HIGtLCOURT OF CHHATTISGARH, BILASPUR v. Rajeshwar Prasad

Mrs. Meena Shastri, counsel for the petitioners. MF. Ashok Kumar Shukla, counsel for the respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORAL ORDER (11-9-2009)

1. This is a petition under Section 482 of Procedure, 1973 (for short 'the Code') for quashment of criminal proceeding pending before the Court of Judicial Magistrate First Class, Surajpur in Criminal Complaint Case No.364/2004 instituted at the Code of Criminal the respondent the instance of for the offence punishable under • Sections 419, 420, 205, 471, 465, 467, 468, 294, 506B & 323 of the I.P.C. against the petitioners. '^1!-

2. Quashment of criminal proceeding is prayed on the ground that on the basis of same set of facts the alleged father of the complainant/ respondent herein had filed a civil suit in the year 1998 and after lapseof more than three years from the date of alleged execution of sale deed, filing of criminal complaint relating to the act committed by the petitioners herein against deceased Purushottam in the year 1998, is only abuse of the process of the Court.

3. Brief facts giving rise to this petition are that one Purushottam (since deceased) had filed civil suit in the year 1998 against the petitioners herein & other persons for declaration of title & injunction in which it has been pleaded that the petitioners herein have got executed the sale deed dated 25-9-97 of the land belonging to him by committing forgery and presenting some fake person as Purushottam which has been specifically denied by the petitioners herein. According to the the respondent herein, on 3-4-2000 Purushottam had case of executed will deed in favour of the complainant/ respondent herein and after the death of Purushottam, the present complaint was filed against the petitioners & two others for the offence punishable under Sections 419, 420, 205, 471, 128, 465, 467, 468, 294, 506B,323 of the I.P.C. & 82 of the Registration Act. After making enquiry under Chapter-XV of the Code, learned Judicial Magistrate First Class registered case against the petitioners vide order dated 6-5-2002 in connection with offence punishable under Sections 419, 420, 205, 471, 465, 467, 468, 294, 506B & 323 of the I.P.C. Process has been issued, the petitioners have made their appearance and filed this petition on the ground that firstly, civil suit has been filed and during in absence of any admitted fact, the pendency of such civil suit criminal proceeding is not maintainable and the same is abuse of the process of the Court.

4. I have heard learned counsel for the parties. S.Learned co.unsel for the petitioners vehemently argued that in case of admitted facts civil & criminal proceedings may be initiated, but if the facts are disputed, criminal proceeding is not maintainable and parties are required to avail civil remedy before the civil Court. In this case, parties are already availing civil remedyand the alleged deceased offence is against committed to have Purushotfam, not against the respondent herein, therefore, ~"'-T!s '*e'SS >, ^ 1 s •y respondent herein/complainant is not the person aggrieved and he is not competent to lodge F.I.R. or file complaint for taking cognizance against the petitioners. Most of the offences are punishable with therefore, except for offence under imprisonment for three years, Sections 467 & 468 of the I.P.C. taking cognizance after lapse of three years is bar in terms of Section 468 of the Code. counsel further submits that the complaint does not disclose the Learned commission of offence and statements of the complainant & his witnesses do not clearly disclose the commission of offence. Learned counsel placed reliance in the matter of B. Suresh Yadav v. in which the Apex Court has held that contrary Sharifa Bee & Anr. stand taken by the complainant in civil and criminal proceeding is not permissible, though liability of a person can be both civil and criminal at the same time, inconsistent stand taken by complainant assumes significance, and taking into consideration the inconsistent stand, criminal proceeding is required to be quashed. Learned counsel also argued that the petitioners have not cheated the complainant and The most they have not committed any offence of forgery. important material document i.e. the alleged forged sale deed has not been filed by the complainant before the criminal Court at the time of taking cognizance.

6. On the other hand, learned counsel for the respondent opposed the petition and vehemently argued that at the time of taking cognizance the Court below is required to see prima facie material for taking cognizance and initiating proceeding against the accused persons. Atthe time of taking cognizance, no meticulous scrutiny of evidence or production of all evidence is required. criminal liability & civil If the facts give rise to liability, parties may competently initiate civil Learned counsel placed Indian Oil Corporation v. M/s. & criminal proceedings simultaneously. reliance in the matter of M/s. NEPCIndia Ltd. & Ors. in which the Apex Court has held that on the basis of facts if criminal & civil liability arise, criminal proceeding &civil proceeding may be initiated against the parties and criminal proceeding is not liable to be quashed.

