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CASE NO.: Appeal (crl.)  632 of 2006

PETITIONER: Ram Biraji Devi & Anr.

RESPONDENT: Umesh Kumar Singh & Anr.

DATE OF JUDGMENT: 11/05/2006

BENCH: Ashok Bhan & Lokeshwar Singh Panta

JUDGMENT: JUDGMENT

O R D E R [Arising out of S. L. P. (Crl.) No.3840 of 2005]

Lokeshwar Singh Panta, J.

       Special leave granted.                  This appeal arises out of the judgment dated 13.1.2005  passed by the High Court of Judicature at Patna in Criminal  Misc. No. 11930 of 2004 dismissing the petition filed by the  appellants under Section 482 of the Cr. P.C. seeking quashing  of the order dated 8.8.2003 of the Judicial Magistrate, Gaya,  in Complaint Case No.298/2003 \026 T.R. No.808/2003.         Briefly stated the facts of the case are that the  Complainant Umesh Kumar Singh - respondent No.1 herein,  filed a complaint against the appellants before the Chief  Judicial Magistrate, Gaya, inter alia alleging that Smt. Ram  Biraji Devi \026 appellant No.1 herein, was allotted MIG Plot No.  M-27 situated in Housing Board Colony, Gaya.  In July 2002,  both the appellants represented to the complainant that they  were badly in need of money and wanted to transfer the  allotted plot to some person interested to purchase the said  plot.  The complainant expressed his willingness to purchase  the plot.  It was alleged that the parties orally agreed that the  complainant would pay to the appellants a sum of Rs. 4 lakhs  as price of the plot and on payment of the said amount, the  appellants would transfer the plot in favour of the  complainant.         It was also alleged that the complainant paid a sum of  Rs.80,000/- to the appellants as consideration amount of the  sale price of the plot on different dates between 15.7.2000 and  15.12.2002.  The appellants alleged to have made promises to  the complainant that they would execute a written agreement  in favour of the complainant on 15.1.2003, but since they  failed to execute the agreement on 20.1.2003, the complainant  along with three other persons went to the house of the  appellants and enquired about the reason for delay in  execution of the agreement.  The appellants flatly denied  acceptance of Rs.80,000/- and refused to transfer the plot in  favour of the complainant.  On the basis of the above premise,  a criminal complaint dated nil came to be filed in the Court of  Chief Judicial Magistrate, Gaya, against the appellants.              It appears from the record that Judicial Magistrate, First  Class, Gaya, recorded the statements of the complainant and  his witnesses on 19.4.2003 and thereupon took cognizance of

