The Lucknow Bench of the Allahabad High Court while allowing an application observed that it’s trite law that mens rea is an essential ingredient for composition of offence and all civil wrongs cannot be termed as an offence.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing an application under section 482 filed by Harish Gulla and Another.
By means of the application, prayer has been made for quashing the charge sheet dated 05.09.2019 and 10.10.2019, in Case under Sections 406, 419, 420, 506, 467, 468, 471 of IPC at Police Station- Vibhuti Khand, District Lucknow and further the summoning order dated 06.09.2019 and 18.11.2019 has also been assailed.
The facts of the case are that the UP Government has formulated Hi-Tech Township Policy, 2003 for planned development in the State of UP on 23.08.2003 and after promulgation of the policy, M/s Ansal Properties and Infrastructure Ltd., being eligible for undertaking township, applied for and was granted Hi-Tech Township licence on 26.11.2005 and it took shape in the name and style of ‘Sushant Golf City Lucknow’.
The Hi-Tech Township Policy, 2003 was amended time to time and other Hi-Tech Township Policy, 2007 was promulgated on 7th September 2007 while superseding the Hi-Tech Township Policy, 2003 and at the same time it was provided that the existing licences, granted earlier vide Policy 2003, shall remain continue.
On 27 January 2010, a Government Order was issued whereby the Hi-Tech Township Policies, 2003 and 2007 were brought to an end, though it was provided that HiTech Township Projects shall continue till it’s conclusion and this was informed to the Chairman of various development authorities throughout the State of UP vide Government Order dated 7.04.2021.
Having at a glance of the government orders dated 23.08.2003, 17.09.2007 and 7.04.2021, it is apparent that the Government of UP had to facilitate the availability of land to the developers by way of acquisition and payment of compensation and the government land like pathway, land of reserve category, Gaon Sabha land, chakroad, canal, etc was to be exchanged in favour of the developers and thus, it was incumbent upon the State Government to make procurement of land which was a continuous process and at the same time, it was also provided that State shall take care so as to ensure that no harassment could be caused to the developer and if any complaint is made against the developer, the action may be taken only after approval of High Power Committee, under the chairmanship of the chief secretary of State of UP.
Once the Hi-Tech Township Project in the name of Sushant Golf City, Lucknow was allotted to M/s Ansal Properties and Infrastructures Ltd, as per the eligibility criterion, the opposite party no 2 and his wife namely, Mrs Sunita Agarwal expressed their desire for booking several plots, flats and villas etc both in their individual names and also on behalf of their respective companies, for which 11 MoUs were executed in between 2011 to 2012, vide the same, the plots etc were sought to be booked with the condition of timely payment, as per schedule.
Procurement of land bank was a continuous process, therefore, 11 MoUs could not be performed, within time, in favour of the complainant, his wife or any of the company represented by them. Further there is one hurdle of clause (u) which says that the ‘second party cannot sell/transfer his right in the FSI, either in full or part, to any third-party without the prior written consent of the first party, which the first party at its sole discretion may allow or deny such transfer, and in case the first party allows such transfer then it will charge the administrative charges for the same. The MoU was to be followed by booking of respective flats/villas/plots etc and resultantly, the allotment letters were issued and followed by execution of sale deeds and due to all these, certain dispute arose between M/s Ansal Properties and Infrastructure Ltd and opposite party no 2 and his wife and therefore, the opposite party no 2 instituted an application under Section 156(3) of the Criminal Procedural Code and thereafter, an FIR was lodged.
As per the content of First Information Report, the complainant, i.e, the opposite party no 2 met with Director of the company, namely, M/s Ansal API and on assurance given by them regarding the return on the investment, he started investing in the project of Sushant Golf City, Lucknow but various lands and plots, which were initially allotted to him, were not provided and thus, it has been alleged that cheat and fraud has been committed by the applicants.
After the aforesaid FIR, the applicants were arrested by investigating agencies and charge sheet was filed against them and the Chief Judicial Magistrate passed the summoning order, vide the same, the applicants were summoned.
In the meantime, a development took place, where the complainant and the petitioners entered into a settlement deed dated 28.12.2019, whereby all the dispute relating to investments and properties amongst each other, were settled amicably. The applicants were granted bail vide orders dated 07.12.2019 and 06.02.2020 and while granting the bail, the court has also taken note of the compromise entered into between the parties.
The Court noted that the fact that it is not the case where the property in question was on the first day of MoU, was in the possession or ownership of the company, namely M/s Ansal and there was also certain terms and conditions in the policy regarding handing over the land to the M/s Ansal Company, subject to exchange of certain lands, canals, chak-marg, etc. and after it was decided that the M/s Ansal succeeded to have the Hi-Tech Township in the name of Sushant Golf City Lucknow, the dispute with respect to exchange of public utility lands were creeping in, throughout years and an MoU was signed in between the M/s Ansal Company as well as the opposite party no 2 and its company, then certainly the same would have been with implied condition or circumstances, which would arise subsequently and more particularly, where the intent of committing cheat and fraud is under question. It is not understandable how a company or person can imagine that a certain dispute would arise in future, which will create a hurdle for the subsequent performance of an MoU.
Might be some recklessness or lethargicness on the part of the M/s Ansal Company and its authority to decide the matter, but ultimately that cannot be termed as an offence, particularly with respect to execution of the MoU between the applicants and the opposite party no 2.
“It’s trite law that mens rea is an essential ingredient for composition of offence and all civil wrongs cannot be termed as an offence. The facts of each and every case are to be examined while reaching to the conclusion that whether a wrong act comes under the purview of offence? So far as the matter is concerned, while examining the facts of the case, it emerges that mens rea is missing.
The court has also taken note of the undertaking of the applicants that they are still ready to perform addendum dated 14.07.2022 to the settlement agreement and therefore this court is of opinion that allowing the further criminal proceeding would amount to harassment of the applicants and therefore the criminal proceedings against the applicants are abuse of process of law”, the Court observed while allowing the application.
Consequently, the summoning orders dated 06.09.2019 and 18.11.2019 are hereby set aside and the criminal proceedings arising out of Case u/S 406,419,420,506,467,468 and 471 of IPC, Police Station- Vibhuti Khand, district- Lucknow, are hereby quashed, the Court ordered.