1. This is a petition under Section 482 of the Code against the order taking cognizance and for quashment of criminal proceeding. Scope 12008Cri.L.J. 431 22006AIRSCW3830 "<>—<•''iu:I\ (' i'?-s"*lil-.:'.' '~r':y l::;:-ii:;^fle»ssl of interference in terms of Section 482 of the Code is limited. Power under Section 482 of the Code is exceptional in nature and should be used sparingly. While dealing with exercise of power under Section 482 of the Codein the matter of M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others the Apex Court has held thus, "8. express inherent possessed jurisdiction. It envisages the High Courts. Exercise of power under Section 482 of Code in a case ofthis nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court before the enactment of the Code. circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends ofjustice. It is neither possible nor desirable to lay down any inflexible rule which would govern the No legislative exercise of enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them. by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of All courts, in the absence of whether civil or criminal possess, constitution, all such powers as are necessary to do the right and to undo a wrong in course of "quando lex adminis.tration ofjustice on the principle aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the function as a court of section, Inherent jurisdiction under the appeal or revision. section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to the court has power to prevent produce injustice, It would be an a'buse of process of the court abuse. to allow any action which would result in injustice and prevent promotion ofjustice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it the process of court or amounts to abuse of the court does not provision, inherent AIR 2005 SC 9 quashing of these proceedings would otherwise serve the ends ofjustice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any the allegations are offence is made out even if accepted in toto."

7. At the time of taking cognizance on the basis of complaint, the Court is required to see that if the allegation made in the complaint admjtted in its face value, it would be sufficient for warranting conviction of the accused, and then criminal proceeding may be W iWSm, initiated.

8. in the present case, complaint was filed by the respondent against the petitioners. Bar to taking cognizance after lapse of the period of limitation is credited in Section 468 of the Code which reads as under:- "468. Bar to taking cognizance after lapse of the period of limitation.-(l) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in the period of sub-section (2), after the expiry of limitation. (2) The period of limitation shall be- the offence is punishable (a) six months, with fine only; (b) one year, if the offence is punishable with for a term not exceeding imprisonment one year; three years, with imprisonment one year but not exceeding three years. the offence is punishable for a term exceeding •<i,.. t r.-£-?^»t!/^^ ^^P^S^~S£.s^ (c) (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

9. Sub-section (3) of Section 468 of the Code provides limitation for taking cognizance in cases of offences which may be tried together. In casesof offences which may be tried together, more severe punishment would be the deciding factor for taking cognizance. the light of the provision of sub-section (3) of Section 468 of the Code, the argument advanced by learned counsel for the petitioners limitation for taking cognizance has no relating to the question of force. In IO.AS regards maintainability of criminal proceeding initiated against the petitioners, as held in the case of B. Suresh (supra), inconsistent stand taken by complainant assumes significance and criminal proceeding may be quashed. judgment read thus, Paras 12, 13 & 14 of the said "12. While executing the sale deed, the appellant false or misleading herein did not make any There had also not been any representation. dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. a Admittedly, competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is acivil dispute. the matter pending before this nature, the complainant For the purpose of establishing the offence of 13. is required to show that cheating, the accused had fraudulent or dishonest intention at In a the time of making promise or representation. is permissible in law to case of considerthe stand taken by a party in a pending civil litigation. We do not,however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by it assumes significance. Had the him in a civil suit, fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale,the matter might As the deed of sale was have been different. executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the respondent would come out with complainant/first her real grievance in the written statement filed by for reasons best known to her did not choose to do so. in the aforesaid Suit. She, In this view of 14. opinion that in the facts and circumstances obtaining herein, no case has been made out for proceeding with the criminal case." the matter, we are of •' 1 • . ll.In the matter of B. Suresh (supra), the Apex Court has held that crimlinal & civil proceedings may be simultaneously initiated but the iight of inconsistent stand, criminal proceeding may be quashed. . • . 12,While dealing with same question, the Apex Court in the matter of M/s. Indian Oil (supra) has held that there is no bar in initiating or invoking criminal& civil proceedings simultaneously, Paras 10, 12 & 13 of the said judgment read thus, 11 l«''. --;i.:'~'- "•- '^, PA ^! 'L IT ,''' /''' -.€*' s»s,t"ia'"*^/ '•'•^WSy^, f •^^^^s^^ the interests of "10. While on this issue, is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression law remedies are time consuming and do that civil not adequately protect lenders/ creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal a imminent prosecution, settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. this Court observed: (2000 (2) SCC 636), likelihood of there is to be seen "It a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any courtor otherwise to secure the ends ofjustice." law, While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may. the end of prosecutions harassment

