JUDGMENT

RAJNESH OSWAL, J. –

01. During pendency of the petition, petitioner No. 1 died and he was deleted from the array of respondents in terms of order dated 07.12.2021.

02. Instant petition has been filed by the petitioners under Section 561-A Cr.P.C (now section 482 Cr. P.C) for quashing the FIR No. 42/2015 dated 24.08.2015 registered with respondent No. 1 for commission of offences under Sections 420, 406, 452, 465, 467, 506 and 120-B RPC at the instance of respondent No. 2 on the following grounds:

(i) That by virtue of sale deed executed by the deceased-petitioner on 08.08.2012 in favour of respondent No. 2 and registered on 11.08.2012 before Sub-Registrar, Jammu, the respondent No. 2 purchased the land measuring 3 ¼ Marlas comprising survey No. 539 alongwith one room having tin sheet roof, situated at Ward No. 42 Rakh Bahu, Tehsil and District Jammu. Vide another sale deed executed on the same day by the petitioner in favour of respondent No. 2 and registered on 13.08.2012 before Sub-Registrar, Jammu, the respondent No. 2 purchased land measuring 5 ½ marlas comprising survey No. 542 alongwith two rooms having tin sheet roof, situated at Ward No. 42 Rakh Bahu, Tehsil and District Jammu, whereas the complaint of the respondent No.2 leading to registration of FIR speaks of double storied house, which the petitioner had constructed in the year 2002 and had been running paying guest accommodation for girls since 2005 and the recitals in both the sale deeds executed by petitioner and the deceased-petitioner, in respect of one room with tin roof and two rooms with tin roofs as the case may be, were not meant for the purpose of sale by the petitioners but were for the purpose of securing the loan amount, which the petitioner had raised from the respondent No. 2.

(ii) That the possession of the aforesaid house was never delivered to the respondent No. 2 and the aforesaid sale deeds were executed only for the purpose of securing the loan, which the petitioner had raised from the respondent No. 2, therefore, there was no question of cheating, criminal breach of trust, trespass, forgery and the FIR has been got registered by the respondent No. 2 to grab the aforesaid house of the petitioner and his father (now deceased).

(iii) That a civil dispute is pending before the civil court and the matter is yet to be decided by the civil court, therefore, the impugned FIR is nothing but an abuse of process of law.

