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Benu Kumar Ghose vs H arekr ushna M ahasuara on 21 April, 20 10

ORISSA HIGH COURT: CUTTACK

CRLMC No. 2136 of 2008

This is an application under Section 482 of the Code of Criminal Procedure. -----------

Benu Kumar Ghose ....... Petitioner -Versus-

Harekrushna Mahasuara ....... Opp. Party For Petitioner: M/s. Bigyan Kumar Sharma,

A.K.Mohapatra

and R.K.Sahu.

For Opp. Party: M/s. B.N.Das.

--------------

P R E S E N T:

THE HONOURABLE SHRI JUSTICE B.K.PATEL

--------------------------------------------------------------------------------------------------- Date of

Judgment: 21.4.2010

--------------------------------------------------------------------------------------------------- B.K.Patel, J.

Petitioner, who is accused in I.C.C.No.316 of 2007 instituted by opposite party-complainant in the

court of S.D.J.M., Puri, has filed this application under Section 482, Cr.P.C. for quashing the order

dated 9.10.2007 by which cognizance of offences under Sections 406 and 420, I.P.C. was taken and

process was issued for his appearance.

2. Complainant's case is that the accused executed an agreement for sale of his undivided share in

the property as described in the schedule to the agreement and with regard to which Civil Suitbearing C.S.No.148 of 2003 and I.A. No.114 of 2003 for injunction on the ground of preferential

right are subjudice in the court of Civil Judge 2

(Senior Division), Puri. In terms of the agreement, the complainant paid instalment of Rs.50,000/-

to the accused. Thereafter, the complainant sent a letter to the accused to come to Puri to execute

sale deed on receipt of balance consideration amount of Rs.3,25,000/-. The accused deliberately

returned the letter. Therefore, the complainant sent pleader notice, which was received by the

accused on 3.2.2006. Said letter was also cunningly returned by the accused. Thus, accused in

Kumar Ghose vs Harekrushna Mahasuara on 21 April, 2010 http://www.indiankanoon.org/doc/341242/?t

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stead of complying with the condition in the agreement to execute sale deed within two months,

has cheated the complainant for Rs.50,000/-. On the other hand accused in his reply to the

pleader notice stated that advance amount of Rs.50,000/- has been forfeited. On the basis of such

averments it was asserted by the complainant that the accused is liable to be proceeded for

commission of offences under Section 406, 420 and 506, I.P.C. On receipt of complaint petition,

statement of the complainant was recorded under Section 200, Cr.P.C. and enquiry was conducted

under Section 202, Cr.P.C., in course of which one witness was examined. On the basis of

averments made in the complaint petition, the statement of the complainant and the statement of

the witness, the impugned order was passed.

3. It was contended by learned counsel for the petitioner that the petitioner has a share in his

ancestral property situated at Puri. By agreement dated 19.4.2004 the petitioner agreed to sale his

undivided share over the property to the complainant for Rs.3,75,000/-. As per the terms and

conditions of agreement, the opposite party paid Rs.50,000/- 3

as first instalment and the balance amount of Rs.3,25,000/- was payable on or before 18.6.2004.

Despite repeated requests made by the petitioner, the opposite party failed to pay the balance

amount for which the petitioner suffered loss. In stead of instituting appropriate proceeding in

Civil Court, the petitioner has maliciously instituted I.C.C. 316 of 2007, though the dispute between

the parties is civil in nature. It was argued that plain reading of the complaint petition clearly

shows that petitioner's grievance relates to alleged violation of agreement for sale executed by the

parties. Even if averments made in the complaint petition are accepted on face value, the same do

not indicate commission of offence of either cheating or misappropriation. In support of his

contentions, learned counsel for the petitioner relied upon decisions of Hon'ble Supreme Court in

V. Y. Jose & Anr. V. State of Gujarat & Anr.: (2009) 42 OCR (SC) 488 and Devendra & Ors. v. Stateof U.P. & Anr.: (2009) 43 OCR (SC) 680, and of this Court in Lilasons Breweries Limited & another

v. Sujata Manjari Pati: (2009) 43 OCR 5.

4. In reply, it was contended that the petitioner took Rs.50,000/- from the opposite party without

any intention to transfer any property to the opposite party. In fact the petitioner did not have any

transferable right over the property described in the schedule to the agreement for sale. In spite of

steps taken by the opposite party to pay balance amount towards consideration, the petitioner did

not come forward to execute the sale deed. Therefore, it is obvious that the 4

petitioner never had any intention to sell his share in the property to the opposite party. However,

he induced the opposite party to pay to him Rs.50,000/- on false pretext.

5. In course of hearing, learned counsel for the petitioner produced in Court copy of the agreement

for sale dated 19.4.2004 executed by the petitioner on the first part and the opposite party on the

second part. Material part of the agreement containing the terms and conditions read as follows:

"W H E R E A S the First party is one of the owners of the property mentioned in Schedule below:-


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AND WHEREAS the said Vendor has agreed to sell his undivided share of the property mentioned

in the Schedule below at Puri in consideration of the sum of Rs.3,75,000/- (Rupees three lakhs

seventy five thousand) only to the purchaser;

AND WHEREAS the Vendor has received a sum of

Rs.450,000/- (Rupees Fifty thousand) only by instalment from the purchaser for sale and transfer

the said undivided share of the property mentioned in the Schedule below at Puri: NOW THISAGREEMENT WITNESSETH AND IT IS

HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO

as follows:

1. The purchaser shall pay the balance amount a sum of Rs.3,25,000/- (Rupees Three Lakhs

twenty five thousand) only to the vendor at the time of Registration of the said undivided share of

the said property in favour of the purchaser by a Sale Deed within two months from the date of

this Agreement i.e. 18.6.2004.

