Madhya Pradesh High Court
Rajkumar Vasudev Prasad Sharma vs The State Of Madhya Pradesh on 5 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:22248
1 MCRC-5872-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 5 th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 5872 of 2024
RAJKUMAR VASUDEV PRASAD SHARMA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yogesh Chaturvedi- Advocate for applicants.
Dr. Anjali Gyanani- Public Prosecutor for respondent No.1/State.
Shri Atul Gupta- Advocate for respondent No.2.
ORDER
This application, under Section 482 of Cr.P.C., has been filed for
quashment of FIR in Crime No.22/2024 registered at Police Station Thatipur,
District Gwalior (M.P.) for offence punishable under Sections 420, 406, 34
of IPC.
2. Prosecution story, in short, is that complainant lodged an FIR
alleging that he has retired from the post of Dy. Superintendent of Police.
Applicant No.1 was already known to him. They used to talk to each other
and applicant No.1 used to visit the house of complainant occasionally.
Applicant No.1 had projected himself to be a builder and a property dealer
and had also projected that he was a very rich person and was also instigating
or persuading him to invest in the property. However, he was avoiding the
same. In the year 2017, applicant No.1 met with him on multiple occasions
and informed that he knows one builder Dharmeshbhai Kantibhai Patel and
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he is constructing a big multi-storied building in partnership with him.
Applicant No.1 also informed that only four additional flats are left and
offered that he wants to sell two flats to complainant. When
complainant informed that neither he has any business in Ahmedabad nor he
is in need of flats as he does not wish to stay there, then applicant No.1
informed that he is in need of Rs.40 lacs and he may give him on loan and
whatever written documents he wants to execute, the same can be executed.
When complainant informed that he is not in possession of money then
applicant No.1 replied that since complainant is a retired person therefore he
must have received funds. Thereafter, applicant No.1 insisted that he would
return twice of the principal amount within a period of two years and by way
of security he can keep two flats with him and he would bring his partner
Dharmeshbhai Kantibhai Patel to Gwalior.
In the month of September, 2017, applicant No.1 came to his house
along with one person who introduced himself as Dharmeshbhai Kantibhai
Patel as a big builder of Ahmedabad and informed that they are constructing
a big multi of 200 flats for which he is in need of money. Dharmeshbhai
Kantibhai Patel also persuaded complainant that on his guarantee he may
give Rs.Forty Lacs and after completion of building they would return twice
of the money. When complainant informed that he is not in possession of
that much of money then they requested that whatever is possible for him, he
may give the same and twice of the principal amount will be returned. When
complainant again expressed his inability, then they persuaded that they are
giving two flats to complainant which are at least of worth Rs.One Crore and
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started pressurizing him to give money. Ultimately, they got a document
executed from complainant which was in Gujrati language. Although the
complainant could not understand the contents of the document but relying
upon applicants he gave Cheque No.996761 of Rs.Two lacs and Cheque
No.996762 of Rs.Three Lacs. Thereafter, for about two years,
complainant continued to request for return of the amount. When
complainant enquired from applicant No.1 as to whether the construction of
the building is complete or not then applicant No.1 all the time started
avoiding the same. In the year 2020, he enquired from Nathuram Sharma and
his brother about whereabouts of applicant No.1 then Pavan Dixit (nephew
of applicant No.1) informed that applicant No.1 is not the partner of any
builder. Although Dharmeshbhai Kantibhai Patel is a builder, but he is a
failure and is running in losses. It was also informed that applicants are
constructing a multi at a distance about 40-50 kms away from Ahmedabad.
When he enquired from applicant No.1 that no building is under construction
in Ahmedabad but it is being constructed in Mahemdavad then applicant
No.1 responded that complainant should not have any concern about the site
and very soon he would return the twice of the principal amount. Thus, it was
alleged that from 2017-2020, the amount has not been returned. When he
threatened applicants that he would lodge an FIR then an amount of Rs.One
Lac was deposited by applicant No.1 in his bank account and the remaining
amount has not been deposited.
