Madhya Pradesh High Court
Roop Singh Alias Roopa vs The State Of Madhya Pradesh Thr on 19 July, 2017
MCRC-7553-2017
(ROOP SINGH ALIAS ROOPA Vs THE STATE OF MADHYA PRADESH THR)
19-07-2017
Shri H.K. Shukla, Advocate for applicant.
Shri G.S. Chauhan, Public Prosecutor for respondent/State.
This petition under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.268/2012 registered by Police Station Joura, District Morena for offence under Section 420 of IPC as well as for quashing the charge-sheet and further proceedings in Criminal Case No.2900169/2016.
The necessary facts for the disposal of the present application in short are that the respondent no.2-Purusottam lodged a report to the effect that on 12/5/2012 the applicant came to him alongwith one person, who was introduced as Kamlesh, and persuaded the respondent no.2 to purchase the land belonging to Kamlesh which is situated in village Chhaira, District Morena. Relying on the persuasion made by the applicant, the respondent no.2 agreed to purchase the land in question from Kamlesh for a consideration amount of Rs.49,00,000/- per Bigha and on 16/5/2012 the co-accused Kamlesh also executed an agreement to sale after receiving an amount of Rs.25,00,000/- from the respondent no.2. Later on, the respondent no.2 came to know that the applicant had brought some other person who was introduced as Kamlesh. Thus, it was alleged that by impersonation the applicant introduced some other person as Kamlesh and persuaded the respondent no.2 to purchase the land belonging to Kamlesh for a consideration amount of Rs.49,00,000/- per Bigha and not only executed an agreement to sale, but also accepted Rs.25,00,000/- by way of advance. It was further mentioned in the FIR that the applicant is absconding from his house and even the whereabouts of the person, who was introduced as Kamlesh, are also not known.
Challenging the FIR as well as the further criminal proceedings it is submitted by the counsel for the applicant that even if the entire allegations are accepted, it is clear that the dispute is of civil in nature and, therefore, it cannot be given a colour of criminal case. It is further submitted that under the provisions of the Transfer of Property Act, 1882 the purchaser is also under an obligation to remain vigilant before entering into an agreement to sale and if the respondent no.2 was not vigilant, then it cannot be said that the applicant in any manner has committed an offence. It is further submitted that as the agreement to sale was executed by another person by impersonating himself as Kamlesh, therefore, at this stage there is no evidence against the applicant to implicate him in the criminal case.
Per contra, it is submitted by the State counsel that the allegations are that it is the applicant who persuaded the complainant to purchase the land in question and made him to believe that the person with whom the applicant had come is Kamlesh and is the owner of the land in question and, therefore, it is the applicant who persuaded the respondent no.2 to enter into an agreement to sale and to make the payment of Rs.25,00,000/- by way of advance. Thus, it is submitted by the counsel for the State that in fact it is the applicant who is the mastermind and, therefore, it cannot be said that there is no evidence against the present applicant.
Heard the counsel for the parties.
It is well established principle of law that the proceedings cannot be quashed merely on the ground that some elements of civil law are also involved. In the present case, it cannot be said that it is a case of purely civil in nature. The allegations are that it is the applicant who projected somebody else as Kamlesh and persuaded the respondent no.2 to enter into an agreement to purchase the land belonging to Kamlesh and, therefore, he induced the respondent no.2 to make payment of Rs.25,00,000/- by way of advance. The Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 9 SCC 460 has held as under:-
âÂÂ27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a âÂÂcivil wrongâ with no âÂÂelement of criminalityâ and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16 These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.â The Supreme Court in the case of Indian Oil Corporation Vs. NEPC India Ltd. and others reported in (2006) 6 SCC 736 has held as under:-
âÂÂ12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar vs. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan vs Vijay Singh [(2001) 8 SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13. While on this issue, it 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 that civil law remedies are time consuming and do not adequately protect the interests of 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 prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [(2000) 2 SCC 636], this Court observed :
"It is to be seen if a matter, which is essentially of a 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 the 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 court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, 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 the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of 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.â Thus, it is clear that where the complaint discloses the criminal ingredients also, then the criminal prosecution cannot be quashed only because of the fact that civil dispute is also involved. Only a case which is predominantly of civil in nature cannot be allowed to be given the colour of criminal case.
Section 55 of the Transfer of Property Act deals with the rights and liabilities of buyer and seller. Thus, it is clear that it is the duty of the seller to disclose every material defect in the property. The Supreme Court in the case of Kamlesh Kumari Vs. State of U.P. reported in (2015) 13 SCC 689 has held as under:-
"5. The appellants moved a petition under Section 482 of Code of Criminal Procedure, 1973 (CrPC) before the High Court challenging the criminal proceedings initiated against them pleading that they are innocent and falsely implicated in the case. However, they admitted that they did had a talk regarding the sale of their land through a broker Tara Chand and they received an amount of Rs 5,00,000 as advance money. It is alleged by the appellants that in their petition before the High Court that though as per the agreement within one month remaining sale consideration was to be paid to them, but for two years they kept on waiting for the full payment. They also disclosed that in the year 2009, they have already sold the property to third party, and that is why as a counterblast the first information report was got lodged by Respondent 2 in 2011 i.e. five years after the talks were held in 2006. Further stating that the criminal proceedings are based on malice, the appellants sought quashing of the proceedings of criminal case. However, the High Court, after hearing the parties and perusal of the papers on record, declined to interfere with the trial of the case. Hence this appeal through special leave.
8. On behalf of the appellants, our attention is drawn to Ram Biraji Devi v. Umesh Kumar Singh, and it is contended that the High Court should have quashed the proceedings as the dispute between the parties is, in substance, of property dispute. We have carefully gone through the said case law and we find that the facts of the said case cannot be said to be similar to the present one. In the present case, after investigation, charge-sheet has been filed, and investigating officer has stated that an amount of Rs 42,00,000 in several instalments was paid by Respondent 2 to the appellants, which the appellants appeared to have dishonestly retained with them. From the rejoinder-affidavit, it appears that the appellants have repaid only Rs 5,00,000 to Respondent 2 through two bank drafts mentioned above, that too after charge-sheet is filed. In such a situation, we cannot apply the law laid down in Ram Biraji Devi to the case at hand.
9. In R. Kalyani v. Janak C. Mehta, in paras 15-16, this Court, interpreting the inherent powers of the High Court under Section 482 CrPC, has laid down the law as under: (SCC p. 523) âÂÂ15. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegtions made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
16. It is furthermore well known that no hard-
and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.â Thus, merely because an agreement to sale was executed between the parties and the seller subsequently failed to keep his promise may not be a circumstance giving rise to criminal case, but where the seller for one reason or the other fails to execute the agreement to sale as well as does not offer repayment of advance which he has received, then it may prima facie establish that non- execution of the sale deed was not bonafide, but the agreement to sale was executed with an intention to extract money from the intending purchaser and the seller right from day one had the intention to cheat the intending purchaser. In the present case the facts are worst. In this case it is alleged by the respondent no.2 that the applicant by impersonating some other person as Kamlesh had persuaded him to purchase the property belonging to Kamlesh and not only entered into an agreement to sale, but also received an amount of Rs.25,00,000/- by way of advance. Thus, under these circumstances, by no stretch of imagination it can be said that the case is predominantly of civil in nature.
No other argument is advanced by the counsel for the applicant. This Court does not find it to be a fit case for quashing the FIR or the charge-sheet or the criminal case pending against the applicant. Accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Arun*