Single judge allowed the petition under Section 482 Cr.P.C. and quashed the charge-sheet holding the dispute to be purely civil in nature involving possession and price escalation of a flat, thus not attracting penal liability against the applicant.
Quashment of charge-sheet No.08 of 2011 dated 29.11.2011 in Case Crime No.333 of 2008.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 14
Case :- APPLICATION U/S 482 No. - 7518 of 2012
Applicant :- Sandeep Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Syed Mohd. Fazal Counsel for Opposite Party :- Govt. Advocate,Nipun Singh
Hon'ble Abhai Kumar,J.
Heard Mr. Sayed Mohd. Fazal, learned counsel for the applicants, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.
This petition under Section 482 Cr.P.C. has been preferred with the prayer to quash the impugned charge-sheet no.08 of 2011 dated 29.11.2011 in Case Crime No.333 of 2008, under Sections 406, 409, 420, 467, 468, 471, 120B I.P.C. and Section 103 (1) (2) of U.P. Co-operative Act, 1965, Police Station Indirapuram, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-III, Meerut as Criminal Case No.1110/9 of 2011 (State vs. Sandeep Kumar).
Brief facts of the case are as follows:
An FIR was lodged by the opposite party no.2 claiming himself to be the member of Jeevan Beema Rastriya Sahkari Avas Samiti Limited (hereinafter referred to as "society") having his membership no.253. The opposite party no.2 booked a flat in the society and deposited the required money and he was duly allotted a Flat No.305-A, but the same was cancelled by the office bearers of the society by committing fraud, whereas it is submitted by learned counsel for the applicant that flat was cancelled as full payment is not being made by the opposite party no.2 in spite of demand by the society and subsequently it was sold to applicant. The opposite party no.2 ha already taken back his amount, which was deposited by him against the
allotment of said disputed flat. The opposite party no.2 approached the Arbitration Court at Lucknow and filed an Arbitration Case No.106 of 2007 against the society as well as applicant and Arbitration award has been made in favour of applicant on 11.6.2010 in Civil Case No.106 of 2007. The applicant purchased the flat legally from the society after paying full consideration. The applicant has no concern in the matter and dispute is between the opposite party no.2 and housing society i.e. Jeevan Beema Rastriya Sahkari Avas Samiti Limited.
It is next contended by learned counsel that dispute is purely civil in nature and does not attract any penal liability against the applicant. The opposite party no.2 has already availed his right by moving the petition and same has been decided upon merits in favour of applicant and accordingly the FIR that has been lodged and consequential proceeding against the applicant is misuse of process of law and against the natural justice.
In the case in hand, the dispute is related to the possession over the flat which is purely a dispute of civil nature but the same has been dragged in a criminal court. The dispute had arisen when the escalated price of the flat has been asked from the allottee in accordance with the recommendation of the Dahiya Committee and that too after the area of the flat was increased. Thereafter, notice was issued to the allottee to make payment of the enhanced amount, but the opposite party no.2 declined to make payment of escalated price. The efficacious remedy was sought under Section 70 of the Cooperative Societies Act before the Arbitrator and resultantly award was passed. In pursuance of the said award, payment has been received by the opposite party no.2 from the Society. The implication of applicant in the present matter would amount to abuse of process of law. There
is no evidence of wrongful loss to the opposite party no. 4 and wrongful gain to the applicant. Therefore, no offence is made out against the applicant."
The Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another [(2009) 8 SCC 751] has held that this court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.
The Hon'ble Apex Court in the case of Vimla (Dr.) Vs. Delhi Administration [AIR 1963 SC 1572] has explained the meaning of the expression "defraud" thus:
"14..... the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
It is clear that by alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that
fraudulent act is specified to be an offence under the Code or other law.
In view of the above discussion, the petition is allowed and the charge sheet No.08 of 2011 dated 29.11.2011 in Case Crime No.333 of 2008, under Sections 406, 409, 420, 467, 468, 471, 120B I.P.C. and Section 103 (1) (2) of U.P. Co-operative Act, 1965, Police Station Indirapuram, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-III, Meerut, is hereby quashed.
Order Date :- 9.4.2018 Ajeet
2 issues framed by the court
Whether a dispute regarding possession of a flat and payment of escalated price is purely civil or criminal in nature.
Whether the ingredients of offences under Sections 406, 409, 420, 467, 468, 471, 120B IPC and Section 103(1)(2) of U.P. Co-operative Act are made out against the applicant.
Colour shows how this judgement treated each authority
Mohammed Ibrahim and others Vs. State of Bihar and anotherReferred¶13
[(2009) 8 SCC 751] · Who else cites this
Vimla (Dr.) Vs. Delhi AdministrationReferred¶14
[AIR 1963 SC 1572] · Who else cites this
Sandeep Kumar
Abhai Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
