Prashant Kumar Agarwal, J. - (1.) THE accused -petitioner has filed this Criminal Writ Petition under Article 226 of the Constitution of India with a prayer to quash the First Information Report No. 254/2011 registered at Police Station Chirawa (District Jhunjhunu) for the offences under Sections 418, 419, 420, 406 and Section 120 -B IPC.
(2.) BRIEF relevant facts for the disposal of this petition are that the respondent -complainant filed a complaint against the petitioner and his brother -Shri Nandlal for the offences under Sections 418, 419, 420, 406 and Section 120 -B IPC with the averment that the petitioner entered into on agreement to sell a Nohra admeasuring 120 ft. X 120 ft. with the complainant on 7.2.2008 in lieu of a total sale consideration of Rs. 27,11,000/ - and received Rs. 7,11,000/ - from the complainant towards part payment of the sale consideration and it was agreed by him that after obtaining the rest of the amount he will execute a registered sale -deed in his favour within a period of a month. It was further averred that on 3.3.2008, the complainant alongwith some other persons went to the petitioner and asked him to execute registered sale -deed in his favour after obtaining rest of the amount and the complainant in presence of the aforesaid persons paid Rs. 15 lacs in cash to the petitioner and it was agreed between them that the rest of the amount would be paid at the time of execution of the sale -deed. It was further averred that the petitioner did not appear on 3.3.2008 before the concerned Sub -Registrar for execution of the sale -deed and, therefore, it was further agreed that the petitioner would appear before the Sub -Registrar on 5.3.2008 and execute the requisite sale -deed, but even then he failed to do so. It was further averred in the complaint that in the month of June 2011 from some reliable source it came into the knowledge of the complainant that a suit is pending between the petitioner and his brother in a Civil Court. It was alleged by the complainant that despite the fact that the suit was pending between the petitioner and his brother in a Civil Court and stay order has also been passed by it, even then the petitioner obtained Rs. 15 lacs from the complainant on 3.3.2008. It was averred that the act of the petitioner and his brother amounts to offences under Sections 418, 419, 420, 406 and Section 120 -B IPC. The complaint so filed was sent for investigation under Section 156(3) Cr.P.C. to Police Station Chirawa and on that basis aforesaid FIR was registered and investigation commenced. In these circumstances, the present writ petition has been filed by one of the accused. It was submitted by the learned counsel for the petitioner that for the disposal of this petition following facts are relevant to be considered by the Court: - - "(1) Petitioner and his elder brother -Shri Nandlal had some joint property including the land in dispute situated at Chirawa (District Jhunjhunu) and by way of a family settlement dated 25.1.1979, petitioner and his brother agreed to divide their joint property and as a result thereof the land in dispute came in the exclusive share of the petitioner. In respect of the said partition written document dated 19.6.1987 and a notarized family settlement dated 20.6.1987 were also executed between petitioner and his brother whereby the plot in dispute came in the share of the petitioner whereas their joint residential house came exclusively in the share of Shri Nandlal, elder brother of the petitioner. (2) The land in dispute consists of two plots each having an area of 800 sq.yards bearing No. 122 -A and 122 -B and on the basis of family settlement arrived between petitioner and his brother, both these plots were entered exclusively in the name of the petitioner on 18.1.2008 in a record maintained by the Municipal Council, Chirawa. (3) Petitioner entered into agreement to sell with the complainant on 7.2.2008 in lieu of a total sale consideration of Rs. 27,11,000/ - and obtained from the complainant Rs. 7,11,000/ - as advance in cash and it was agreed that the petitioner would execute a registered sale -deed in favour of the complainant within a period of one month after obtaining remaining amount of sale consideration from him. (4) Brother of the petitioner -Shri Nandlal without any right and by concealing the fact of family settlement between him and the petitioner, on the basis of a sale -deed in his favour filed an application before the Municipal Council, Chirawa with a prayer that one of the aforesaid plots may be entered in his name in the record maintained by the Municipal Council and on the basis of that application, a public notice was issued by the Municipal Council on 20.2.2008. (5) When the fact of aforesaid application and public notice came into the knowledge of the petitioner, he filed Civil Suit No. 8/2008 on 25.2.2008 against his brother -Shri Nandlal and Municipal Council, Chirawa for permanent injunction mainly on the ground that both the aforesaid plots came into his exclusive ownership and possession as a result of family settlement arrived between the petitioner and his brother and since then he has also made substantial construction on a part of the land. (6) Vide order dated 27.2.2008 order of status quo was passed by the Court regarding the entries made in the record maintained by the Municipal Council and the Court also