ABDUL MAJEED BHAT & ANR v. UT OF J&K & ORS

Section 156(3) of the Cr. P. C. Challenge has also been thrown to FIR No.208/2021 for offences under Section 420/506 of IPC registered with Police Station, Budgam, pursuant to the aforesaid order of the learned trial Magistrate. 2 CRM(M) No.218/2021 CrlM No.827/2021 2) It appears that the private respondents had filed a complaint before the learned trial Magistrate alleging therein that they have purchased land measuring 4 kanals 15 marls falling under Survey Nos.67, 68 and 69 situated at Gulwanpora Budgam for an agreed sale consideration of Rs.1, 38, 70,000/ from the accused/petitioners herein. It was further averred that the accused/petitioners have received a sum of Rs.1, 13,70,000/ from the private respondents and that it was agreed between the parties that the balance amount of Rs.25.00 lacs shall be paid by the complainants/private respondents accused/petitioners at the time of execution and registration of the sale deed, however, the possession of the land was handed over to the complainants/private respondents. It was further alleged that the accused/petitioners were approached the complainants/private respondents for transferring their name but accused/petitioners, in order to cheat them refused to do so. It was also alleged that a few days back the petitioners/accused came on spot and they assaulted the complainants/private respondents, restrained them from moving from that place and further made it clear that they will not transfer the land in the name of the complainants/private respondents and also threatened them with dire consequences. 3) The learned trial Magistrate forwarded the complaint to SHO, P/S, Budgam, with a direction to enquire into the matter under Section 156(3) of the Cr. P. C and submit a detailed report. It seems that 3 CRM(M) No.218/2021 CrlM No.827/2021 pursuant to this order, the impugned FIR came to be registered by the police. 4) The petitioners have challenged the impugned FIR as well as the impugned order passed by the learned trial Magistrate on the ground that dispute between the parties is purely of civil nature and civil litigation relating to the same land is going on between the parties. The petitioners have placed on record copy of the plaint filed by petitioner No.1 in a suit filed against the private respondents wherein the said petitioner has sought a decree of permanent injunction in respect of the same land which is subject matter of the impugned FIR. The petitioners have also placed on record a copy of the written statement that has been filed by the private respondents in the said suit. The petitioners have further placed on record a copy of the plaint filed by private respondents in a suit filed by them against the petitioners whereby they have sought specific performance of contract. The subject matter of the suit is also the same land which is subject matter of the impugned FIR. A copy of the order dated

29.06.2021 passed by Sub Judge, Budgam, in the suit filed by petitioner No.1 has also been placed on record whereby an interim injunction has been granted in favour of the plaintiff in the said suit. 5) The official respondent has filed its response and the Case Diary has also been produced. The private respondents despite service did not choose to contest the case. 4 CRM(M) No.218/2021 CrlM No.827/2021 6) I have heard learned counsel for the petitioners and respondent No.1. I have also perused the material on record including the Case Diary. 7) As is clear from the contents of the impugned FIR and the documents placed on record by the petitioners along with their petition, there appears to be a dispute between the petitioners and the private respondents relating to the land which is subject matter of the impugned FIR. It appears from the contents of the impugned FIR that the private respondents claim that they have purchased the land in question from the petitioners and paid substantial amount of sale consideration to them. They also claim that the petitioners are refusing to execute the sale deed in respect of the land in question in their favour despite having received a substantial amount of sale consideration 8) The question that falls for determination is whether in the face of the aforesaid nature of dispute between the parties, it would be open to a criminal court/police to set the law into motion at the instance of one party to the dispute against the other. 9) The Supreme Court in the case of M/S Indian Oil Corporation vs. M/S NEPC India Ltd. &Ors (2006) 6 SCC 736,while dealing with the question as to in what circumstances criminal proceedings can be set into motion even in respect to contractual matters, noticed its earlier judgments on the issue relating to exercise of jurisdiction under 5 CRM(M) No.218/2021 CrlM No.827/2021 Section 482 of Cr. P.C to quash the complaints and criminal proceedings and observed as under: “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few – Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajan lal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv)The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the 6 CRM(M) No.218/2021 CrlM No.827/2021 complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) 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. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

