Vishal Malhotra Vs State of Chhattisgarh

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2025:CGHC:25313-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 340 of 2023

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1 - Vishal Malhotra S/o Chandrashekhar Malhotra Aged About 32 Years R/o 159 B, Maitri Vihar Supela, Police Station Supela, District : Durg, Chhattisgarh 2 - Nagendra Somankar S/o I. P. Somankar Aged About 33 Years R/o E-3 Barsana House, Nehru Nagar, East, Bhilai, Police Station Supela, District : Durg, Chhattisgarh

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3 - Raju Ghongde S/o Late Ramnath Ghongde Aged About 54 Years R/o Thanegaon Tehsil Laji, District : Balaghat, Madhya Pradesh 4 - Sameer Latare S/o Shri Shashi Kumar Latare Aged About 54 Years R/o Thanegaon, Tehsil Laji, District : Balaghat, Madhya Pradesh 5 - Sudhir Kumar Latare S/o Shri Shashi Kumar Latare Aged About 34 Years R/o Near Tekri School, Tehsil Laji, District : Balaghat, Madhya Pradesh.

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--- Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through Station House Officer Police Station Durg Kotwali, District : Durg, Chhattisgarh

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2 - Anand Bafna S/o Late Kasturchand Bafna Aged About 47 Years R/o M-28-

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29, Padmanabhpur, District : Durg, Chhattisgarh

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3 - Ashish Paliwal S/o Tikamchand Paliwal Aged About 47 Years R/o Mahesh Colony Pulgaon, District : Durg, Chhattisgarh

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--- Respondent(s)

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For Petitioner(s) : Ms. Shivali Dubey, Advocate. For Respondent No. 1 : Mr. S.S.Baghel, Deputy Government Advocate. For Respondent No. 2 : Mr. Manoj Paranjpe, Advocate.

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Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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18/06/2025

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1 Heard Ms. Shivali Dubey, learned counsel for the petitioner, Mr. S.S.Baghel, learned Deputy Government Advocate for the State/respondent No. 1 as well as Mr.Manoj Paranjpe, learned counsel for the respondent No. 2.

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2 By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.), the petitioner seeks quashing of FIR bearing Crime No. 1149/2022 registered against the petitioner under Sections 420 read with Section 34 of the Indian Penal Code (for short, the IPC), at Police Station, Kotwali,Durg, and also the consequential criminal proceedings.

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3 The facts, in brief, as projected by the petitioner are that the petitioner No. 1 purchased a land bearing Patwari Halka No. 17/8, bearing Kh. No. 294/156 Rakba 0.215 Hectare for a consideration of Rs.66,60,000/from Shri Sai Builder which is a registered firm having two equal sharing partners who are respondents No. 2 and 3. It has been alleged by respondent No. 2 that on dated 25.03.2021 the petitioner No. 1 to 5 purchased another land from the same firm having same equal sharing partners, which is situated at PH No. 17/8, bearing Kh. No. 294/151, admeasuring 0.860 hectare through registered sale deed for a valuable

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consideration of Rs. 3,65,45,500/- against which the petitioners have issued several cheques as a guarantee against the purchase of both the land, that if the full payment will not be made then in that situation the cheques will be used to recover the rest unpaid amount with an oral agreement accepted by both the respondent no. 2 & 3 that they petitioners have to make full payment within 2 years of the agreement. However, the respondent No. 2 endorsed the cheques in the bank without prior intimation to the petitioners and due to the reason, the petitioners failed to make payments and the cheques got dishonored. Subsequently the respondent No. 2/ complainant filed case under section 138 of the Negotiable Instruments Act against the petitioners even without informing his partner in firm and the case was registered bearing case No. 1668/2022 in the Court of learned Judicial Magistrate First Class, Durg.

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4 Pursuant to the aforesaid written complaint, FIR No. 1149/2022 dated 23.10.2022 was registered by the Police Station Kotwali under Sections 420 read with Section 34 of the IPC. The learned Judicial Magistrate First Class, Durg also registered case against the petitioners under section 138 of the Negotiable Instruments Act for the same transaction.

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5 Ms. Shivali Dubey, learned counsel for the petitioiners submit that the petitioners are the bona fide purchaser of the land in question and have purchased the land through a valid registered sale deed. Further, the petitioner would submit that the consideration amount in question was to be paid within stipulated time period which is still in existence. The complainant/ respondent no 2 has misused the process of law and the present criminal case is abuse of process of law. The basic ingredients of Section 420 and 34 of the IPC are not made out in this case. On a bare reading of the FIR, even if the allegations are taken on their face

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value, no case is made out against the petitioners herein for the offence under Sections 420 and 34 of the IPC and as such, this Court, in exercise of its power under Section 482 of the Cr.P.C., should quash the FIR in question. The ingredients to constitute an offence under Section 420 are firstly, a person must commit the offence of cheating under Section 415; and secondly, 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. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. The the complainant/ respondent No. 2 has already availed the remedy under section 138 of Negotiable Instruments Act against the cheque issued by the petitioners. The petitioner No. 1 and 5 have already paid the considerable amount as promised to the respondents and rest of the petitioners have already fully paid the amount to the respondent No. 2, 3 & 4 against the said property. The petitioners have made all the payments through their bank accounts, it could also be tallied from the bank statement of the firm namely Shri Sai Builders. The petitioners in a most bona fide manner submits here that the petitioners have further sold the property to the third party as the petitioners purchased the property from the respondent no. 2 and 3 through registered sale deed and petitioners were the true owners of the property during the further sale made by them. It is relevant to mention here that the petitioners have informed the respondent no. 2 and 3 about the further sale made by the petitioners and it was well within the knowledge of the respondent no. 2 and 3.

