Prashant Kumar Agarwal, J. - (1.) THE accused -petitioners have filed this Criminal Misc. Petition under Section 482 Cr.P.C. with a prayer to quash and set aside the FIR No. 75/2013 registered at Police Station, Shivdaspura, Jaipur Rural for the offences under Sections 420, 406, 467, 468, 471 and 120 -B IPC mainly on the ground that the dispute between the parties at the most is of civil nature to which colour of criminality has been given.
(2.) BRIEF relevant facts for the disposal of this petition, as emerged from the complaint, material filed by the petitioner alongwith the petition and the evidence so far collected during investigation which is available on case diary, may be stated as below: - - "(1) Accused -petitioner -Shri Raghunath Meena agreed to sell and respondent -complainant -Shri Kishan Kumar agreed to purchase the disputed land in lieu of sale consideration of Rs. 1,15,14,000/ - and petitioner -Shri Raghunath Meena received Rs. eight lacs in cash from complainant as advance and it was agreed between them that petitioner would execute registered sale -deed in favour of complainant within a period of fifteen months after obtaining the remaining amount of sale consideration. The petitioner also executed an agreement to sell, power of attorney and receipt in favour of the complainant on 14.11.2011. It is pertinent that petitioner No. 2 -Shri Sheoji Ram, being son of Shri Raghunath Meena put his signature on the agreement as a witness and transaction between petitioner No. 1 and complainant was taken place in his presence. (2) A public notice was published on behalf of the respondent -complainant on 09.01.2013 in news paper 'Rajasthan Patrika' to the effect that petitioner -Shri Raghunath Meena has agreed to sell the disputed land to complainant and in this respect he has executed an agreement to sell and power of attorney in his favour and the complainant is intending to get the registered sale -deed executed in his favour from the petitioner and, therefore, if any person has any objection in it, he may file his objections within a period of seven days. (3) A public notice came to be published in a newspaper on behalf of petitioner -Shri Raghunath Meen on 15.01.2013 whereby he denied the claim of complainant that the petitioner has agreed to sell the disputed land to him. It was also denied by the petitioner that he has executed an agreement to sell and power of attorney in favour of the complainant. It was claimed by the petitioner in the public notice that the complainant has got published the public notice dated 09.01.2013 on the basis of forged and fabricated agreement to sell and power of attorney. (4) FIR No. 49/2013 came to be registered at the instance of the petitioner on 06.02.2013 at Police Station Shivdaspura, Jaipur Rural against complainant for offences under Sections 420,467,468 and 471 IPC on the premise that the complainant on the basis of forged and fabricated agreement to sell and power of attorney is claiming that the petitioner has agreed to sell land in dispute to the complainant. (5) The complainant filed a complaint against petitioners and some other persons on 25.02.2013 in the Court of Metropolitan Magistrate No. 32, Jaipur Metropolitan, Jaipur for offences under Sections 420,406,467,468,471 read with Section 120 -B IPC alleging that petitioner -Shri Raghunath Meena agreed to sell land in dispute to him and in this regard an agreement to sell and power of attorney was also executed by petitioner in favour of the complainant and an amount of Rs. eight lacs was paid to the petitioner as advance on 14.11.2011 and on demand being made from time to time the rest of the amount of sale consideration was also paid by the complainant to the petitioner. The petitioner sold the land in dispute to one Shri Dev Narayan Meena by a registered sale -deed dated 17.01.2013. (6) During investigation specimen thumb impressions of petitioner were obtained and they were sent for comparison and examination with the thumb impressions on agreement to sell and power of attorney allegedly executed by petitioner in favour of complainant and as per FSL report dated 9.4.2014, it was found that the agreement to sell, power of attorney and receipt bear the thumb impressions of the petitioner. (7) As per factual report dated 08.07.2015 as a result of investigation it has been found that petitioners have committed offences under Sections 420,406 and 120 -B IPC." It was submitted by the learned counsel for the petitioners that even if for the sake of arguments allegations made in the FIR are accepted on their face value and are taken to be true and correct in its entirety, even then at the most it is a case of breach of contract on the part of the petitioners, but only by that reason criminal liability of any kind cannot be fastened upon them. According to learned counsel for the petitioners for an offence to be made out under Section 420 IPC, well settled legal position is that fraudulent and dishonest intention to deceive some person on the part of accused is to be disclosed at the time when promise or representation was made and offence under this provision cannot be made out merely because the accused failed to keep his promise or representation later on. According to him, it is a pure and simple case of breach of contract of sale which does not constitute offence of criminal breach of trust or cheating. According to him for an offence to be made out under Section 406 IPC, it is essential to show that some property was entrusted to the accused and he converted it for his own use, but in the present case no such allegation has been made even by the complainant himself. It was contended that merely because the petitioners obtained a part of sale consideration from the complainant and failed to execute registered sale -deed in his favour, rather executed a registered sale -deed in favour of a third party, it cannot be said that they have deceived the complainant or committed offence of criminal breach of trust. It was also submitted that although a written receipt dated 14.11.2011 is alleged to have been executed by the petitioner in respect of advance amount of sale consideration of Rs. eight lacs, but for remaining amount no such written document was executed by petitioner even according to complainant himself and, therefore, even at this stage of the proceedings it cannot be believed that the complainant paid rest of the amount to the petitioner without obtaining any written receipt. It was further submitted that as per the terms and conditions of the agreement to sell the complainant was obliged to pay remaining amount of sale consideration to petitioner within a period of fifteen months and when he failed to do so, the petitioner was entitled to cancel the agreement and to sell land in dispute to any other person. It was also submitted that it is not the case of complainant himself that the petitioner had no title in land in dispute or he entered into agreement to sell with complainant by concealing some material fact.
(3.) IN support of his submissions, learned counsel for the petitioners relied upon the cases of Murari Lal Gupta v. Gopi Singh reported in : (2005) 13 SCC 699, George Thomas v. State of Kerala reported in : 2012 (2) Criminal Court Cases 639 (Kerala), Ganesh Dan v. State of Rajasthan & Anr. reported in, 2012 (4) WLC (Raj.) 710, V.P. Shrivastava v. Indian Explosives Ltd. & Ors. reported in : 2010 (2) WLC (SC) Criminal, 704 and Dalip Kaur & Ors. v. Jagnar Singh & Anr. reported in : 2009 (2) WLC (SC) 415.;