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Criminal Appeal No. 78 of 2013 (Arising out of S.L.P. (Crl.) No. 2089 of 2011). Case: Arun Bhandari Vs State of U.P. and Ors.. Supreme Court (India)

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Case NumberCriminal Appeal No. 78 of 2013 (Arising out of S.L.P. (Crl.) No. 2089 of 2011)
CounselFor Appellant: Amit Khemka, Ambhoj Kumar Sinha and Sanorita D. Bharali, Advs. and For Respondents: Chetan Sharma, Sr. Adv., Manjit Singh Ahluwalia and Kamal Mohan Gupta, Advs.
JudgesK.S. Panicker Radhakrishnan and Dipak Misra, JJ.
IssueIndian Penal Code - Sections 406, 415, 420, 468, 479, 482, 567; Code of Criminal Procedure (CrPC) - Sections 161, 190(1), 482; Constitution of India - Articles 226, 227
Citation2013 (1) ACR 658, 2013 (1) AD (SC) 560, 2013 (1) ALD 726 (Cri), 2013 (2) ALJ 80, 2013 CriLJ 1020, 2013 (1) 113 (SC) Cri, 2013 (1) JLJR 464, JT 2013 (1) SC 467, 2013 (4) LW 256, 2013 (2) LW 261 (Crl), 2013 (1) MLJ 475 (Crl), 2013 (I) OLR 877, 2013 (2) RCR 261 (Cri), RLW 2013 (2) SC 950, 2013 (1) SCALE 229, 2013 (2) SCC 801, 2013 (1) UC 549, 2013 (80
Judgement DateJanuary 10, 2013
CourtSupreme Court (India)

Judgment:

Dipak Misra, J.

1. Leave granted.

2. Calling in question the legal pregnability of the order dated 29.1.2011 passed by the High Court of Judicature at Allahabad in Criminal Misc. Writ Petition No. 69 of 2011 whereby the learned single Judge in exercise of jurisdiction under Articles 226 and 227 of the Constitution has quashed the order dated 5.6.2010 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar, taking cognizance Under Sections 406 and 420 of the Indian Penal Code (for short "the Indian Penal Code") against the Respondent No. 2 in exercise of power Under Section 190(1)(b) of the Code of Criminal Procedure (for short "the Code of Criminal Procedure") and the order dated 4.12.2010 passed by the learned Sessions Judge, Gautam Budh Nagar affirming the said order, on the foundation that the allegations made neither in the FIR nor in the protest petition constitute offences under the aforesaid sections, the present appeal by special leave has been preferred.

3. The factual score as depicted are that the Appellant is a Non-Resident Indian (NRI) living in Germany and while looking for a property in Greater Noida, he came in contact with Respondent No. 2 and her husband, Raghuvinder Singh, who claimed to be the owner of the property in question and offered to sell the same. On 24.3.2008, as alleged, both the husband and wife agreed to sell the residential plot bearing No. 131, Block-(Cassia-Fastula Estate), Sector CHI-4, Greater Noida, U.P. for a consideration of Rs. 2,43,97,880/- and an agreement to that effect was executed by the Respondent No. 3, both the husband and wife jointly received a sum of Rs. 1,05,00,000/- from the Appellant towards part payment of the sale consideration. It was further agreed that the Respondent Nos. 2 and 3 would obtain permission from Greater Noida Authority to transfer the property in his favour and execute the deed of transfer within 45 days from the grant of such permission.

4. As the factual antecedents would further reveal, the said agreement was executed on the basis of a registered agreement executed in favour of the Respondent No. 3 by the original allottee, Smt. Vandana Bhardwaj to sell the said plot. After expiry of a month or so, the Appellant enquired from the Respondent No. 3 about the progress of delivery of possession from the original allottee, but he received conflicting and contradictory replies which created doubt in his mind and impelled him to rush to Noida and find out the real facts from the Greater Noida Authority. On due enquiry, he came to know that there was a registered agreement in favour of the 3rd Respondent by Smt. Vandana Bhardwaj; that a power of attorney had been executed by the original allottee in favour of the Respondent No. 2, the wife of Respondent No. 3; that the original allottee, to avoid any kind of litigation, had also executed a will in favour of the Respondent No. 3; and that the Respondent No. 2 by virtue of the power of attorney, executed in her favour by the original allottee, had transferred the said property in favour of one Monika Goel who had got her name mutated in the record of Greater Noida Authority. Coming to know about the aforesaid factual score, he demanded refund of the money from the Respondents, but a total indifferent attitude was exhibited, which compelled him to lodge an FIR at the Police Station, Kasna, which gave rise to the Criminal Case No. 563 of 2009.

