus is liable to be quashed, hence, it is submitted that the entire criminal proceeding as well as the order taking cognizance dated 04.03.2020 passed by learned JMFC, Ranchi be quashed and set aside. 6 Cr.M.P. No. 1616 of 2022

10. Learned Spl.P.P. appearing for the State and learned counsel for the opp. party no. 2, vehemently opposes the prayer for quashing entire criminal proceeding as well as the order taking cognizance dated 04.03.2020 passed by learned JMFC, Ranchi. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of K. Jagadish vs Udaya Kumar G.S. and Another reported in (2020) 14 SCC 552 para 8 of which reads as under: “8. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.” and submits that if a civil remedy is availed by a party, he is not precluded from setting in motion the proceeding in criminal law. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corporation vs. The NEPC India Ltd. and Others reported in 2006 (6) SCC 736 (supra), learned Spl. PP submits that a given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence and as in this case, the petitioner has cheated and induced the complainant to sign and present for registration of sale deed by way of cheating, so this is a case, where both civil wrong as well as criminal offence is made out. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Pratibha Rani vs Suraj Kumar & Another reported in (1985) 2 SCC 370, para 21 of which reads as under: “21. After all how could any reasonable person expect a newly married woman living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to us that even if the personal property of the wife is jointly kept, it would be deemed to be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of Section 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like 7 Cr.M.P. No. 1616 of 2022 arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.” which is a judgment of three Judges Bench, it is submitted by the learned Spl. PP that it is a settled principle of law, that as there are a large number of cases where criminal law and civil law can run side by side, the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life and it is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. It is next submitted by learned counsel for the Opp. Party no. 2 that merely filing a civil suit will not debar the complainant from proceeding ahead with the complaint when the offence punishable under Section 420 of IPC is made out and also other offences are made out against the petitioner. It is further submitted by learned counsel for the Opp. Party no. 2 that the ground upon which, the quashing of the cognizance order is sought, is basically the defence of the petitioner which, can only be considered by the trial court at appropriate stage of the trial and certainly, the jurisdiction of this court under Section 482 of Cr.P.C cannot be utilized to hold a mini trial and come to a conclusion that the petitioner is not guilty of the allegation, hence, is submitted this criminal miscellaneous petition being without any merit be dismissed.

11. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in view of the principle of law reiterated by the Hon'ble Supreme Court of India, in the case of K. Jagadish vs. Udaya Kumar G.S. and Another (supra) , this court 8 Cr.M.P. No. 1616 of 2022 has no hesitation in holding that if the civil remedy is available by the party, he is not precluded from setting in motion the proceeding in criminal law.

12. Now coming to the facts of the case, the petitioner has allegedly fraudulently, obtained a sale deed by way of cheating the complainant so, this court has no hesitation in holding that this is a case where criminal law and civil law run side by side and certainly, the remedies of this case and the remedy of cancellation of sale deed sought in the civil suit, differ in their consequence and the allegations made in the petition, prima facie, makes the offence punishable under Section 406 of IPC as well as other penal provisions of law.

13. Under such circumstances, this court is of the considered view that this is not a fit case, where the entire criminal proceeding as well as the order taking cognizance dated 04.03.2020 passed by learned JMFC, Ranchi be quashed and set aside.

14. Accordingly, this criminal miscellaneous petition being without any merit is dismissed and the interim order granted earlier stands vacated. High Court of Jharkhand, Ranchi Dated, the 6th December, 2023 Smita /AFR (Anil Kumar Choudhary, J.)