Mustt Tara Banu and Anr. Vs the State of Assam and Anr.

Heard Mr. D. Choudhury, learned Counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent and Mr. K. Sarma, learned Counsel for respondent No.2.

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2. By way of this application under Section 482, read with Section 401 of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C.”) the petitioner is seeking setting aside and quashing of the impugned order dated 28.01.2013 passed by the learned Judicial Magistrate, First Class, Bongaigaon in G.R. Case No. 597/2012, whereby charges under Section 406/420/34 of Indian Penal Code (hereinafter referred to as “IPC”) were framed against the petitioners.

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3. The facts of the case is that the petitioner No.1 being the owner and possessor of the land in question, had entered into an agreement for sale for Rs. 8,00,000/(rupees eight lakhs) only with the respondent No.2 and

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pursuant to the aforesaid agreement to sale, the respondent No.2 paid an amount of Rs. 30,000/- (rupees thirty thousand) only and Rs. 1,50,000/-, (rupees one lakh fifty thousand) only totaling to Rs. 1,80,000/- (one lakh eighty thousand) only as earnest money. It is the specific case of the respondent No.2 that during subsistence of the aforesaid agreement, the petitioner No.1 sold the subject land to the petitioner No.2 by executing registered sale deed. Accordingly, an FIR was lodged on 16.10.2012 which was registered as Bongaigaon P.S. Case No. 365/2012, under Section 406/420/34 of IPC.

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4. After investigation, Charge-sheet was submitted and thereafter the learned trial Court on 28.01.2013 framed charges under Section 406/420/34 of IPC against the petitioners. Aggrieved by the aforesaid order of the learned trial Court, the present criminal petition has been filed for setting aside and quashing the aforesaid order dated 28.01.2013.

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5. Mr. D. Choudhury, learned Counsel for the petitioners submits that the case is purely a case of breach of agreement and thus, the petitioners are entitled to be discharged. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of Kunti and Another Vs State of Uttar Pradesh and Another , reported in 2023 6 SCC 109 .

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6. Per contra, Mr. K. Sarma, learned Counsel for the respondent No.2 submits that the allegation in the FIR and

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Charge-sheet clearly makes out a criminal case against the petitioners and as such, the order impugned in the petition warrants no interference from this Court under Section 482 of Cr.P.C. He further submits the power of the High Court under Section 482 of Cr.P.C. for quashing criminal proceeding should be exercised sparingly in rarest of rare cases. In support of the aforesaid submission, he relies upon the decision of the Apex Court in the case of State of Haryana and Others Vs Bhajan Lal and Others , reported in 1992 Supp(1) Supreme Court Cases 335 .

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7. I have heard the submissions made by both the learned Counsels appearing for the contending parties and perused the material available on record. I have also considered the case laws cited at the bar.

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8. Apt at this stage to refer to the FIR dated 16.10.2012, which is reproduced hereunder for ready reference:

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“To

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The Respected Officer-in-charge

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North Bongaigaon PP.

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Sub. Ejahar

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Sir,

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With due respect, beg to state that on last 09/03/2012 with a view to purchase the land measuring 15 lechas situated at Salbari belongs to the below named accused No.1, agreed to purchase the same for Rs.8,00,000/(Rupees Eight Lakh) and entered into an agreement and also paid an amount of Rs.30,000/(Rupees Thirty Thousand) only and Rs.1,50,000/- (Rupees

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One Lakh Fifty Thousand) only totaling to Rs.1,80,000/(Rupees One Lakh Eighty Thousand) only as earnest money. During subsistence of the aforesaid contract, on 06/10/2012, the accused person sold the aforesaid land to the accused No.2 by executing registered sale deed. Such act of the accused No.1, 2 & 3 caused substantial damage to the informant.

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Therefore, humbly request before your Honor to investigate into the matter and to take necessary action.

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Name and Address of the Accused

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1. Mustt Tara Banu Wife of Yusuf Ali. village-Dolaigaon P.S.Bongaigaon.

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2. Md Mahammad Jan Son of unknown, Village – Salbari P.S. Bongaigaon.

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3. Manaruddin Son of unknown, Village Dolaigaon P.S. Bongaigaon

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NB: Enclosed herewith the copy of the agreement.