3. Challenging the FIR, it is submitted by counsel for applicants
that respondent No.2 himself had entered into an agreement to sell in respect
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of Flat No.501 situated on 5th floor of flats constructed in the name of
“Viththal Vinayak” and Flat No.601 situated on the 6th floor of Block E. It is
a pure case of civil dispute. Even applicant No.2 Dharmeshbhai Kantibhai
Patel has lodged an FIR against respondent No.2/complainant in Police
Station Chandkheda, District Ahmedabad for offence under Sections 211,
506(2), 294(b) IPC on the ground that although complainant had booked the
flat but now he is not ready to execute the sale-deed, as a result even the flat
has been blocked due to which he cannot sell the said property to others. It is
further submitted that applicants have filed civil suit against complainant.
4. Per contra, application is vehemently opposed by counsel for State
as well as counsel for respondent No.2. It is submitted by State Counsel that
on account of the interim order passed by this Court Police is not in a
position to take any action in the FIR. Counsel for respondent No.2 has
submitted that in fact he was cheated by applicants.
5. Heard learned counsel for the parties.
6. Allegations made in FIR have already been reproduced in the
previous paragraph. It appears that an agreement to sell was executed by
complainant and now there is a dispute between the parties. According to
applicants, complainant is not executing the sale-deed as a result their flats
have got blocked and now they are not in a position to sell the same whereas
it appears that complainant wants his money back.
7. Be that whatever it may be.
8. The question is as to whether offence under Section 420, 406 and 34
IPC has been made out or not?
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9. In order to make out an offence under Section 420 IPC there has to
be dishonest intention from the very inception of the case. Complainant has
executed an agreement and now he wants to disown the same by alleging
that since it was in Gujarati language, therefore, he could not understand the
same and had signed the same in good faith. Section 52 of IPC defines
“Good Faith” which reads as under:
52. “Good faith”.–
Nothing is said to be done or believed in “good faith”
which is done or believed without due care and
attention.
Thus, in order to claim good faith, a person is under obligation to
plead and prove that the act was performed by him after exercising due care
and attention. If document was in Gujarati language and complainant was not
aware of Gujarati language then he should not have signed the same without
understanding the said agreement. Once complainant himself has signed the
agreement then he cannot claim that it was signed without understanding the
same. Even otherwise, Section 92 of Evidence Act prohibits ocular evidence
contrary to contents of document.
10. The Supreme Court in the case of Vijay Kumar Ghai & Others
Vs. The State of West Bengal & Others reported in 2022 LiveLaw (SC) 305
has held as under:-
7. Predominantly, the Indian Judiciary has time and
again reiterated that forum shopping take several hues
and shades but the concept of ‘forum shopping’ has not
been rendered an exclusive definition in any Indian
statute. Forum shopping as per Merriam Webster
dictionary is:-
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“The practice of choosing the court in which to
bring an action from among those courts that could
properly exercise jurisdiction based on
determination of which court is likely to provide
the most favourable outcome”
8. The Indian judiciary’s observation and obiter dicta
has aided in streamlining the concept of forum shopping
in the Indian legal system. This Court has condemned
the practice of forum shopping by litigants and termed it
as an abuse of law and also deciphered different
categories of forum shopping.
9. A two-Judge bench of this Court in Union of India
& Ors. Vs. Cipla Ltd. & Anr. (2017) 5 SCC 262 has
laid down factors which lead to the practice of forum
shopping or choice of forum by the litigants which are
as follows:-
“148. A classic example of forum shopping is
when litigant approaches one Court for relief but
does not get the desired relief and then approaches
another Court for the same relief. This occurred in
Rajiv Bhatia Vs. Govt. of NCT of Delhi and
Others, (1999) 8 SCC 525. The respondent-mother
of a young child had filed a petition for a writ of
habeas corpus in the Rajasthan High Court and
apparently did not get the required relief from that
Court. She then filed a petition in the Delhi High
Court also for a writ of habeas corpus and obtained
the necessary relief. Notwithstanding this, this
Court did not interfere with the order passed by the
Delhi High Court for the reason 8 that this Court
ascertained the views of the child and found that
she did not want to even talk to her adoptive
parents and therefore the custody of the child
granted by the Delhi High Court to the
respondentmother was not interfered with. The
decision of this Court is on its own facts, even
though it is a classic case of forum shopping.
