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 FIR No. 257/2014 registered at Police Station Jhotwara, Jaipur for the offences under Sections 384, 406, 420 and 120 -B IPC mainly on the ground that the dispute between the parties is essentially of civil nature to which colour of criminality has been given by the respondent -complainant.
(2.) BRIEF relevant facts for disposal of this petition are that the respondent -complainant filed a complaint for the aforesaid offences against the petitioners and one Shri Roop Chopra on 2.4.2014 before the Additional Chief Metropolitan Magistrate No. 3, Jaipur Metropolitan, Jaipur with the averment that petitioner -Shri Harpreet Sachdeva came to the office of the complainant on 20.1.2013 and asserted that he is one of the Directors of a company namely Captivate Consultant Services Pvt. Ltd. which has authorized capital of Rs. 25 lacs and the present market value of the same is Rs. 15,58,61,000/ - and the company also owns a Plot No. C -1/1 situated at Jaisingh Highway, Banipark, Jaipur and the Directors of the company are interested to sell the aforesaid company and the plot. It was further averred that after perusing the relevant documents, the complainant agreed to purchase and the petitioners agreed to sell the aforesaid company and plot in lieu of a sale consideration of Rs. 15,58,61,000/ - and the complainant paid a total amount of Rs. 1,45,28,000/ - to the petitioners from time to time as part payment of the aforesaid sale consideration, but despite the demand made by him several times, the petitioner did not execute agreement to sell in writing and also did not issue receipt in respect of the amount received by them from the complainant. It was also averred that the petitioners also did not refund the aforesaid amount and when he made contact with them, they threatened him to dire consequences if he continues to demand for execution of agreement in writing and receipt. It was averred that the aforesaid act of the petitioners is offences punishable under Sections 384, 406, 420 read with Section 120 -B IPC. The complaint so filed was sent for investigation under Section 156(3) Cr.P.C. to Police Station Jhotwara, Jaipur where the aforesaid FIR was registered and investigation commenced. In these circumstances, the accused -petitioners have come to this Court by way of this petition. It was submitted by the learned counsel for the petitioners that even if the version of the incident and the allegations made in the complaint are taken to its face value and treated to be correct and true in its entirety, even then the dispute between the parties is disclosed to be of civil nature as according to the complainant himself the petitioners who are Directors of the aforesaid company failed to reduce in writing the oral agreement of sale allegedly entered into between the parties and they also did not issue receipt regarding part payment obtained by them from the complainant and they also did not refund the money received by them as advance from time to time. According to learned counsel for the petitioners it is an admitted fact that title -deeds of the company and the plot were shown to the complainant in advance and he after satisfying himself about the authenticity and validity of the title and possession of the company entered into oral agreement and paid part of the sale consideration from time to time. It was also submitted that it is the case of the complainant himself that he stopped payment of some cheques given by him to the company and payment of certain cheques was not obtained by petitioners. According to learned counsel for the petitioners at the most it is a case of breach of a contract on the part of the petitioners for which the complainant is free to pursue an appropriate civil remedy, but he has chosen a path of registration of FIR with a sole purpose to harass and pressurize the petitioners. It was also submitted that for an offence to be made out under Section 406 IPC, it is required to be shown that some property was entrusted to the accused or he had dominion over such property on behalf of the complainant, but he dishonestly misappropriated or converted the same to his own use or dishonestly used or disposed of it in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, express or implied, which the accused has made touching the discharge of such trust, or wilfully suffered any other person so to do. According to learned counsel for the petitioners for an offence of criminal breach of trust to be made out the most essential ingredient is the entrustment of some property to the accused, but in the present case even prima facie no such entrustment of any property was made by the complainant to the petitioners or to any of them. The present case is a simple case of sell and purchase of aforesaid company and plot by way of oral agreement between the parties in which part payment of sale consideration was also made to the petitioners by the complainant, but by any stretch of imagination it cannot be said that the petitioners were entrusted by the complainant of some property, or they had dominion over any property on behalf of the complainant. According to learned counsel merely because the petitioners entered into agreement of sell and also obtained part payment of sale consideration, any of the essential ingredients of offence of criminal breach of trust is not disclosed even prima facie. Similarly, it was submitted that for an offence to be made out under Section 420 IPC, it is to be shown that the accused cheated some one, but in the present case any of the ingredients of offence of cheating as defined under Section 415 IPC is present. Section 415 IPC provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to delivery any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. It was submitted that it is a well settled legal position that for an offence cheating to be made out, it is to be shown that the accused had a fraudulent or dishonest intention to deceive from the very beginning when a promise or representation was made and merely that he could not keep his promise subsequently, an offence of cheating cannot be said to be made out. According to learned counsel for the petitioners in view of the admitted position of the complainant himself that he entered into oral agreement to purchase the company and the plot in question after fully satisfying himself regarding title and possession of the petitioners, it cannot be said that the petitioners from the very beginning were having fraudulent or dishonest intention and merely because as per version of the complainant they failed to execute written agreement and receipts and also failed to refund the advance amount paid by the complainant, it cannot be said that they have cheated the complainant in any manner. Even if for the sake of arguments the version of the complainant is taken to be true entirely even then at the most it is a case of breach of contract on the part of the petitioners. It was submitted that although legal position is that for the same act of an accused civil and criminal proceedings can run simultaneously, but at the same time legally it is required that the act of accused must also disclose criminality in the sense that basic ingredients of an offence are present.
(3.) SO far as Section 384 is concerned, it was submitted that for that an offence to be made out, it is to be shown that the accused intentionally put any person in fear of any injury to that person or to any other and thereby dishonestly induced the person, so put in fear to deliver to any person any property or valuable security or anything signed and sealed which may be converted into valuable security. According to learned counsel for the petitioners for an offence of extortion as defined under Section 383 IPC, the threat must precede delivery of property and any subsequent threat in any manner is not relevant for an offence to be made out under this provision. In the present case it is not the case of the complainant himself that any part of the sale consideration was paid by him to the petitioners after he was put under fear of any injury by the petitioners or any of them. As per version made in the complaint at the most it is shown that when the complainant demanded from the petitioners to execute agreement to sell in writing and issue receipt in respect of advance payment made by him, he was threatened by the petitioners not to act in haste otherwise neither the company and plot would be transferred to him nor the amount already paid by him would be refunded. He was further threatened by the petitioners not to report the matter to police.;