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Tuesday, December 17, 2013

sec.420 - cheating - agreement of sale - received Rs.50 lakhs - sold parking place kept for a Club House as per municipal records - committed an offence - when there is ample evidence on record to say that accused played fraud on complainant - quashing of complaint is wrong - High court orders are set aside = Ashfaq Ahmed Quereshi & Anr. …Appellants Versus Namrata Chopra & Ors. …Respondents = judis.nic.in/supremecourt/filename=41096

sec.420 - cheating - agreement of sale - received Rs.50 lakhs - sold parking place kept for a Club House as per municipal records - committed an offence - when there is ample evidence on record to say that accused played fraud on complainant - quashing of complaint is wrong - High court orders are set aside =

There is sufficient evidence on record to show that the property
      belonged not only to the respondent Nos.1  &  2,  but  they  were  the
      owners alongwith respondent Nos.3 and 4.  The respondent No.3 has died
      and respondent No.4 has been deleted from the array of parties by this
      court earlier.  There is ample evidence on record that the  permission
      had been sought and obtained from Municipal Corporation of Bhopal  for
      raising the construction of a Club House and the land in  dispute  had
      been shown as vacant  land  for  parking.  It  is  too  late  for  the
      respondent Nos.1 & 2 to say that the respondent Nos.3 and 4 might have
      forged their signatures for the reason that it is not  their  case  in
      the counter affidavit or even before the High Court that they had ever
      raised any objection or filed any complaint before the police  or  any
      competent court for forging their signatures by someone  else  on  the
      said application. More so, there are disputes regarding partition  and
      demarcation of shares between the respective parties.  The sale  deeds
      are also on record that their  shares  have  been  sold  not  only  by
      respondent Nos.3 & 4 but also by respondent Nos.1 & 2 subsequently and
      there is no land available today.  No explanation could  be  furnished
      by Mr. Prashant Kumar appearing for respondent nos. 1 & 2  as  to  why
      this fact had not been brought to the notice of the court.
      5.    As the case raises a large number of disputed questions of fact,
      we are of the considered opinion that there was no  occasion  for  the
      High Court to allow the petition under Section 482 Cr.P.C.  and  quash
      the criminal proceedings qua the said respondents.
      6.    In view of the above, we set aside  the  impugned  judgment  and
      order dated 15.3.2012 and allow the appeal. The learned trial court is
      directed to proceed against the said respondents  in  accordance  with
      law.


REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.  2100 of 2013


      Ashfaq Ahmed Quereshi & Anr.                          …Appellants


                                   Versus


      Namrata Chopra & Ors.                                    …Respondents




                                  O R D E R


      Dr. B.S. CHAUHAN, J.
      1.    This appeal has been preferred against  the  impugned   judgment
      and order dated 15.3.2012  passed by the High Court of Madhya  Pradesh
      at Jabalpur in M.Cr.C. No. 8882/2011, by  which  the  High  Court  has
      quashed the criminal proceedings against the respondent Nos. 1  and  2
      in exercise of its  power  under  Section  482  of  Code  of  Criminal
      Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’).
      2.    Facts and circumstances giving rise to this appeal are that:
      A.    The appellants entered  into  an  agreement  for  sale  of  land
      admeasuring 1.10 acres of land out of 2.20  acres  of  total  land  on
      26.11.2009 which had been claimed by the said respondents 1 & 2 to  be
      of their exclusive ownership and for that appellants  paid  a  sum  of
      rupees fifty lakhs to the said respondents as earnest money out of the
      consideration of Rs.1,50,93,540/-.
      B.    The sale deed could not be executed as the  appellants  did  not
      make the payment for the reason that  the  said  respondents  did  not
      complete the legal formalities for transferring the land.  
 Later  on,
      the appellants came to  know  that  the  said  respondent  Nos.1  &  2
      alongwith other co-sharers had got permission dated 27.3.2006 from the
      Municipal Corporation of Bhopal for construction of the Club House  on
      the part of the said land and the subject matter of agreement to  sell
      had been shown therein as open land for parking  purposes.   
The  Club
      House has already been constructed on the land and the suit land is to
      be used only for parking purpose.
      C.    After realizing that the appellants got cheated, there had  been
      claims and counter claims between the parties and  ultimately  several
      notices were exchanged between the parties.  
The appellants claimed  a
      refund of rupees fifty lakhs  with  interest,  while  the  respondents
      wanted to  forfeit  the  earnest  money  for  non-payment  of  further
      instalments as agreed by the parties. The appellants filed a complaint
      under Section 200 Cr.P.C. on 26.8.2010.
      D.    As the respondents came to know about filing  of  the  complaint
      they sold the suit property to one Ms. Nanhi J. Walia  on  23.10.2010.
      E.    In the complaint case,  evidence  of  the  complainant  and  his
      witnesses were recorded in November, 2010  and  being  satisfied,  the
      learned Magistrate took cognizance vide order dated 6.12.2010 for  the
      offence punishable under Section 420 of Indian Penal Code, 1860.
      F.    All the shares of other co-sharers of the said respondent Nos. 1
      & 2 were also sold on 23.2.2011 to Ms. Nanhi J. Walia.
      G.    Aggrieved, the respondent Nos. 1 &  2  filed  a  petition  under
      Section 482 Cr.P.C. for quashing the complaint qua them on the  ground
      that there had been a partition between the parties  (co-sharers)  and
      so far as the application for seeking permission  to  raise  the  Club
      House on the suit land was concerned, it had not been  signed  by  the
      said respondents/applicants, rather their signatures had  been  forged
      by the co-sharers.
      H.    The High Court considered the case of both sides and  ultimately
      quashed the criminal proceedings qua the said respondent Nos. 1 and 2.


            Hence, this appeal
      3.    We have heard Shri Vikas Upadhyay, learned counsel appearing for
      the appellants, Shri Prashant Kumar, learned  counsel  for  respondent
      Nos. 1 & 2 and  Shri Arjun Garg, learned counsel  for  the  State  and
      have also gone through the record of the case.
      4.    There is sufficient evidence on record to show that the property
      belonged not only to the respondent Nos.1  &  2,  but  they  were  the
      owners alongwith respondent Nos.3 and 4.  The respondent No.3 has died
      and respondent No.4 has been deleted from the array of parties by this
      court earlier.  There is ample evidence on record that the  permission
      had been sought and obtained from Municipal Corporation of Bhopal  for
      raising the construction of a Club House and the land in  dispute  had
      been shown as vacant  land  for  parking.  It  is  too  late  for  the
      respondent Nos.1 & 2 to say that the respondent Nos.3 and 4 might have
      forged their signatures for the reason that it is not  their  case  in
      the counter affidavit or even before the High Court that they had ever
      raised any objection or filed any complaint before the police  or  any
      competent court for forging their signatures by someone  else  on  the
      said application. More so, there are disputes regarding partition  and
      demarcation of shares between the respective parties.  The sale  deeds
      are also on record that their  shares  have  been  sold  not  only  by
      respondent Nos.3 & 4 but also by respondent Nos.1 & 2 subsequently and
      there is no land available today.  No explanation could  be  furnished
      by Mr. Prashant Kumar appearing for respondent nos. 1 & 2  as  to  why
      this fact had not been brought to the notice of the court.
      5.    As the case raises a large number of disputed questions of fact,
      we are of the considered opinion that there was no  occasion  for  the
      High Court to allow the petition under Section 482 Cr.P.C.  and  quash
      the criminal proceedings qua the said respondents.
      6.    In view of the above, we set aside  the  impugned  judgment  and
      order dated 15.3.2012 and allow the appeal. The learned trial court is
      directed to proceed against the said respondents  in  accordance  with
      law.


                                         .........................………………..J.
                                                                (DR.    B.S.
      CHAUHAN)



      .............………………………J.
                                                (S.A. BOBDE)
      New Delhi,
      December 17,  2013




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