- (1.) Petitioners accused Panna and Vishnu have preferred this misc. petition under Section 482 Cr.P.C. for quashing the impugned FIR No. 11/2017 registered at Police Station Kekri, District Ajmer for offence under Sections 420, 467, 468, 471 and 120-B IPC.
(2.) The brief facts of the case are that respondent No. 2 complainant submitted a written report stating therein that:- ...[Varnacular Text Omitted]... On the aforesaid report FIR No. 11/2017 under Sections 420, 467, 468, 471 and 120-B IPC was registered at Police Station Kekri, District Ajmer and investigation commenced. Investigation is in progress. Learned counsel for petitioners Shri Jai Prakash Gupta submits that from the bare perusal of impugned FIR, no offence is made out against the present petitioners. He submits that there is lake of ingredients of Section 415 IPC which are required to constitute offence for cheating punishable under Section 420 IPC. He submits that petitioner submitted anticipatory bail application which was rejected vide order dated 17.04.2017 observing that no offence is made out under Sections 467, 468 and 471 IPC. He submits that petitioner No. 2 Vishnu is bonafide purchaser. There is no allegation that he deceited to respondent No. 2 complainant by any way or was in picture during the course of receiving sale amount by respondent No. 2 complainant. He submits that if there is any breach regarding injunction order, then same is punishable under order 39 Rule 2(A) of CPC. Parallel criminal proceeding is not maintainable. He further submits that if during pendency of civil suit if suit property is being sold, then provisions enshrined under Section 52 of Transfer of Property Act is applicable and transfer is subject matter of the decision of the suit as such the offence of cheating is also not made out. He further submits that respondent No. 2 complainant alleges that Rs. 4 lakhs were paid to vendors on 5 th August, 2014 is false. No such payment was made. In view of it, the impugned FIR may be quashed. Learned counsel relied on Azizurrahman and Ors. Vs. State of U.P. Manu/UP/0569/1985 decided on 06.11.1985 by the Single Bench of Allahabad High Court and Shesha Singh Vs. B.C. Gupta and Ors. Reported in Manu/PH/0232/2007 decided on 07.05.2007 by the Single Bench of Punjab and Haryana High Court. IO Shri Hariram Kumawat, SHO, Police Station Kekri, District Ajmer is present in person who submitted factual report of the matter through PP. Shri Jitendra Shrimali which is taken on record. As per factual report offence under Section 420, 467, 468, 471 and 120-B IPC is made out against the present petitioners. Learned PP. Shri Jitendra Shrimali submits that in this matter admittedly agreement to sale of land was executed on 18.06.2014 by deceased Dhapu and petitioner No. 1 Panna of the land in question. The time period for payment was decided between the parties is 3 months. At the time of execution of agreement Rs. 1 lakh was received by the vendors. Thereafter on 5 th August, 2014 Rs. 4 lakhs were again received by the vendors. The entries regarding payment of Rs. 1 lakh on 8th June, 2014 and thereafter on 5th August, 2014 are there on the agreement duly thumb impression by the vendors and signature of witness Kamlesh Kasotiya, Advocat. He submits that the due period for payment and execution of sale deed was 3 months. When within three months vendors failed to execute the sale deed, then soon after passing three months on 20th September, 2014 respondent No. 2 complainant served notice through his counsel to petitioner No. 1 Panna who in reply denied for receiving the huge amount of Rs. 4 lakhs on 5 th August, 2014. When even after notice vendors failed to execute sale deed, then respondent No. 2 filed a suit for specific performance with injunction against petitioner wherein the Civil Court passed ad-interim stay order in favour of respondent No. 2 complainant and against petitioners. Even after aforesaid interim order petitioner No. 1 executed sale deed in favour of petitioner No. 2 before the Sub- Registrar which shows that petitioners were in criminal conspiracy from beginning to deceive respondent No. 2 complainant. He submits that anticipatory bail application of petitioner No. 1 has also been dismissed by the learned Additional Sessions Judge, Kekri, District Ajmer which also shows that there is prima facie case against the present petitioners, therefore, there is no ground for quashing the impugned FIR. Shri Praveen Jain learned counsel appearing on behalf of respondent No. 2 complainant supported the submissions made by the learned PP. Shri Jitendra Shrimali. I have considered the submissions made at Bar. In the matter of State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors. [1992 Suppl (1) SCC 335], Hon'ble Supreme Court framed 7 grounds for quashing the FIR as follows:- "105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. 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. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3.) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.;