5. The Investigating Officer, after completing the investigation, submitted the final report stating that the case was of a civil nature and no criminal offence had been made out. The Appellant filed a protest petition before the learned Magistrate stating, inter alia, that the accused persons had colluded with the Investigating Officer and the Station House Officer as a result of which the Investigation Officer, on 22.10.2009, had concluded the investigation observing that the dispute was of the civil nature and intended to submit the final report before the court. The Appellant coming to know about the same submitted an application before the concerned Area Officer, who, taking note of the same, handed over the investigation to another S.S.I. of Police on 24.11.2009. The said Investigating Officer recorded statements of the concerned Sub-Registrar, the Chief Executive Officer of Greater Noida Authority, from whose statements it was evident that the accused persons were never the owners of the property in question and the original allottee had not appeared in the Greater Noida Authority and not transferred any documents. He also recorded the statement of original allottee who had stated that the property was allotted in her name in 2005 and on a proposal being made by Raghuvinder Singh, a friend of her husband, to sell the property she executed an agreement to sell in his favour and a General Power of Attorney in the name of his wife, Savita Singh, at his instance but possession was not handed over to them. He also examined one Sharad Kumar Sharma, who was a witness to the agreement to sell and the Power of Attorney executed by the original allottee, and said Sharma had stated that the General Power of Attorney was executed to implement the agreement to sell executed in favour of Raghuvinder Singh. The Investigating Officer obtained an affidavit from the complainant which was kept in the case diary, and on 25.2.2010 it was recorded in the case diary that a criminal offence had been made out against the accused persons. The case diary also evinced that there was an effort for settlement between the informant and the accused persons and the accused persons were ready to return the amount of Rs. 1,05,00,000/- to the Appellant. On 10.3.2010, he made an entry to file the charge-sheet against the Respondents Under Sections 420, 406, 567, 468 and 479 of the Indian Penal Code. At this stage, the accused persons again colluded with the previous Investigating Officer and the Station House Officer and got the investigation transferred to the previous Investigating Officer. Coming to know about the said development, the Appellant submitted a petition before the Senior Superintendent of Police, Gautam Budh Nagar on 6.5.2010, but before any steps could be taken by the higher authority, the said Investigating Officer submitted a final report stating that no offence under the Indian Penal Code had been made out. In the protest petition it was urged that the whole case diary should be perused and appropriate orders may be passed.

6. On the basis of the aforesaid protest petition the Chief Judicial Magistrate, on 5.6.2010, perused the final report submitted by the Investigating Officer, the entire case diary, the protest petition and the statements recorded Under Section 161 of the Code of Criminal Procedure by the previous Investigating Officer and came to hold that even if a suit could be filed, the fact situation prima facie revealed criminal culpability and, accordingly, took cognizance Under Sections 420 and 406 of the Indian Penal Code against the Respondents and issued summons requiring them to appear before the court on 9.7.2010.

7. Being dissatisfied with the said order, the Respondents preferred Criminal Revision No. 108 of 2010 before the learned Sessions Judge contending, inter alia, that the FIR had been lodged with an ulterior motive to pressurize the Respondents to return the earnest money and the complainant had, in fact, committed breach of the terms of the agreement; that the allegations made in the FIR could only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction regard being had to the nature of the dispute; that the learned Magistrate had taken cognizance without any material in the case diary; and that the exercise of power Under Section 190(1) (b) of the Code of Criminal Procedure was totally unwarranted in the case at hand. The revisional court scanned the material brought on record, perused the case diary in entirety, took note of the conduct of the Investigating Officer who had submitted the final report stating that the allegations did not constitute any criminal offence despite the material brought on record during the course of investigation by the Investigating Officer, who was appointed at the instance of the Area...

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