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6 It is further submitted by Ms. Dubey that the dispute between the petitioner and the private respondents is civil /contractual dispute which

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has been tried to be given a colour of criminal offence. As such, he prays that the FIR lodged against the petitioners as well as the consequential proceedings may be quashed.

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7 Mr. S.S.Baghel, learned Deputy Government Advocate appearing for the State/respondent No. 1 submits that when the complaint was lodged by the respondent No. 2 and commission of a cognizable offence was revealed, the State was bound to register the FIR and investigate the matter.

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8 Mr. Paranjpe, learned counsel for the respondent No. 2, relying on the averments made in the return, submits that the FIR was lodged on 23.10.2022 against 10 purchasers in whose favor the registered sale deeds were executed by Sai Builders, a partnership firm. There are two partners in the said firm namely respondent No. 2-Anand Bafna (complainant herein) and respondent No. 3-Ashish Paliwal. The agreement was executed between both the partners for sale of the plots mentioned in para No.2 of the said agreement. It was decided the said property would be sold for a consideration of Rs. 7 crores and out of Rs. 7 crores, 2.30 crore will be withdrawn by Ashish Paliwal and 4.70 Crores will be withdrawn by Anand Bafna, the complainant. Total 6 sale deeds were executed as detailed in paragraph 3 of the return. Admittedly, the sale deeds were executed and the full amount of consideration was not paid to the firm. According to the agreement between two partners, Ashish Paliwal had already withdrawn his entire amount of share i.e. Rs. 2.30 Crores, whereas the respondent No. 2-Anand Bafna the another partner could not get the full amount i.e. 4.70 Crores and has only received Rs. 2,11,13,000/- and Rs. 2,58,87,000/-is still pending and the cheques of the remaining amount could not be encashed due to either closure of account or insufficiency of funds. Admittedly, for dishonor of

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above cheques, the proceedings under the Negotiable Instrument Act have been initiated against the accused persons and the said proceedings are pending consideration before the learned Judicial Magistrate First Class, Durg.

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9 Mr. Paranjpe further submits that the FIR was lodged inter-alia on the allegations that the purchasers with an intention to deceive the complainant/firm and knowing fully well that there are no sufficient funds in their accounts, issued the cheques. Even one of the accused has issued the cheque of closed account which itself shows the intention on the part of the purchasers. The purchasers got executed the registered sale deeds and subsequently transferred the said property to third parties and obtained the full amount of consideration. The intention of the purchasers was to deceive and cheat the firm and the partners of the firm. If the intention of the purchasers were bonafide they would have atleast paid the balance amount, after getting the full amount of consideration from the third parties. The contention of the purchasers is that the entire amount of consideration has been paid, but no details or any documents have been filed to show the payment of the foll amount of consideration. When the entire allegation as alleged in the FIR is accepted on its face value, the offence of cheating is clearly made out. In support of his contentions, reliance has been placed by Mr. Paranjpe on the decisions of the Supreme Court in Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Another {(2012) 7 SCC 621}, J. Vedhasingh v. R. M. Govindan, {2022 AIR SC 3772}.

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10 On the last date of hearing i.e. on 13.11.2024, the petitioner was granted two weeks’ time to file rejoinder, however, the rejoinder has not been filed till date. When a query was made to the learned counsel for the petitioner as to whether she wishes to file any rejoinder to the return filed

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by the respondent No. 2, Ms. Dubey submits that she does not want to file any rejoinder as full payment of the consideration amount has already been made to the respondent No. 2/complainant, which has been disputed by the learned counsel for the respondent No. 2 and as such, this Court proceeds to hear the matter on merits.

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11 Admittedly, there was a transaction of purchase and sale between the petitioners and the private respondents. The cheques issued by the petitioners got dishonoured and as such, the private respondent No. 2 has also taken recourse to a complaint filed before the Magistrate under Section 138 of the Negotiable Instruments Act. In a similar set of facts, the Supreme Court, in G. Sagar Suri & Another v. State of U.P. & Others , {(2000) 2 SCC 636}, had observed that there was no occasion for the complainant to prosecute the appellants under Section 406/420 of the IPC and in doing so it was clearly an abuse of the process of law when a criminal complaint under Section 138 of the Negotiable Instruments Act was already pending against the appellants therein, and as such, the Apex Court allowed the appeal and the criminal case pending against the appellant therein was quashed.

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12 In the present case also, the cheques were issued in the course of commercial transaction relating to sale and purchase of land and when the cheques got dishonoured, the respondent No. 2 has taken recourse to Section 138 of the Negotiable Instruments Act before the learned Magistrate and on the same time, has filed the FIR in question which is not tenable. As such, we deem it appropriate to quash the FIR lodged against the petitioners in exercise of powers under Section 482 of the Cr.P.C.

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13 Accordingly, the FIR bearing Crime No. 1148/2022 registered against the petitioners for the offences under Sections 420 read with Section 34 of the IPC at Police Station, Kotwali, District Durg, and the consequential criminal proceedings, if any, stands quashed.

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14 Resultantly, this petition stands allowed .

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Sd/Sd/(Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.06.19 18:53:22 +0530

Vishal Malhotra v. State of Chhattisgarh

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Vishal Malhotra v. State of Chhattisgarh

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