AT CHANDIGARH CRM M-4065 of 2010 (O&M) Date of Decision: September 25 & Anr. v. State of Punjab & Anr.

Jindal, Smt. Rali Devi, the first wife of Sadhu Singh and a daughter namely CRM M-4065 of 2010 (O&M) 3 Ram Murti. The father of respondent no.2 performed marriage with petitioner no.1, after the demise of his earlier wife. Out of second wedlock, respondent no.2 and his sister were born. However, due to the illicit relations between the petitioners, there were matrimonial discords between the parents of respondent no.2. Even many instances have been quoted in the FIR when the petitioners used to meet secretly during life-time of father of respondent no.2. It is also alleged that all of sudden, the father of respondent no.2 started vomiting and felt pain in chest, after he had tea given to him by petitioner no.1 and thereafter, blood started coming out of the mouth of father of respondent no.2. It is, thus, alleged by respondent no.2 that petitioners have killed his father. It is also alleged in the FIR that father of respondent no.2 was taken to Rajindra Hospital, but his body was brought back without any post mortem. It is alleged that complainant- respondent no.2 was locked in a room as he was weeping and disclosing that the above said persons had committed the murder of his father. When petitioners came to know that a Will dated 24.07.1986 had been executed by father of respondent no.2 in favour of respondent No.2, then they stopped his studies and started misusing his property and waited for attaining his majority and took signatures on the blank papers and the cheques. In this regard, petitioners with the help of Rajinder Jindal, Gian Jindal and others withdrew the FDRs of respondent no.2 and other money deposited was also grabbed by them. In all these illegal acts, Rajinder Jindal used to complete the paper works. With the funds of respondent no.2, mother purchased a Kothi at Bhadson road and a plot at Dashmesh Nagar, Patiala and also purchased property at Haridwar. Petitioner no.1 also purchased other CRM M-4065 of 2010 (O&M) 4 properties from the funds of respondent no.2. Respondent No.2-complainant was allegedly deprived of Santro Car and was later expelled as partner from firm Bali Ram Sadhu Ram where he was partner. The petitioners also gave threats to respondent no.2 and his wife. Respondent no.2 asked petitioner no.2 not to visit their house but instead the mother started residing with petitioner no.2 at Kothi No.4, North Avenue, Bhadson road. In this entire episode, wife of petitioner no.2 is also involved. The accused in conspiracy with the others, by giving impression that they will return the documents, called respondent no.2 at their residence on 03.08.2002 and gave beatings to respondent no.2 and his wife and threatened that in case they demanded papers in future, they would be taught a lesson. The matter was got compromised. It is also alleged in the FIR that the Will was executed by the father of respondent no.2 as he had fear of his life from the petitioners. And because there were illicit relations between the petitioners, petitioner no.1 was not appointed as guardian, instead Sant Ram and Gian Chand were appointed as guardian. When respondent no.2 questioned his mother, then she filed a civil suit against him. Due to pressure by petitioner no.1, respondent no.2/complainant paid Rs.80,000/ to petitioner no. 2 for vacation of house. There are specific allegations against the petitioners and others of getting signature of respondent no.2 on blank papers. There are various allegations of forgery in writing of will and obtaining signature of Bachna Ram on blank paper also. There are allegation of coercion also. DSP inquired into the complaint and after obtaining legal opinion, FIR has been registered. Respondent no. 1 filed reply and has submitted that case has CRM M-4065 of 2010 (O&M) 5 been investigated and after investigation report under section 173 of the Code of criminal procedure has been submitted to the court. On 16.03.1991 petitioner no.1 purchased a plot at Haridwar showing herself as wife of petitioner no.2 . In other sale deed she has represented herself as wife of petitioner No.2. Petitioners also filed writ petition seeking protection from police and also approached Human Rights Commission Punjab. Respondent no. 2 filed separate reply and has submitted that disputed questions of fact and law arise in the present case. Averments in the petition are factually incorrect. The petitioner No.2 in connivance with the petitioner no.1 hatched systematic conspiracy to deprive respondent no.2 of all assets and they have committed the offence of cheating and fraud. Taking the advantage of the minority of the complainant the petitioner no. 2 prevailed upon the petitioner no.1 and fraudulently deprived the respondent no. 2 of his immoveable and moveable properties. All the properties had been inherited by respondent no.2 on the basis of will dated 24.07.1986. After the death of Sadhu Ram, respondent no.2 became partner in firm Bali Ram Sadhu Ram, however, he was made to retire and petitioner no.1 became partner in the said firm. The two gift deeds were shown to be allegedly signed by respondent No.2. Petitioner no.1 had submitted false affidavit and grabbed all the golden ornaments. During investigation it has come that the petitioners had fraudulently and forcibly taken signatures of respondent no.2 on cheques and withdrew Rs. 11,10,000/- illegally. Many instances have been mentioned in the reply by respondent no.2. The offence of cheating by using forged documents and submitting the same with the various authorities and using the said forged documents as genuine in order CRM M-4065 of 2010 (O&M) 6 to claim themselves to be the partner of the firm has been committed. It is also alleged that they