The pre-condition of returning the affidavit/agreement and cheque for repayment and the proposition of law that innocent persons should not suffer a protracted trial for the whims and dishonest intentions of a complainant.

JUDGMENT

Ramendra Jain, J. - Prayer in this petition under Section 482 Cr.P.C., 1973 is for quashing FIR No. 188 dated 13.05.2015, under Sections 403, 406, 420 and 506 IPC, Police Station Rajendra Park, District Gurgaon (P-1) and all subsequent proceedings arising there from.

2. Briefly, complainant-Jeewan Lata lent Rs. 5,50,000/- to the petitioner on 10.09.2013, for a limited period, against a cheque and affidavit/agreement between them with the condition that affidavit/agreement (P-2) and cheque in question (P-3) would be returned to the petitioner only on repayment of loan amount. According to the complainant, on 03.05.2015, petitioner called her at his. house on the pretext of repaying the loan amount. Consequently, complainant along with her husband went to the house of the petitioner, where he allegedly took back affidavit/agreement (P-2) and cheque (P-3), without repaying the amount. The petitioner also threatened the complainant and her husband that in case, they ask for money, he would commit suicide and implicate them by mentioning their names in the suicide note.

3. Learned counsel for the petitioner contends that return of the agreement/affidavit (P-2) and cheque (P-3) was a pre-condition before repayment of the borrowed aforesaid amount. The petitioner paid the said amount to the complainant on 07.05.2014 and take back his affidavit/agreement (P-2) and cheque (P-3). However, after one year, complainant becoming dishonest lodged false FIR (P-1) in question against the petitioner. Even otherwise, from the contents of FIR, it is apparent that dispute amongst the parties is of civil nature. Section 403 I.P.C. is only a definition. Therefore, petitioner could not have been prosecuted under Section 403 I.P.C. Sections 420 and 406 I.P.C. are antithesis of each other. Resultantly, the petitioner could not have been prosecuted, simultaneously under both the offences. Offence under Section 506 I.P.C. is not made out in view of the fact that there is no allegation of criminal intimidation from the petitioner's side.

4. On the other hand, learned State counsel assisted by learned counsel for the complainant refuting the above submissions of learned counsel for the petitioner, contends that story put forth by petitioner of returning the borrowed amount is contradictory in itself, in view of contradictory pleadings in the petition. The matter in dispute required appreciation of evidence, which can only be decided after complete trial. At one stage, petitioner has pleaded in his petition that he had returned the borrowed amount on 07.05.2014. Contrary to it, in the foregoing paras, he has pleaded that husband of the complainant had purchased iron bars from him. Therefore, account of sale and purchases was adjusted in the borrowed amount. Subsequently, he paid Rs. 4 lakh on 07.05.2014. The Hon'ble Apex Court in various pronouncements held that in ordinary circumstances, a FIR cannot be quashed.

5. Having given thoughtful consideration to the rival submissions, this Court finds instant petition merits acceptance for the reasons to follow:-

1. Any contradictory pleadings of petitioner in the instant petition as alleged by learned counsel for the complainant, hardly affects the merits of case, inasmuch as, fact of borrowing and lending money against affidavit/agreement (P-2) and cheque (P-3) has not been denied by any of the parties. It is also undisputed that affidavit/agreement (P-2) and cheque (P-3) were to be returned to the petitioner on repayment of the loan amount or the same were to be torn with mutual consent. Therefore, it is evident on record that returning of agreement (P-2) and cheque (P-3) was the pre-condition of repayment of loan amount.

2. Admittedly, complainant is not in possession of affidavit/agreement (P-2) and original cheque (P-3), which impliedly and expressly proves that the same were returned by the complainant to the petitioner on receipt of borrowed amount, allegedly lent by her to the petitioner.

3. The