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Yours faithfully Sd/-Siraful Hussain Son of Late Yakub Ali Village- Gurunanak Nagar, P.S. Bongaigaon M/No.970627581”

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9. Thereafter, it appears that the case was investigated and Charge-sheet was filed after recording statement of the witnesses. Relevant portion of the Charge-sheet is extracted hereunder for ready reference:

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“The breif facts of the case is that on 16/10/2012, the informant, namely, Md Siraful Hussain son of Late Yakub Ali of Guru Nanak Nagar, P.S. & District Bongaigaon, Assam lodged a written FIR stating that on last 09/03/2012 the informant with a view to purchase the land measuring 15 lechas situated at Salbari belongs to the accused No.1 agreed to purchase the same for Rs.8,00,000/(Rupees Eight Lakh) and entered into an agreement and also paid an amount of Rs.30,000/-(Rupees Thirty Thousand) only and Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) only totaling to Rs.1,80,000/(Rupees One Lakh Eighty Thousand) only as earnest money to the accused No.1, Mustt Tara Banu. During subsistence of the aforesaid contract, on 06/10/2012, the accused person sold the aforesaid land to the accused No.2 by executing registered sale deed. As it is alleged in the FIR that due to such purchase and sale by the Tara Banu, Manuruddin and Mahammad Jan, substantial damage has been caused to the informant, case u/s 406/420/34 IPC was registered and investigated.

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During the course of investigation visited the place of occurrence and recorded the statements of the witnesses. As per statement of the witnesses, the offences u/s 406/420/34 is established against the arrested accused person Mustt Tara Banu, wife of late Yusuf Ali Miya of vivekananda Nagar palli near Ma kali Hotel, PS & district - Bongaigaon, and MD Manoruddin, son of Late Kitab Ali of Dolaigaon, P.S. & District - Bongaigaon, Assam, P/A Rawmari, Odalguri, P.S. Dhaligaon, district Chirang, BTAD, Assam and accordingly submitted the charge sheet before the Hon'ble court. The witnesses mentioned in the column No.6 will prove the case. There is no sufficient evidence against the FIR named accused Md. Mahammad Jan, son of Md Manir of salbari, P.S & District

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Bongaigaon and hence prayed before the Hon'ble Court to discharge him from the case. Along with the charge sheet, a copy of the seizure list, a copy of the GDE extract copy and a photocopy of the sale is enclosed.”

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10. It appears that pursuant to submission of Chargesheet the trial Court by order dated 28.01.2013 framed charges under Section 406/420/34 of IPC against the petitioners. The order dated 28.01.2013 is also extracted hereunder for ready reference:

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“ORDER SHEET FOR MAGISTRATE'S RECORDS

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G.R. NO.597/2012 State-Vs-Tara Banu & Anr

Date

Order Signature

28/01/2013:

Accused persons are present. Copy is furnished to the accused, which are received. Upon perusal of C.R. and C.S. it transpires that there is a prima facie case u/s 406/420/34 IPC against the accused persons. Accordingly, charges u/s 406/420/34 IPC are framed against the accused persons, which is read over to the accused persons. They pleaded not guilty and claimed to be tried. Issue summons to PWs.

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Fixed on 28/02/2013 for evidence.

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Sd/-illegible Judicial Magistrate 1st class District-Bongaigaon.”

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11. A reading of the aforesaid order indicates that the

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learned trial Court after perusing the case record and Charge-sheet was satisfied that a prima-facie case under Section 406/420/34 of IPC is made out against the

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petitioners and accordingly, framed charges against them. Undoubtedly, the learned trial Court is not required to go to the sufficiency of the materials at the stage of framing charge, however, if the material brought on record by the prosecution, which prosecution proposes to adduce to prove the guilt of accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, cannot show that the accused committed the offence, the accused is entitled to discharge.

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12. Reference is made to the decision of the Apex Court in the case of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru, reported in ( 2020) 2 SCC 768 . Paragraph 17 and 18 of the aforesaid judgment is reproduced hereunder for ready reference:

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“ 17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

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17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

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17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

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17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, ‘cannot show that the

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accused committed offence, then, there will be no sufficient ground for proceeding with the trial’.

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17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

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17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

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17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

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17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

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18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar¹). The expression, ‘the record of the case’, used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).”

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13. In the case in hand it is clear from the material available on record that the petitioner No.1 entered into an agreement to sell the subject land to the respondent No.2 for a sum of Rs. 8,00,000/- and pursuant to the terms and conditions of the aforesaid agreement, the respondent No.2 paid Rs. 1,80,000/- in total as earnest money to the petitioner No.1. However, the petitioner No.1 during subsistence of the said agreement sold the subject land to the petitioner No.2 by executing registered sale deed. The

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learned trial Court accordingly, framed charges under Section 406/420/34 of IPC against the petitioners.