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149. In Arathi Bandi v. Bandi Jagadrakshaka Rao
& Ors. (2013) 15 SCC 790 this Court noted that
jurisdiction in a Court is not attracted by the
operation or creation of fortuitous circumstances.
In that case, circumstances were created by one of
the parties to the dispute to confer jurisdiction on a
particular High Court. This was frowned upon by
this Court by observing that to allow the
assumption of jurisdiction in created
circumstances would only result in encouraging
forum shopping.
150. Another case of creating circumstances for
the purposes of forum shopping was World Tanker
Carrier Corporation v. SNP Shipping Services Pvt.
Ltd. and others, (1998) 5 SCC 310 wherein it was
observed that the respondent/plaintiff had made a
deliberate attempt to bring the cause of action
namely a collision between two vessels on the
high seas within the jurisdiction of the Bombay
High Court. Bringing one of the vessels to
Bombay in order to confer jurisdiction on the
Bombay High Court had the character of forum
shopping rather than anything else.
151. Another form of forum shopping is taking
advantage of a view held by a particular High
Court in contrast to a different view held by
another High Court. In Ambica Industries v.
Commissioner of Central Excise (2007) 6 SCC
769 the assesse was from Lucknow. It challenged
an order passed by the Customs, Excise and
Service Tax Appellate Tribunal (the CESTAT)
located in Delhi before the Delhi High Court. The
CESTAT had jurisdiction over the States of Uttar
Pradesh, NCT of Delhi and Maharashtra. The
Delhi High Court did not entertain the proceedings
initiated by the assessee for want of territorial
jurisdiction. Dismissing the assessee’s appeal this
Court gave the example of an assessee affected by
an assessment order in Bombay invoking the
jurisdiction of the Delhi High Court to take
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advantage of the law laid down by the Delhi High
Court or an assessee affected by an order of
assessment made at Bombay invoking the
jurisdiction of the Allahabad High Court to take
advantage of the law laid down by it and
consequently evade the law laid down by the
Bombay High Court. It was said that this could not
be allowed and circumstances such as this would
lead to some sort of judicial anarchy.
155. The decisions referred to clearly lay down the
principle that the court is required to adopt a
functional test vis-à-vis the litigation and the
litigant. What has to be seen is whether there is
any functional similarity in the proceedings
between one court and another or whether there is
some sort of subterfuge on the part of a litigant. It
is this functional test that will determine whether a
litigant is indulging in forum shopping or not.”
10. Forum shopping has been termed as disreputable
practice by the courts and has no sanction and
paramountcy in law. In spite of this Court condemning
the practice of forum shopping, Respondent No. 2 filed
two complaints i.e., a complaint u/s 156(3) Cr.P.C
before the Tis Hazari Court, New Delhi on 06.06.2012
and a complaint which was eventually registered as FIR
No. 168 u/s 406, 420, 120B IPC before PS Bowbazar,
Calcutta on 28.03.2013. ie., one in Delhi and one
complaint in Kolkata. The Complaint filed in Kolkata
was a reproduction of the complaint filed in Delhi
except with the change of place occurrence in order to
create a jurisdiction.
11. A two-Judge bench of this Court in Krishna Lal
Chawla & Ors. Vs. State of U.P. & Anr.(2021) 5 SCC
435 observed that multiple complaints by the same
party against the same accused in respect of the same
incident is impermissible. It held that Permitting
multiple complaints by the same party in respect of the
same incident, whether it involves a cognizable or
private complaint offence, will lead to the accused
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being entangled in numerous criminal proceedings. As
such he would be forced to keep surrendering his liberty
and precious time before the police and the courts, as
and when required in each case.