2. The purchaser shall pay the balance amount of money within two months from this Agreement

i.e. on 18.6.2004 otherwise the instalment money i.e. Rs.50,000/- (Rupees Fifty thousand) only

will be forfeited and the said agreement will be cancelled."

6. It is obvious that the petitioner explicitly agreed to sale his undivided share in the property

mentioned in the schedule to the agreement in his capacity as one of the owners for a total

consideration of Rs.3,75,000/-. It is also obvious that petitioner had already received sum of

Rs.50,000/- by the time the agreement was executed. It was 5

further stipulated that the petitioner would execute registered sale deed in respect of his

undivided share over the property and the opposite party will pay to the petitioner Rs.3,25,000/-

on or before 18.6.2004. In case opposite party failed to pay the balance amount on or before

18.6.2004, he shall forfeit the installment amount of Rs.50,000/- and the agreement shall stand

cancelled. It is alleged in the complaint that petitioner did not execute the sale deed in spite of the

fact that the opposite party was all along ready and willing to pay the balance consideration

amount of Rs.3,25,000/-. On a bare reading of the complaint petition, it is found that the

petitioner has not made out a case that at the time of execution of the agreement between the

parties there was dishonest intention on the part of the petitioner. Moreover, subject matter of

agreement for sale is the undivided share of the petitioner in the property described in the

schedule to the agreement. Petitioner has annexed pleader notice under Annexure-3 and reply

thereto under Annexure-4 to this application. Pleader notice under Annexure-3 does not bear any

date. In the said pleader notice the petitioner has been impressed upon that in case he failed or

neglected to carry out his part of the contract in terms of agreement dated 19.4.2004 within 15

days from the date of despatch of the notice, the opposite party shall institute suit for specific


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performance of the agreement along with prayer for damages and cost. In the reply to the pleader

notice dated 10.2.2006 under Annexure-4, it has been categorically mentioned that the pleader

notice was received by the petitioner on 3.2.2006. 6

While admitting execution of agreement to sale dated 19.6.2004, it has been mentioned therein

that in terms of agreement, installment amount of Rs.50,000/- paid by the opposite party has been

forfeited due to failure and negligence on the part of the opposite party to pay balance

consideration amount in spite of repeated requests for which the petitioner suffered loss. Also ithas been mentioned that in case the opposite party wanted to purchase petitioner's undivided

share in the property, he may contract afresh with the petitioner. Certified copy of the order sheet

in I.C.C.No.316 of 2007 reveals that the complaint petition was presented in Court on 7.8.2007.

7. Neither the complaint petition nor any of the circumstances narrated above indicate existence of

the dishonest intention on the part of the petitioner either at the time of execution of agreement or

thereafter. There is absolutely no doubt that the dispute between the parties relates to allegation of

breach of contractual obligation under the agreement to sale dated 19.4.2004. Existence of

dishonest intention is one of the essential ingredients of offence of cheating punishable under

Section 420,I.P.C. as well as misappropriation punishable under Section 406,I.P.C. It has been

reiterated in V.Y.Jose & Anr. (supra) that for the purpose of constituting an 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. Even in a case where allegations are made in regard to

failure on the part of the accused to keep his promise, in absence of a culpable intention at the

time of 7

making initial promise being absent, no offence under Section 420 of the I.P.C. can be said to have

been made out. It is well settled that where the allegations made in the first information report or

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 a case against the accused. High Court can exercise

inherent power under Section 482, Cr.P.C. in order to prevent abuse of the process of Court or

otherwise to secure the ends of justice for quashing the criminal proceeding. A matter which

essentially involves dispute of a civil nature should not be allowed to be the subject matter of

criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The

superior Courts with a view to maintain purity in the administration of justice, should not allow

abuse of the process of Court. They have a duty in terms of Section 483 of the Cr.P.C to supervise

the functioning of the Trial Courts. Placing reliance upon the decision in Mahindra & Mahindra

Financial Services Ltd. and another v. Rajiv Dubey, 2006 (Supp.1) OLR 240 this Court has pointed

out in Lilasons Breweries Limited & another (supra) that in the absence of any material on record

or even any allegation to the effect that the accused persons fraudulently or dishonestly deceived

or dishonestly misappropriated or converted to their own use or used, or disposed of any amount,

the order of taking cognizance was found to have passed without application of mind. Continuance

of the proceeding on the basis of such order was, therefore, held to be an abuse of process of Court.


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8

8. In view of the above, the CRLMC is allowed. The impugned order and the proceeding in 1.C.C.

No.316 of 2007 in the court of learned S.D.J.M., Puri are quashed.

.........................

B.K.Patel,J.

Orissa High Court, Cuttack

Dated 21st April, 2010/sks


benu kumar ghose vs harekrushna mahasuara on 21 april, 2010

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