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14. It is well settled that every breach of trust may not result in criminal breach of trust unless there is evidence showing act of fraudulent misappropriation. The act of breach of trust involves a civil wrong, in which an aggrieved person is entitled to seek recourse in suit for damages or specific performance of contract.

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15. In order to constitute an offence of cheating under Section 415 of the IPC, there has to be a dishonest intention from the very beginning which is sine-qua-non to hold the accused guilty for commission of the said offence. The offence of cheating is established when the accused thereby induces that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted. Thus, mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction.

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16. Reading of the material available on record does not indicate the allegation of initial inducement and deception. In fact, it is stated in the FIR that because of the alleged act of the petitioner No.1, substantial damage has been caused to the respondent No.2. Further, the materials produced by the prosecution does not indicate that the petitioners had fraudulent or dishonest intention right from the beginning of the transaction nor there is

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anything to show that the petitioners had committed an act of fraudulent misappropriation. That being so, no case of cheating under Section 420 of IPC can be said to be made out in the face of the material available on record.

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17. Pertinent that under the terms and conditions of the agreement to sale in question, it appears that the petitioner No.1 due to her urgent need of money entered into the agreement to sale with the respondent No.2. It further appears that under clause 12 and 13 of the terms and conditions of the said agreement both the parties were required to perform their obligation in order to effectuate the sale within a time frame.

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18. It appears that the dispute involved in the instant case is essentially civil in nature. Therefore, it is a clear case of non-performance of contract on the part of petitioner No.1 with regard to sale agreement, which does not give rise to criminal proceeding. Merely on the allegation of failure to keep a promise will not be enough to initiate criminal proceeding. Reference is made to the decision of the Apex Court in the case of Kunti and another (Supra) . Paragraphs 10, 11 and 12 of the aforesaid judgment are reproduced hereunder for ready reference:

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“10. A two judge bench of this Court in ARCL v. Nimra Cerglass Technics (P) Ltd., (2016) 1. scc 348, while deliberating upon the difference between mere breach of contract and the offence of cheating, observed that the distinction depends upon the intention of the accused at the time of the alleged incident. If dishonest intention on part of the accused can

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be established at the of time of entering into the transaction with the complainant, then criminal liability would be attached.

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11. In Vijay Kumar Ghai v. State of W.B (2022) 7 scc 124, one of us, (Krishna Murari J.,) observed in reference to earlier decisions as under:

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‘24. This Court in G. Sagar Suri v. State of U.P. [G. Sagar Suri v. State of U.P., (2000) 2 scc 636: 2000 scc (Cri) 513] 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.

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25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Lid., (2006) 6 scc 736: (2006) 3 scc (Cri) 188] 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: (Indian Oil Corpn. Case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 scc 736: (2006) 3 scc (Cri) 188], scc p. 749, para 13)’

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‘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.’

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12. Having regard to the above wellestablished principles and also noting that the present dispute is entirely with respect to property and more particularly buying and selling thereof, it cannot be doubted that a criminal hue has been unjustifiably lent to a civil natured issue.”

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19. The contention of the learned Counsel for respondent No.2 as regards exercise of this Court’s power under Section 482 of Cr.P.C. to the exercise sparingly in the rarest of rare cases has to be applied in the facts and circumstances of each case. In the facts and circumstances of the present case, no criminal offence being made out on the face of the material available on record, the order of the learned Judicial Magistrate, First Class, Bongaigaon, in

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G.R. Case No. 597/2012 framing charges under Section 406/420/34 of IPC against the petitioners is not justified. Therefore, continuance of further proceeding is unsustainable.

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20. Accordingly, the impugned order dated 28.01.2013 passed by the learned Judicial Magistrate, First Class, Bongaigaon, in G.R. Case No. 597/2012 is set aside and quashed.

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21. Resultantly, subsequent orders passed by the learned trial Court and further proceedings are also quashed.

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22. The criminal petition accordingly, stands allowed.

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JUDGE

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Comparing Assistant

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Mustt Tara Banu and Anr. v. the State of Assam and Anr.

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Mustt Tara Banu and Anr. v. the State of Assam and Anr.

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