03. Status report stands filed by the respondent No. 1, stating therein that a written complaint was filed by the respondent No. 2 before the court of Additional Munsiff, JMIC, Jammu against the petitioners and the Court in terms of Section 156(3) Cr.P.C directed the respondent No. 1 for registration of FIR. It has been stated that the complainant is an unfortunate widow of Dr. Buphinder Singh, who died on 26.02.2015. She had purchased a double storied house in Nanak Nagar, Jammu from the petitioners vide two different sale deeds registered before learned Sub-Registrar, Jammu. The petitioners, who are close relatives of the respondent No. 2 and as they had no other place to live in, approached her, they were permitted to live on the ground floor of the house on license basis. The second floor remained with her duly locked and a license deed was executed in that regard on 20.10.2012, which was subsequently extended on 21.12.2013. The petitioners, however, in furtherance of a criminal conspiracy forcibly and illegally trespassed and encroached upon the entire double storied house of the complainant by breaking the locks. The complainant/respondent No. 2 served a legal notice upon the petitioners to vacate the premises but the petitioners filed two civil suits challenging the execution of the sale deeds before the civil Court. After consideration of the matter, the Court vacated the stay order in both the suits. The petitioners thereafter filed an appeal but possession over the said property was still with the respondent No. 2. In the month of May 2015,when the respondent No. 2 entered her own house with the request to the accused persons to vacate the house, as she needed the accommodation after the death of her husband but petitioner(s) threatened, misbehaved and forcibly restrained her from entering into her house. Thereafter, the respondent No. 2 reported the matter to the Police Station, Gandhi Nagar, Jammu by way of a written application. On the basis of said complaint, the petitioner-Manjeet Singh was kept in Police Station for entire night but later on, he was released on furnishing bail bond. It has been further stated that the petitioner(s)was/were threatening the respondent No. 2 every day taking advantage of the fact that respondent No. 2 was a widow having two kids and they were hell bent to cause physical injury to the respondent No. 2. Placing these facts before the court, indulgence of the court was sought under Section 156(3) Cr. P.C. and 3rdAddl. Munsiff JMIC, Jammu referred the matter to the respondent No. 1 for registration of a criminal case against the accused persons. During the course of investigation, the statements of witnesses of sale deeds and licence deed were recorded, who corroborated the contents of FIR. The Investigating Officer, during the course of the investigation found that the petitioners were in possession of a residential house constructed over a piece of land measuring 3 ¼ Marlas and 5 ½ Marlas situated at 119/2 Nanak Nagar, Jammu falling under Khasra No. 539 and 542. On 08.08.2012, both the petitioners executed two different sale deeds in respect of the said property in favour of Kanwarbir Kour W/o Late Dr. Bupinder Singh and both the sale deeds were registered before the Court of Sub-Registrar, Jammu on 11.08.2012 and 13.08.2012 respectively. After registration of the sale deeds, the property was mutated in the name of Kanwarbir Kour vide mutation Nos. 666 and 667 dated 05.10.2012. Further, the licence deed dated 20.10.2012 reveals that the respondent No. 2 had granted licence to the petitioner in respect of ground floor of the said house comprising of two bed rooms with attached bathrooms, lobby, drawing room, kitchen, veranda and store for a period of one year on a monthly rent of Rs. 4,000/. The licence deed was renewed on 21.12.2013 on the same terms and conditions. During the course of the investigation, the Investigating officer found that the petitioners had executed the sale deeds in favour of the respondent No. 2 out of free will and obtained 57 lakhs rupees of the property mentioned in the sale deeds but were not willing to vacate the premises and as such, they had filed the civil suits before the court of law. After the execution of the sale deeds in favour of the respondent No. 2, petitioner-Manjit Singh was residing in the ground floor of the house on the basis of the licence deed but after the expiry of licence deeds, he not only refused to vacate the portion of the house wherein he was permitted to live, but also hatched a criminal conspiracy with his father (now dead) and pursuant to that he trespassed in the second story of the house by breaking open the locks and threatened the respondent No. 2 of dire consequences when they were asked to vacate the premises. It has also been stated that during the course of investigation of the case, the complainant was summoned time and again but she never bothered to attend the Crime Branch, Jammu. As reported by her mother, Ranjeet Kour, her daughter Kanwarbir Kour had been residing in Canada for the last two years. Efforts were also made to manage the presence of the accused persons and it was found that petitioner-Gajan Singh had expired and other accused Manjeet Singh had undergone liver transplant surgery and was on bed.

04. The respondent No. 2 has also filed the response, wherein it has been stated that this petition has been filed just to stall the investigation. It is further stated that the civil litigation is pending between the petitioners and respondent No. 2 but merely because the civil suit is pending, FIR can be quashed. The respondents No. 2 has reiterated the facts as stated by the respondent No. 1 in its status report and it has been stated that even after the expiry of the license deed executed on 21.12.2013, the petitioners did not vacate the premises, which compelled the respondent No. 2 to serve the legal notice for vacating the premises in question. The respondent No. 2 has placed on record the licence deed executed by petitioner in her favour. The petitioners approached the civil court and obtained the stay, which was subsequently vacated on 07.07.2015. Thereafter, the petitioners approached the appellate Court and said appeal was disposed of vide order dated 25.08.2015.

05. Mr. Vijay Gupta, learned counsel for the petitioners has submitted that the petitioners have filed two suits against the respondent No. 2, whereby they have challenged the sale deeds, which were meant only for the purpose of securing the loan amount and the respondent No. 2 has also filed the suit against the petitioners for vacation of the premises, which has been stayed by the court of learned 1st Addl. Munsiff/ Forest Magistrate, Jammu, under Section 10 CPC.