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the offences under Sections 406, 419, 420 and 120-B of  Indian Penal Code vide order dated 8.8.2003.         Being aggrieved against the order of taking of the  cognizance by the Judicial Magistrate the appellants  approached the High Court of Patna under Section 482 of the  Cr. P.C. praying for quashing of the cognizance taken by the  Magistrate.  The High Court by the impugned order dated  13.1.2005 dismissed the said petition.  Hence, this appeal by  way of special leave.         We have heard learned counsel for the parties and  perused the material on record.  The learned counsel for the  appellants contended that the Hon’ble High Court has failed to  appreciate that on bare perusal of the contents of the  complaint, no offence is made out against the appellants and  the complaint filed by the complainant is mala fide, false and  frivolous against appellant No.1, who is stated to be about 70  years old lady and is suffering from heart disease, whereas the  appellant No.2 was working in New Delhi at the relevant time  and had gone to Bombay to look after his ailing sister, Manju  Tripathi, who was suffering from cancer, on the date of  occurrence as alleged in the complaint.  According to the  learned counsel, the dispute involved in the alleged complaint  is of civil nature and none of the acts allegedly committed by  the appellants gave rise to any criminal liability.         Per contra, learned counsel for the respondent- complainant contended that the contents of the complaint  would disclose the commission of the cognizable offence and  this Court at the preliminary stage would not be justified in  embarking upon an enquiry as to the reliability or  genuineness of the allegations made in the complaint.  He also  contended that mere fact that a dispute is of civil nature could  not be made a ground for quashing the complaint or FIR.  In  support of this submission, reliance is placed upon a decision  of this Court in Trisuns Chemical Industry Vs. Rajesh Agarwal  & Ors. [(1999) 8 SCC 686].         We have given our anxious and thoughtful consideration  to the respective contentions of the learned counsel for the  parties.  On examination of the contents of the complaint, we  find that there is not even a whisper of allegation or averment  made therein constituting an offence for which cognizance has  been taken by the learned Magistrate against the appellants.   On the one hand, the complainant himself has stated in the  complaint that oral agreement to sell the plot took place in  July 2002 and on the other hand, he has alleged that he  started paying the consideration amount for the purchase of  the plot between 15.7.2000 and  15.12.2002.  The version of  the complainant is self-contradictory and, therefore, no prima  facie case is made out against the appellant involving them in  the commission of the alleged offences.         The learned Magistrate in his order has categorically  stated that the perusal of the complaint would make it clear  that there was a dispute in respect of sale and purchase of  land between the parties.  In our view even if the allegations  made in the complaint are accepted to be true and correct, the  appellants cannot be said to have committed any offence of  cheating or criminal breach of trust.  Neither any guilty  intention can be attributed to them nor there can possibly be  any intention on their part to deceive the complainant.  No  criminal case is made out by the complainant against the  appellants in his complaint and in the statements of the  complainant and his witnesses recorded by the Magistrate  before taking of the cognizance of the alleged offences.  The  averments of the complaint and the statements of the  complainant and his witnesses recorded by the Magistrate  would amount to civil liability inter se the parties and no

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criminal liability can be attributed to the appellants on the  basis of the material on record. In Trisuns Chemical Industry’s  case (supra), relied upon by the complainant, this Court held  as under: "Quashing of FIR or a complaint in  exercise of the inherent powers of the  High Court should be limited to very  extreme exceptions.  Merely because an  act has a civil profile is not sufficient to  denude it of its criminal outfit.  The  provision incorporated in the agreement  for referring the disputes to arbitration is  not an effective substitute for a criminal  prosecution when the disputed act is an  offence.  Arbitration is a remedy for  affording reliefs to the party affected by  breach of the agreement but the  arbitrator cannot conduct a trial of any  act which amounted to an offence albeit  the same act may be connected with the  discharge of any function under the  agreement.  Hence, those are not good  reasons for the High Court to axe down  the complaint at the threshold itself.  The  investigating agency should have had the  freedom to go into the whole gamut of the  allegations and to reach a conclusion of  its own.  Pre-emption of such  investigation would be justified only in  very extreme cases."

       There cannot be any disagreement to the well-settled  proposition of law that the High Court should exercise its  inherent powers in extreme exceptions to quash an FIR or a  complaint.  The ratio as laid down in Trisuns Chemical  Industry’s case (supra) is of no help and assistance to the  complainant in the facts and circumstances of the present  case.  The complaint instituted does not disclose that an  offence under Section 420 is made out.  Cognizance taken by  the Magistrate thereon against the appellants for offences  u/Ss. 406/419/420 and 120-B IPC are clearly an abuse of the  process of court and interference by this Court is expedient in  the interest of justice.  This is a case of extreme exception  where the High Court ought to have exercised its inherent  jurisdiction and power to set aside the unwarranted and  unjustified order of the Magistrate impugned before it by the  appellants.         For the aforementioned reasons, we quash the impugned  order of the High Court of Judicature at Patna dated  13.01.2005 passed in Criminal Misc. No.11930 of 2004.   Consequently, the complaint  filed by the Complainant and  subsequent order dated 8.8.2003 of the Judicial Magistrate,  Gaya, in Complaint Case No.298 of 2003 \026 T.R. 808/03  whereby and whereunder cognizance of offence under Sections  406, 419, 420, 120-B, IPC, has been taken against the  appellants and summons have been ordered to be issued  against them for facing trial for the above-said  offences shall  also stand quashed.                     The appeal stands allowed accordingly.