PANWAR, J. - (1.) BY the instant criminal misc. petition under Section 482 Cr. P. C. , the petitioner seeks quashing of FIR No. 115/2001, Police Station, Sadar Bazar, Division-A, Jodhpur qua the petitioner for the offences under Sections 420, 463, 465, 467 and 120-B IPC.
(2.) I have heard learned counsel for the parties. Carefully gone through the FIR and the Police INvestigation Diary. The facts and circumstances giving rise to the instant petition are that the non-petitioners No. 2 to 5 (for short `the complainants' hereinafter) purchased land bearing Khasra No. 130 in village Mogada, Tehsil Luni, District Jodhpur which was titled as Plot No. 7 and divided in four plots, by a registered sale deed executed by one Vinod Kashyap who is power of attorney holder of Mohd. Asif and Mohd. Arif. After purchase of the said four plots which were originally plot No. 7, the complainants came to know that the said plot No. 7 has already been sold by Mohd. Asif and Mohd. Arif to present petitioner Dilip Kothari by a registered sale deed dated 4. 9. 96, whereas the power of attorney holder of Mohd. Asif and Mohd. Arif i. e. Vijay Kashyap executed the sale deed in respect of very plot by dividing in four plots on 24. 6. 1997 much after transferring the plot in favour of present petitioner. The allegation against the present petitioner is that he is a broker in the property dealings and he had knowledge that the said plot has already been purchased by him by registered sale deed dated 4. 9. 96, yet he allowed the power of attorney holder of Mohd. Asif and Mohd. Arif to transfer the plots in favour of the complainants by registered sale deed dated 24. 6. 1997. The mater has been investigated by the police and after investigation the police came to the conclusion that no offence of forging any document is made out, however, offence of cheating punishable under Section 420 IPC is made out against Mohd. Asif and Mohd. Arif who alleged to have sold the plots to the petitioner and thereafter through their power of attorney Vinod Kashyap sold the very plots to the complainants on 24. 6. 97. On careful perusal of the Police Investigation Diary, it prima facie appears that the plot No. 7 bearing Khasra No. 130 in Village Mogada, was originally owned by present petitioner Dilip Kothari who sold it to one Goverdhan Soni on 24. 1. 94 by registered sale deed. Goverdhan Soni subsequently sold the plot to Mohd. Asif and Mohd. Arif on 21. 9. 94 almost after nine months from the purchase. After having purchased the said plot from Goverdhan Soni, purchaser Mohd. Asif and Mohd. Arif entered into an agreement to sale dated 6. 7. 95 and by an agreement to sell, sold the said plot to one Vikram Jeet Singh. On the very day, a power of attorney was also executed by Mohd. Asif and Mohd. Arif with regard to the very plot in favour of Vijay Kashyap who is said to be man of Vikram Jeet Singh. Without revoking the agreement, Mohd. Asif and Mohd. Arif sold the said plot to the present petitioner by a registered sale deed dated 4. 9. 96 and by virtue of sale deed dated 4. 9. 96, petitioner Dilip Kothari claims to be the owner of the plot in question. It appears that petitioner Dilip Kothari filed a suit in the Civil Court against the complainants restraining them to interfere in his peaceful possession over the plot in question and an interim order has been passed by the Civil Court in respect of land in question for maintaining status-quo. It is contended by learned counsel for the petitioner that on the date of sell of said plots in favour of complainants by power of attorney holder of Mohd. Asif and Mohd. Arif namely Vijay Kumar Kashypa, the petitioner was nowhere in the picture and therefore, it cannot be said that the petitioner induced the complainants with the fraudulent and dishonest intention to purchase the said plot from the power of attorney holder of Mohd. Asif and Mohd. Arif. Learned counsel for the petitioner has relied on decisions of Hon'ble Supreme Court in S. W. Palanitkar vs. State of Bihar (2002) 1 SCC 241, in Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others (1998) 5 SCC 749 and a recent decision of Hon'ble Supreme Court in M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and Ors. AIR 2006 SC 2780. In M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and Ors. (supra) Hon'ble Supreme Court held that a growing tendency in business circles to convert purely civil disputes into criminal cases is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
(3.) IN S. W. Palanitkar vs. State of Bihar (supra), the Apex Court held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. In G. V. Rao vs. L. H. V. (2000) 3 SCC 693 Hon'ble Supreme Court held that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; the second part need not necessarily relate to property. In the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. In Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and others (1998) 5 SCC 749, Hon'ble Supreme Court held that no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. ;