12. The legality of the second FIR was extensively
discussed by this Court in T.T. Antony Vs. State of
Kerala & Ors. (2001) 6 SCC 181. It was held that there
can be no second FIR where the information concerns
the same cognisable offence alleged in the first FIR or
the same occurrence or incident which gives rise to one
or more cognizable offences. It was further held that
once an FIR postulated by the provisions of Section 154
of Cr.P.C has been recorded, any information received
after the commencement of investigation cannot form
the basis of a second FIR as doing so would fail to
comport with the scheme of the Cr.P.C. The Court
further held that barring situations in which a
countercase is filed, a fresh investigation or a second
FIR on the basis of the same or connected cognizable
offence would constitute an “abuse of the statutory
power of investigation” and may be a fit case for the
exercise of power either under Section 482 of Cr.P.C or
Articles 226/227 of the Constitution of India
13. A two-Judge bench of this Court in K. Jayaram
and Ors. Vs. Bangalore Development Authority & Ors.
2021 SCC OnLine SC 1194 observed:
“16. It is necessary for us to state here that in order
to check multiplicity of proceedings pertaining to
the same subject-matter and more importantly to
stop the menace of soliciting inconsistent orders
through different judicial forums by suppressing
material facts either by remaining silent or by
making misleading statements in the pleadings in
order to escape the liability of making a false
statement, we are of the view that the parties have
to disclose the details of all legal proceedings and
litigations either past or present concerning any
part of the subject-matter of dispute which is
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parties to the dispute, no legal proceedings or 10
court litigations was or is pending, they have to
mandatorily state so in their pleadings in order to
resolve the dispute between the parties in
accordance with law.”
14. The genesis of the present appeal originates from
the impugned order pronounced by the High Court
whereby the High Court dismissed the application filed
under Section 482 as well as 401 Cr.P.C. Taking that
into concern, it is necessary to advert to the principles
settled by judicial pronouncements laying down the
circumstances under which High Court can exercise its
inherent powers under Section 482 Cr.P.C.
15. This Court in the widely celebrated judgment of
State of Haryana & Ors. Vs. Bhajan Lal & Ors. 1992
Supp (1) SCC 335considered in detail the scope of the
High Court powers under Section 482 Cr.P.C. and/or
Article 226 of the Constitution of India to quash the
FIR and referred to several judicial precedents and held
that the High Court should not embark upon an inquiry
into the merits and demerits of the allegations and quash
the proceedings without allowing the investigating
agency to complete its task. At the same time, this
Court identified the following cases in which
FIR/complaint can be quashed:
“102. (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 FIR 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.
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(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.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the Act
concerned (under which a criminal proceeding is
instituted) to the institution and continuance of the
21 proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
16. This Court in R.P. Kapur Vs. State of Punjab,
(1960) 3 SCR 388 summarized categories of cases
where inherent power can and should be exercised to
quash the proceedings:-
(i) Where it manifestly appears that there is a legal
bar against the institution or continuance e.g. wantSignature Not Verified
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of sanction;
(ii) Where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirety do not constitute the
offence alleged;
(iii) Where the allegations constitute an offence,
but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to
prove the charge.
17. This Court in Inder Mohan Goswami & Anr. Vs.
State of Uttaranchal & Ors. (2007) 12 SCC 1 observed:-
“27. The powers possessed by the High Court
under Section 482 of the Code are very wide and
the very plenitude of the power requires great
caution in its exercise. The court must be careful
to see that its decision in exercise of this power is
based on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. The High Court should normally
refrain from giving a prima facie decision in a case
where all the facts are incomplete and hazy; more
so, when the evidence has not been collected and
produced before the court and the issues involved,
whether factual or legal, are of such magnitude
that they cannot be seen in their true perspective
without sufficient material. Of course, no hard and
fast rule can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceedings at any stage”
18. In Indian Oil Corpn. v NEPC India Ltd. & Ors.,
(2006) 6 SCC 736 a two-judge Bench of this Court
reviewed the precedents on the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure
1973 and formulated guiding principles in the following
terms:
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“12. … (i) A complaint can be quashed where the
allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined
as a whole, but without examining the merits of
the allegations. Neither a detailed inquiry nor a
meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint, is warranted while
examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or
to cause harm, or where the allegations are absurd
and inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of
the complaint is warranted only where the
complaint is so bereft of even the basic facts
which are absolutely necessary for making out the
offence.