also committed offence of falsification of documents. On the basis of the aforesaid complaint, aforesaid FIR for offences under Sections 120B/420/464/467/468/471 IPC was registered against the petitioners. Despite the fact that the FIR has been registered four years, the investigation could not be completed expeditiously. Now, although final report has been filed in Court, the framing of charge has been stayed by this Court. I have heard the learned counsel for the parties and gone through the record. Before taking up the grounds, which have been urged by the learned counsel for the petitioners for quashing of the FIR, it would be appropriate to refer to the law regarding quashing of an FIR, which is no more res integra. Hon’ble Supreme Court in the case titled State of Haryana & Ors. Vs. Bhajan Lal & Ors. AIR 1992 SC 604, after reviewing the entire case law on the subject of quashing of FIR or the complaint, has observed that there are seven illustrative contingencies in which the FIR or complaint may be quashed by the High Court in exercise of its extra ordinary power under Article 226 of the Constitution of India or inherent power under Section 482 Cr.P.C., and a note of caution has also been struck that the power to quash the FIR must be used sparingly. The Courts should refrain from going into the arena of disputed questions of fact and leave it to the trial Court credit worthiness of the witnesses or the evidence which the parties may like to produce during the course of trial. The decision rendered in Bhajan lal’s case (Supra) holds the field till date CRM M-4065 of 2010 (O&M) 7 without any substantial change, relevant paragraph No 108 reads as under: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have been extracted and reproduces above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the processes of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a CRM M-4065 of 2010 (O&M) 8 non-cognizable offence, no investigation is,permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and /or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Further, a note of caution had also been struck in the following words: “We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise to the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” It may also be pertinent to mention here that Supreme Court in CRM M-4065 of 2010 (O&M) 9 State of Bihar Vs. Murad Ali AIR 1989 SC 1 has held as follows: “It is trite that jurisdiction under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice, has to be excised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not that is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not.” In Municipal Corporation of Delhi Vs. R. K. Rohtagi, AIR 1983 SC 67 at P. 70 it is reiterated: “It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section CRM M-4065 of 2010 (O&M) 10 482 of the present Code.” In Municipal Corporation of Delhi Vs. P.D. Jhunjunwala AIR 1983 SC 158 at page 159, it was further made clear: “…… As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.” Thus, as per the settled position of law the power under Section 482 Cr.P.C. has to be exercised very sparingly and while doing so the court has to look at the contents of the FIR/allegations and the investigation reports i.e. the status reports in this case, whether they lead to the inference of the fact that any offence has been committed or not. That the main grounds and arguments raised by the petitioners, for quashing of the FIR in question, are as under:- (i) According to the facts of the case. No case under Sections 120B/ 420/464/467/468/471/477A IPC is made out. (ii) FIR is liable to be quashed on the ground of malafide of respondent No 2, the complainant. (iii) Matter is of civil nature and has been converted into a criminal dispute. (iv) There is delay of 17 years in lodging the FIR from the alleged date of inducement /cheating etc. So far as the first argument is concerned that no case under Section 420/464/467/468/471/477A/120B IPC is made out, the only thing to be seen is whether from the plain reading of the FIR, a case of cheating and CRM M-4065 of 2010 (O&M) 11 fraud, using fraudulently prepared documents as genuine and falsification of the accounts and taking away gold ornament, is made out or not. The second and third arguments, which pertain to the allegations of malafide and the dispute being of a civil nature, are overlapping the first one, so all of them are being dealt with together. Suffice it would be to mention here that a plain reading of the said FIR makes it clear that there is definite allegation against the petitioners that they fraudulently prepared papers for retiring respondent no.2 from the firm Bali Ram Sadhu Ram, If this is prima facie accepted to be correct, then obviously a case for cheating under Section 420 IPC, for forging documents and using forged documents as genuine punishable under Section 468/471 IPC, is made out. I have purposely not dealt with the entire FIR in extenso because a plain reading of FIR itself makes out a prima facie case for registration of a cognizable offence which has been done in the instant case after inquiry by DSP and getting opinion from District Attorney. In Bhajan Lal’s case (supra), one of the illustrative grounds enunciated for quashing of the FIR is that if a plain reading of the FIR or the complaint does not make out a prima facie case against the accused persons, then only the FIR can be quashed. Certainly, in the instant case from reading of the FIR such a view cannot be taken. The learned counsel for the petitioners has submitted that no offence of cheating, forgery and fraud is made out. Reading of FIR clearly indicates dishonest intention on the part of petitioners. In a case of cheating and fraud appreciation of evidence stage CRM M-4065 