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Anil Kumar and Ors. Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (05 May 2018)

A purely civil dispute can be given a colour of a criminal offence to wreak vengeance, it is necessary to draw a distinction between a civil wrong and a criminal one



In instant petition, filed under Section 561-A of the Code of Criminal Procedure, 1973, the Petitioners seek the indulgence of present Court in quashing the FIR registered against them for the commission of offences under Sections 426, 420, 467, 468, 471, 406 of the Ranbir Penal Code (RPC). Issue raised in present petition is whether the criminal proceedings initiated against the accused are manifestly attended with mala fides and devised to wreck vengeance on the accused and whether the allegations made in the FIR or the complaint, if taken at their face value and accepted in their entirety, do prima facie constitute an offence or make out a case against the accused.

The contention of the informant i.e. the Respondent No. 3 is that, the Petitioners did not specifically perform the contract, which they executed in his favour. Such a course gives rise to civil consequences. Section 54 of the Transfer of Property Act, 1882 makes it clear that, an agreement to sell does not itself create any interest or title on immoveable property. Specific performance is an equitable remedy in the law of contract, whereby a Court issues an order requiring a party to perform a specific act that is to complete the performance of a contract. It is an equitable relief which a Civil Court can grant instead of directing the payment of money. Specific performance in real estate term means when either the buyer or the seller wants to complete the sale under the agreed terms and conditions in the agreement to sell. An agreement to sell is a contract between the buyer and seller of the property in which like any other contract, the deal can go wary. Therefore, it is important for both the buyer and the seller to pay due consideration while making or accepting the offer.

The SDPO, who conducted the enquiry into the matter and came to the conclusion that, the case has a civil lineage and has to be determined by a civil Court, was right in his conclusions. Therefore, even if the allegations made in the FIR or the complaint are taken at their face value and accepted in their entirety, these do not constitute any offence or make out a case against the accused. Respondent No. 3 in pursuing his claim has to knock at the doors of the civil Court and he cannot set the criminal law into motion for implicating the Petitioners for the commission of the offences for which the FIR has been registered against them.

The FIR against the Petitioners is totally unwarranted, unjust and against the law. In 'Joseph Salavaraj Vs. State of Gujrat & Ors.', the Supreme Court has viewed that, a purely civil dispute can be given a colour of a criminal offence to wreak the vengeance against the Applicant and it is necessary to draw a distinction between a civil wrong and a criminal one and the Applicant cannot be allowed to go through the rigmarole of a criminal prosecution for a long number of years, even when admittedly a civil suit has been filed.

It was on 3rd April, 2012 and 11th June, 2012 that the cheques were issued by the Respondent No. 3 in favour of the Petitioner Nos. 1 & 3. These cheques were delivered to the Petitioner Nos. 1 & 3 in token of the advance money for the purchase of the property i.e. a house situated at Gandhi Nagar, Jammu. These dates, have been culled out from the FIR lodged by the informant. The informant i.e. Respondent No. 3, after a great lull, filed a complaint before the learned Chief Judicial Magistrate, which was forwarded to the SHO with a direction to investigate the matter under law, if cognizable offence appears to have been committed by the accused. The FIR was registered on 2nd April, 2013 i.e. much after the time laid down in the law, which emphatically provides that, an inquiry requires to be made where there is abnormal delay/laches in initiating the prosecution. No reason has been spelt out as to how and why this delay occurred in filing the complaint before the Court.

Section 561-A of Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give an effect to an order under the code (ii) to prevent abuse of process of Court and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have the inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. Courts are invested with all such powers as are necessary to do right and to undo a wrong in the course of administration of justice on the principle of Quando lex aliquid alique concedit concediture et id Sine quo res ipsa esse non protest (When the law gives the person anything, it gives him that without which it cannot exist). The petition is allowed, as a consequence of which, FIR registered against the Petitioners for the commission of offences under Sections 426, 420, 467, 468, 471 & 406 of RPC, is quashed.

Relevant : 'Joseph Salavaraj Vs. State of Gujrat & Ors.' reported in MANU/SC/0719/2011: 2011 (7) SCC 59


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