appointed a Commissioner to inspect the land in dispute and prepare inspection report. (7) In compliance of the order made by the Court the Commissioner so appointed inspected the disputed land and prepared inspection report dated 27.2.2008 in which apart from other facts, it was mentioned that the disputed land is in the possession of the petitioner. (8) When Shri Nandlal and his family members tried to interfere in the exclusive and peaceful possession of the petitioner, he lodged a report before Police Station Chirawa and after due inquiry a complaint under Section 107 read with Section 116(3) Cr.P.C. was filed by the SHO Police Station Chirawa against Shri Nandlal and his family members before the SDM, Chirawa. (9) Shri Nandlal, brother of the petitioner, filed his written statement in the aforesaid Civil Suit on 23.10.2008 with the averment that the family settlement arrived between him and the petitioner was never acted upon and the plot which was purchased by him by way of a sale -deed remained his exclusive property as it was before the said family settlement and the residential house is still their joint property. (10) After a lapse of about three years from the date of agreement the present FIR came to be registered on the basis of the complaint filed by the respondent -complainant."
(3.) IT was submitted by the learned counsel for the petitioner that even if for the sake of arguments the allegations and the averments made in the complaint/FIR are taken on their face value and are accepted to be true and correct in entirety, even then it is clearly revealed that the dispute between the parties is essentially of civil nature as at the most it can be said that the petitioner failed to execute registered sale -deed in favour of the complainant as stipulated between them even after obtaining a part of sale consideration, but the complainant with an ulterior motive to harass and pressurize the petitioner has lodged a false and concocted FIR which is nothing but an abuse of process of law. It was further submitted that on the basis of material made available on record it is clear that the land in dispute came in the exclusive ownership and possession of the petitioner and entry to that effect also made in the record maintained by the Municipal Council but brother of the petitioner without any right managed to cancel that entry which compelled the petitioner to file the aforesaid suit against his brother and the Municipal Council which is being hotly contested by his brother after filing detailed written statement, but the complainant after a lapse of more than three years from the agreement to sell has lodged the FIR although he from the very beginning was in the knowledge of the fact that a civil suit is pending between petitioner and his brother regarding the land in dispute and stay order has also been passed by the Court. It was also submitted that a false averment has been made in the FIR that the petitioner received a further amount of Rs. 15 lacs from the complainant on 3.3.2008. No receipt of any kind has been filed by the complainant in respect of such payment and it is beyond any imagination that he paid such a huge amount to the petitioner without obtaining a receipt for it. This false statement has been made only with an oblique motive to show that the petitioner obtained the aforesaid amount from the complainant although, he was not in a position to execute registered sale -deed in favour of the complainant as dispute has arisen between petitioner and his brother and stay order has also been passed by the Court concerned. According to learned counsel for the petitioner 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 the 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 petitioner even after receiving part of the sale consideration from the complainant failed to execute sale -deed in his favour, it cannot be said that he has deceived the complainant or committed offence of criminal breach of trust more particularly in view of the fact that the petitioner is unable to execute sale -deed by the reason that the dispute has arisen between him and his brother in respect of the land in dispute and a hotly contested civil suit is pending between them and stay order has also been passed by the Court concerned. It was also submitted that suit for permanent injunction has already been filed by the petitioner against his brother and the Municipal Council in respect of the land in dispute on the ground that he is exclusive owner of it and is also in its possession and till the issue of ownership and possession is decided by the Civil Court, the petitioner is not in a position to execute a registered sale -deed in favour of the complainant after obtaining the rest of the sale consideration. It was also submitted that the petitioner in view of the subsequent development requested the complainant to receive back the advance amount of Rs. 7,11,000/ - with interest but the complainant malafidely refused to accept the same and to harass and pressurize the petitioner lodged a false and concocted FIR. Petitioner is still ready and willing to refund the aforesaid amount alongwith the interest to the complainant in view of the aforesaid ongoing litigation. So far as offences under Sections 418 and 419 IPC are concerned, it was submitted that essential ingredients to constitute such offences are completely absent.;