14.While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” 10) From the aforequoted principles of law, it is clear that before deciding as to whether proceedings in a criminal complaint are to be quashed, the Court has to be satisfied that the subject matter involved in the complaint is a purely civil wrong and it has no criminal texture to it. 11) In the light of the aforesaid legal position, let us now analyze the facts of the instant case. As already noted, the private respondents claim that the petitioners have agreed to sell the land in question for a sale consideration of Rs.1, 38, 70,000/, out of which they have received a sum of Rs.1,13,70,000/ from the private respondents 7 CRM(M) No.218/2021 CrlM No.827/2021 leaving a balance amount of Rs.25.00 lacs. According to the private respondents, they have already taken over the possession of land in question but the petitioners are refusing to execute the sale deed in their favour. The material on record suggests that the private respondents have already filed a suit for specific performance of contract against the petitioners before the civil court in this regard. It further appears that the petitioners have also filed a suit against the private respondents seeking permanent prohibitory injunction against them. The subject matter of the said suit is the same land which is subject matter of the impugned FIR. 12) From the aforesaid material on record which includes the documents placed on record by petitioners before this Court, one thing becomes clear that there is a civil dispute going on between the parties relating to the land which is subject matter of the impugned FIR. It is for this reason that the private respondents have filed a suit against the petitioners before the civil court and the petitioners have also filed a civil suit against the private respondents. The dispute between the parties is, therefore, essentially of a civil nature. Merely because the private respondents have, in their complaint, alleged that they have been cheated by petitioners, does not give criminal texture to the dispute between the parties. 13) It is a settled position of law that in order to constitute an offence of cheating, it must be shown that the accused had dishonest intention at the time when the transaction was entered into between 8 CRM(M) No.218/2021 CrlM No.827/2021 the parties. Merely because a dispute has arisen out of a commercial transaction between the parties does not give rise to the offence of cheating. In the instant case, the petitioners, upon receipt of part of sale consideration, have even delivered possession of the land in question to the private respondents, as is claimed by the private respondents. Therefore, it cannot be stated that the petitioners had no intention of honouring the contractual obligations at the time when the same was entered into by the parties. Thus, the offence under Section 420 of IPC is not made out in this case, even if the contents of the impugned FIR are taken at its face value. 14) So far as the offence of criminal intimidation is concerned, the private respondents have, their complaint, made omnibus allegations against the petitioners without giving particulars of the nature of threat that was alleged to have been extended to them by the petitioners. Without disclosing specific particulars of the alleged threat, the offence of criminal intimidation is not made out. 15) It seems that the private respondents are in hurry to get the results as per their desire and they have no patience in waiting for the outcome of the civil suit for specific performance of agreement filed by them against the petitioners. It seems that the respondents have resorted to criminal proceedings against the petitioners with a view to coerce them to settle a purely civil dispute. 9 CRM(M) No.218/2021 CrlM No.827/2021 16) The Courts have time and again discouraged and frowned upon the tendency to settle matters of purely civil nature by setting into motion criminal proceedings. In this regard, it would be apt to quote the following observations of the Supreme Court in the case of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751: “This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.” 17) Again, in Randheer Singh v. The State of UP and others, (2021) 4 RCR (Criminal) 496, the Supreme Court has held that the criminal proceedings should not be permitted to generate into weapons of harassment. 18) In view of the foregoing discussion, it is clear that the instant case is a classic example of respondent/complainant trying to settle a purely civil dispute relating to specific performance of contract by way of criminal proceedings. Besides this, the offences alleged in the complaint are not made out even if the allegations made in the complaint and the material attached thereto are taken at their face value. Thus, it is a fit case where this Court should exercise its powers 10 CRM(M) No.218/2021 CrlM No.827/2021 under Section 482 of Cr. P. C to prevent the abuse of process of law and to secure the ends of justice. 19) Accordingly, the petition is allowed and the impugned FIR No.208/2021 for offences under Section 420/506 of IPC registered with Police Station, Budgam, and the proceedings emanating therefrom are quashed. 20) The Case Diary be returned to the learned counsel for respondent No.1. 21) Copy of the order be sent to the learned trial Magistrate for information. Srinagar, 21.07.2022 “Bhat Altaf, PS” (SANJAY DHAR) JUDGE Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No