of 2010 (O&M) 12 obviously arises after the parties have adduced evidence while as in the instant case only an FIR has been registered and charge sheet has been presented in court so far. The learned counsel for the petitioners has also contended that the petitioners have been subjected to needless harassment and the criminal proceedings are being used as an engine of oppression. It is also contended that the dispute between the parties is essentially a civil dispute, which has been sought to be converted into a criminal dispute. For this purpose, the petitioners have relied upon the following judgments: M/s Indian Oil Corporation Vs. NEPC India Ltd. & Ors. AIR 2006 SC 2780, Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., AIR 2008 SC 251. I have gone through these authorities, there is no dispute about the proposition of law laid down by the Hon'ble Supreme Court in Indian Oil Corporation and Inder Mohan Goswami’s cases (supra) that of late, there has been a tendency on the part of the litigants to convert a dispute which is essentially civil in nature into a criminal dispute, to make the other party to submit to the dictates of the complainant. In all such cases, the Courts have in exercise of its powers under Section 482 Cr.P.C. or under Article 226 & 227 of the Constitution, granted the relief to the accused persons either by setting aside the order of summoning or quashing the FIR itself. In Indian Oil Corporation’s case (supra) aircrafts had been mortgaged while as in Inder Mohan Goswami’s case (supra) loan was taken and post-dated cheques were issued. The moot question which arises for consideration is whether CRM M-4065 of 2010 (O&M) 13 aforesaid proposition of law fits into the facts of the present case or not. The learned counsel for the petitioners has argued that civil proceeding should not be converted into an offence of cheating, as there was no dishonest intention on the part of the accused in those cases at the time of entering into the transaction, to either cause wrongful gain to themselves or to cause wrongful loss to the respondent no.2 / complainant in FIR, which are essential ingredients of the offence of cheating. But I do not feel that any of these authorities is applicable to the facts of the present case for the simple reason that facts of neither of the cases are similar to the case at hand. The learned counsel for the petitioners failed to take note that the Hon’ble Supreme Court in catena of judgments has held that the proposition of law laid down in a given case should not be applied like theorems to the case, which is sought to be decided. It has been observed that one single change of fact may be of a vital importance, to make a distinction between the two cases, such that the proposition of law which has been enunciated by Hon’ble Supreme Court or by the High Court may make it distinguishable from the reported case. See Haryana Financial Corporation vs. Jagdamba Oil Mills AIR 2002 SC 834. Now looking to the facts of the present case, the respondent no. 2 has made a definite averment that his father had executed a Will in his favour of all his immovable, moveable properties, bank accounts and lockers etc and complainant / respondent no.2 was minor at the time of death of his father. Sadhu Ram, his father had lot of properties and was also the partner of the firm. The firm owned valuable chunk of immovable and movable properties. On the basis of the Will respondent no.2 had inherited CRM M-4065 of 2010 (O&M) 14 properties and became partner in the firm. The petitioners allegedly by taking advantage of the minority of respondent no.2 prepared various documents by fraudulently getting his signatures on blank papers allegedly to deprive and divest the complainant/respondent no.2 of the control of the assets of the Sadhu Ram (deceased) and the firm. Obviously, there was a dishonest intention at the time when the acts are purported to have been done by the petitioners, in as much as, they wanted to cause wrongful gain to themselves and the wrongful loss to the complainant. Merely because certain previous litigation between the parties is pending in civil courts, does not preclude a complainant from registering a criminal offence against the offender, when case is made out. This has also been observed by the Hon’ble Supreme Court in Indian Oil Corporation’s case (Supra) wherein it was held that merely because civil disputes exist between the parties; this does not mean that a criminal offence cannot be registered. Therefore, I feel that although the judgment with regard to the proposition of law that the FIR may be quashed, in case there is purely a civil dispute, cannot be found at fault with, but it can by no stretch of imagination be said that in the instant case the dispute between the petitioners and the complainant is essentially a civil dispute which may warrant quashing of the FIR. The learned counsel for the petitioners has failed explain to how this court can appreciate disputed facts when present case is at the threshold itself and evidence is yet to be adduced. It will not be out of place to mention here that the very registration of the FIR in the instant case immediately activated the petitioners to file petitions in the year 2008 itself and obtain a restraint order CRM M-4065 of 2010 (O&M) 15 that the police shall not take any coercive action against them for the purpose of investigation, followed by a writ petition in 2008 wherein also they made a similar prayer. For this purpose Annexure P-5 to P-8 are relevant. I am of the opinion that there is no merit in this contention of the learned counsel for the petitioners that no case under Section 420/ 464/467/468/471 IPC is made out, therefore the FIR is liable to be quashed. Another argument which has been raised by the