06. Mrs. Monika Kohli, learned Sr. AAG vehemently argued that the matter is under investigation and at this stage, the FIR cannot be quashed.

07. Mr. Basit Manzoor Keng, learned counsel for the respondent No. 2 has conceded that so far as offences under Sections 465 and 467 RPC are concerned, the same are not made out against the petitioners, however, he has vehemently argued that the other offences are clearly made out against the petitioners as per the allegations levelled against them.

08. Heard learned counsel for the parties and perused the record including the case diary.

09. The dispute between the contesting parties is in respect of the land measuring 3 ¼ Marlas comprising under survey No. 539 and land measuring 5 ½ marlas comprising under survey No. 542, situated at Ward No. 42 Rakh Bahu, Tehsil and District Jammu and the house constructed over the same. As per the petitioner, a double storied house existed, when he and his father executed the sale deeds in favour of the respondent No. 2 and the sale deeds were executed only for the purpose of securing loan, whereas the contention of the respondent No. 2 is that the petitioners have sold the land alongwith double storied house to the respondent No. 2 and after two months of the execution of the sale deeds, the petitioners were permitted to reside in the house vide licence agreement dated 20.10.2012 and subsequent license deed dated 21.12.2013. Both the sale deeds were executed on 08.08.2012 by the petitioners and in both the sale deeds reference to the land & one room having tin roof and land & two rooms having tin roofs, as the case may be, has been made, and there is no mention of the double storied house existing on the land in the sale deeds. However, in the license deed executed after two months on 20.12.2012 reference to the double storied house has been made.

10. The petitioners were served the legal notice and after service of the notice, they did not vacate the premises, rather they filed suits thereby challenging the sale deeds executed by them. The interim directions were issued by the learned Magistrate initially vide order dated 26.03.2015, which were subsequently vacated. The petitioner preferred two separate appeals, which were disposed of by learned 2nd Addl. District Judge, Jammu vide order dated 25.08.2015 with the consensus of the petitioner and respondent No.2, the respondent No. 2 was directed not to create 3rd party interest with regard to the subject matter of the suit property till the disposal of the suit before the learned trial court. Thereafter, in the month of December, 2015, the respondent No. 2 filed a suit for mandatory injunction directing the petitioner to vacate and handover the vacant possession of House No. 119 situated at Sector-2 Nanak Nagar, Jammu to her.

11. A perusal of the plaint reveals that it has been pleaded by the respondent No. 2 that the permission granted to the petitioner has expired with efflux of time and despite notice dated 06.02.2015, the petitioner has not surrendered the vacant possession of the property to the respondent No. 2. The said suit is still pending before the Court of learned Forest Magistrate, Jammu and vide order dated 03.06.2019, the proceedings in the suit filed by the respondent No. 2 have been stayed by the learned trial court under Section 10 of the Civil Procedure Code.

12. The FIR impugned has been registered for commission of offences under Sections 420, 406, 452, 465, 467, 506 and 120-B RPC. The learned counsel appearing for the respondent No. 2 has in fact conceded that there are no allegations of forgery qua the petitioner.

13. The issues which arise for the consideration by this court is whether offences under sections 420, 406, 452, 506 and 120-B RPC are made out against the petitioner and whether FIR has been lodged with ulterior motive to settle the civil dispute.

14. A perusal of the FIR impugned reveals that the complainant/respondent No. 2 had purchased the property vide two different sale deeds and on the request of the petitioner, she had permitted the petitioner to stay in the ground floor of the house only but the entire double storied has been illegally and forcibly occupied by the petitioner pursuant to well hatched conspiracy. In the suit preferred by the respondent No.2, which was filed after lodging of the impugned FIR, there is no whisper that the petitioner has forcibly occupied whole of the house.

15. First of all this court would examine as to whether the petitioner has committed any offence of cheating. The Hon'ble Apex Court in “R. K. Vijayasarathy v. Sudha Seetharam”, (2019) 16 SCC 739 has discussed in detail the essentials required to establish an offence of cheating and has held as under:

"15. Section 415 of the Penal Code reads thus:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver 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"."