(v) ..”
19. A two-Judge Bench of this Court in State of
Madhya Pradesh Vs. Awadh Kishore Gupta & Ors.
(2004) 1 SCC 691 made the following observation :-
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“11. The powers possessed by the High Court
under Section 482 of the Code are very wide and
the very plenitude of the power requires great
caution in its exercise. Court must be careful to
see that its decision in exercise of this power is
based on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution. High Court being the highest Court of
a State should normally refrain from giving a
prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced
before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient
material. Of course, no hard and fast rule can be
laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. In
proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called
for only in a case where the complaint does not
disclose any offence or is frivolous, vexatious or
oppressive. If the allegations set out in the
complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is
open to the High Court to quash the same in
exercise of the inherent powers under Section 482
of the Code.”
20. This Court in G. Sagar Suri & Anr. Vs. State of UP
& Ors. (2000) 2 SCC 636 observed that it is the duty
and obligation of the criminal court to exercise a great
deal of caution in issuing the process, particularly when
matters are essentially of civil nature.
21. This Court has time and again cautioned about
converting purely civil disputes into criminal cases.
This Court in Indian Oil Corporation (Supra) noticed
the 13 prevalent impression that civil law remedies are
time consuming and do not adequately protect the
interests of lenders/creditors. The Court further
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observed that:-
“13. …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.”
34. There can be no doubt that a mere breach of
contract is not in itself a criminal offence and gives rise
to the civil liability of damages. However, as held by
this court in Hridaya Ranjan Prasad Verma & Ors. Vs.
State of Bihar & Anr. (2000) 4 SCC 168, the distinction
between mere breach of contract and cheating, which is
criminal offence, is a fine one. While breach of contract
cannot give rise to criminal prosecution for cheating,
fraudulent or dishonest intention is the basis of the
offence of cheating. In the case at hand, complaint filed
by the Respondent No. 2 does not disclose dishonest or
fraudulent intention of the appellants.
36. Having gone through the complaint/FIR and even
the chargesheet, it cannot be said that the averments in
the FIR and the allegations in the complaint against the
appellant constitute an offence under Section 405 &
420 IPC, 1860. Even in a case where allegations are
made in regard to failure on the part of the accused to
keep his 17 promise, in the absence of a culpable
intention at the time of making promise being absent, no
offence under Section 420 IPC can be said to have been
made out. In the instant case, there is no material to
indicate that Appellants had any malafide intention
against the Respondent which is clearly deductible from
the MOU dated 20.08.2009 arrived between the
parties.”
11. The Supreme Court in the case of Radheshyam and others Vs.
State of Rajasthan and another decided on 22.07.2024 passed in Criminal
Appeal No.3020/2024 has held that breach of contract does not call for any
criminal action. A civil wrong cannot be given criminal colour merely to
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coerce the applicant into registering the sale. The judicial process cannot be
used as a tool to enforce specific performance of agreement.
12. Considering the totality of facts and circumstances of the case, this
Court is of the considered opinion that allegations made in FIR are
predominantly of civil in nature and complainant has tried to give it the
colour of criminal case which should always be discouraged. Accordingly, it
is a fit case for quashment of FIR in Crime No.22/2024 registered at Police
Station Thatipur, District Gwalior (M.P.) for offence punishable under
Sections 420, 406, 34 of IPC and accordingly it is hereby quashed. However,
respondent No.2/complainant shall be free to initiate civil proceedings for
redressal of his grievances.
13. With aforesaid observation, this application is allowed.
(G. S. AHLUWALIA)
JUDGE
pd
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