learned counsel for the petitioners is the allegations of mala fides against the complainant to implicate the petitioners in a false case. The sum and substance of this contention is that complainant fraudulently represented the documetns as forged before authorities but rather documents are validly executed after his attaining majority. The complainant is alleged to be presently aged around 32 years, at the time of death of the Sadhu Ram, was about 11 years old and hence by no stretch of imagination he could be deprived of becoming the partner in firm when he had purported to have become so. Similarly by giving false affidavit locker and bank accounts were operated. In a clandestine and systematic manner complainant was deprived of various properties moveable and immoveable. Petitioner No 1 got the properties gifted in her name from the complainant using her fiduciary relation and pressure over the complainant . No mother can be expected to depriving her son of the properties , all this appears to have been done by petitioner no.1 under the pressure of petitioner no.2 as he was in a dominating position. It may be pertinent to mention here that the Hon'ble Supreme CRM M-4065 of 2010 (O&M) 16 Court in State of Bihar Vs. P. P. Sharma AIR 1991 SC 1106 has observed that allegations of mala fides are very easy to make but very difficult to prima facie establish. A very heavy onus has to be discharged by the petitioners in this regard. But in the instant case, the instances which the petitioners are relying upon by way of allegations of mala fides, to prove the falsification against them, essentially constitutes their defence and it will have to be proved by the petitioners during the course of the trial by adducing evidence to that effect. It cannot be said , at this stage that what is being stated by either of the parties, especially by the petitioners, is a gospel truth and by putting reliance upon the same, the FIR deserves to be quashed. As a matter of fact, the entire effort of the petitioners has been to convert the jurisdiction of the High Court under Section 482 Cr.P.C., into the jurisdiction of a trial Court and return a finding of a fact that the allegations against them are false. Once a party says that allegations levelled against him are false, it obviously warrants adducing evidence by both the parties before the Trial Court and the adjudication thereof by the Trial Court to return a finding as to whether this is correct or not. The filing of charge sheet U/s 420,464, 467,468,471 and 120B IPC against the above named accused is proved. It is also mentioned in the charge sheet that all the accused are guilty of criminal conspiracy and cheating with an intention of sale and purchase the assets of the respondent No. 2 through cheating and fraudulent documents. Next argument of the learned counsel for the petitioner for quashing the FIR is inordinate delay. It is made clear that no proposition of law can be formulated to quash criminal proceedings on the ground of CRM M-4065 of 2010 (O&M) 17 alleged inordinate delay. For quashing a criminal proceeding by exercising the powers of the court under Section 482 of the Code of Criminal Procedure 1973, the court must exercise its power sparingly and also with circumspection and that too in rarest of rare cases. The power conferred on the courts under Section 482 of the Cr.P.C. cannot be invoked mechanically and further the inherent power mentioned in the said section should not be used to stifle a legitimate prosecution. So far as the initiation of criminal proceedings is concerned it is governed by the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). Section 468 thereof puts an embargo on the court to take cognizance of an offence after expiry of limitation provided therein. However, there is no limitation prescribed for an offence punishable with more than 3 years imprisonment. Section 469 declares as to when the period of limitation would start. Sections 470,471 provide for exclusion of period of limitation in certain cases. Section 473 enables the court to condone the delay provided the court is satisfied with the explanation furnished by the prosecution or where the interest of justice demands extension of the period of limitation. The Hon'ble Supreme Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762, dealt with the issue and observed as under: “14. The general rule of criminal justice is that a crime never dies. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders) ……. It is settled law that a criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. CRM M-4065 of 2010 (O&M) 18 Normally, in serious offences, prosecution is launched by the State and a Court of Law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict.” In view of the above provisions and settled law that delay cannot be treated as ground for quashing the FIR, this contention of the learned counsel for the petitioners also fails and is declined. On a conspectus of the factual scenario, prima facie, the chargesheet does disclose commission of offences by the petitioners under ss. 120B, 420, 464,467, 468 and 471 of IPC. More than sufficient circumstances exist suggesting the hatching of criminal conspiracy and forgery of several documents leading to commission of the aforementioned offences. Having regard to the modus operandi adopted by the accused, as projected in the chargesheet, it is clear that it is not a fit case for exercise of jurisdiction by this Court under S.482 Cr.P.C. In the light of discussion above, I am of the view that there is no merit in the contentions of the learned counsel for the petitioners, and accordingly, the contentions are without any merit and petition is, hereby, dismissed and the interim order stands vacated. September 25, 2012 [Paramjeet Singh] Judge