12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; the two engines of VT-NEK though removed from the aircraft, lying at Madras Airport; that the two DART arestill 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; they were fitted to another Aircraft (VT-NEH) which had been taken on lease from 'M/s. Aircraft Financing and '^ '•• 'N. /;f ';';.J^../ ,^» the removed engines), when sent Trading BV' and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of overhauling to M/s. Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control; no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint this stage, we are only concerned with the question whether the averments the ingredients of a in the complaint spell out criminal offence or not. the threshold. At The High Court was, justified in 13. rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency ofseveral civil proceedings." therefore, l3.In the present case, the alleged original owner of the property in whose name thesale deed dated 25-9-97 has been executed, has filed civil suit in the year 1998 in which it has been specifically pleaded in para 3 of the plaint that the petitioners herein entered into'conspiracy with some person and by producing fake person they succeeded in executing sale deed of the land belonging to him. Para 3 ofthe plaint reads as follows: - -a^ fsf; yf?|c|i41 ^Tffcf? 1 -l^ ??t v^ TRo f^rar 11 i^w^ 3T cT 2 ^sn- 2 c^ ft^TT yft'|c||({1 cb'Hich 3 •c^ 'cIT^t 4 cTaiT 5 ^ war 3TPTO Tf <i-|jd<|id cf?? 'Q^T ^T f^ZT T^ f^ft 3{^ srte ^i' 'cR ^K ^T 'iFil'i'd^ Rcjs^-ira ipuff 6[^' ^ p|t4lRd ?RT 'Epi^ uii'icbi'?! 'cir^t ^t •^f 11"

14.Allegation of para 3 of the plaint has been specifically denied by the petitioners. After the death of Purushottam, the alleged adopted son ofPurushottam, has filed complaint in which it has been specifically mentioned that the petitioners have committed cheating, forgery and other offences with his father, Criminal proceeding does not create any bar for taking cognizance at the instance of a person who is not directly aggrieved by the act ofthe accused persons, even otherwise, in the present case, the respondent is person who has claimed that he isthe adopted son ofdeceased Purushottam and Purushottam has executed will in his favour. The Court below has taken cognizance against the petitioners on the basis of evidence adduced on behalf of the complainant/respondent before it which is sufficient for taking taking ' cognizance, production of the time of cogriizance. At document is not sine qua non. The alleged document is subject matter of civil suit. is.The civil suit has been filed in the year 1998 within one year of the alleged execution of the document and deceased Purushottam has inception. levelled allegation of forgery & cheating in his plaint The complainant has not pleaded anything relating to cheating & forgery which has not been pleaded by deceased Purushottam. The Court below has rightly taken cognizance on the from its basis of statements of the witnesses. If the allegations made in the complaint and statements of the witnesses are admitted in their face value by the petitioners, same are sufficient for their conviction. The petitioners have utterly failed to make out a case for quashment of Even the petitioners have not criminal proceeding against alleged in their petition that as to when they made their appearance before che trial Court and after how many years of their participation proceeding they have filed this petition for interference in terms of find any scope of the criminal I do not them. quashment. Section 482 of the Code. dismissed and it The petition is, is hereby dismissed in therefore,liable to be limine with cost of Rs.5,000/-. Cost shall be paid to the respondent. Sd/- T.P. Sharma Judge ;:ioma ! ^?:s;E:ss»E8? F