16. The ingredients to constitute an offence of cheating are as follows:

16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:

16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

18. Section 420 of the Penal Code reads thus:

"420. Cheating and dishonestly inducing delivery of property.—

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

19. The ingredients to constitute an offence under Section 420 are as follows:

19.1. A person must commit the offence of cheating under Section 415; and 19.2. The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

20. Cheating is an essential ingredient for an act to constitute an offence under Section 420.”

16. The condition necessary for an act to constitute an offence of cheating under Section 415 of the Penal Code is that there was dishonest inducement of a person by the accused. The claim of the respondent No.2 is in respect of purchase of double storied house where as there is no reference of double storied house in sale deeds. The respondent No. 2 cannot be expected to have bought the house without seeing the property. From the allegations levelled in the complaint, it cannot be said that there was any act of deception on the part of the accused so as to induce the respondent No.2 to part away with the possession of the property, as such, the offence of cheating is not made out at all.

17. So far as offence of criminal breach of trust is concerned, the only allegation is that the petitioner did not vacate the premises despite expiry of the period of licence. The petitioner has challenged the title of the respondent No.2 by challenging the sale deeds qua the house. There is no criminality involved in the action of the petitioner by not vacating the house as the title of the respondent No.2 is subject matter of the two suits pending before the civil court. In Sarabjit Kaur v. State of Punjab, (2023) 5 SCC 360, the Hon’ble Supreme Court of India has held that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. Thus, even no offence of criminal breach of trust is made out against the petitioner.

18. In “Mahmood Ali & Ors. versus State Of U.P. & Ors.?, 2023 INSC 684, while examining the scope of power under section 482 Cr.P.C for the quashing of FIR or criminal proceedings, the Hon’ble Supreme Court of India has held as under:

“12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

(emphasis added)

19. In fact, from the perusal of FIR and the plaint filed by the respondent No. 2, this court finds that the whole grievance of the respondent No.2 against the petitioner is in respect of the occupation of the house by the petitioner No. 2 despite expiry of the license agreement but equally true is that there is dispute with regard to the sale of the house, as in the sale deeds, the reference has been made only to the rooms with tin sheet roofs and not double storied house. The respondent No.2 has already filed a suit for mandatory injunction against the petitioner for vacation of the house in question. No doubt the suit has been stayed by the court of 1st Addl. Munsiff Forest Magistrate, Jammu but it does not mean that respondent No.2 can continue to use the criminal proceedings for settling the civil dispute between her and the petitioner. In view of the controversy involved between the contesting parties, this court has no hesitation to observe and hold that the dispute between the contesting parties is predominantly civil in nature and the criminal proceedings have been used by the respondent No.2 to settle the civil dispute. The respondent No.2 cannot be permitted to continue with the criminal proceedings, once she has already availed the remedy of the civil suit for vacation of the house. The Hon’ble Supreme Court of India has deprecated the practice of using the criminal proceedings to settle the civil disputes time and again. Reliance is placed upon the decision of Apex Court in ‘Vijay Kumar Ghai v. State of W.B.’, (2022) 7 SCC 124, wherein the Hon’ble Apex Court has cautioned about using criminal proceedings for settling the civil disputes by observing as under:

25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further 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.”

20. Further, In ‘Usha Chakraborty &Anr. v. State of West Bengal &Anr’, 2023 SCC OnLine SC 90, it was again held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such proceeding can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure.

21. In view of the above, this Court is of the considered opinion that the FIR impugned is nothing but an abuse of process of law and accordingly, the petition is allowed and the impugned FIR No. 42/2015 dated 24.08.2015 registered with SSP, Crime Branch, Jammu for commission of offences under Sections 420, 406, 452, 465, 467, 506 and 120-B RPC is quashed. Any observation made by this Court shall have no bearing upon the suits pending between the contesting parties.

22. Case dairy, as produced, be returned to Mrs. Monika Kohli, learned Sr. AAG.

Petition allowed.

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