Rajasthan High Court - Jaipur
Anand Kumar Jain And Anr vs State Of Raj Asthan Through Pp on 30 May, 2012
S. B. Criminal Misc. Petition No. 324 of 2011 Anand Kumar Jain and anr. vs. State of Raj. and anr. ---- Order reserved on : May 23, 2012 Date of pronouncement : May 30 , 2012 REPORTABLE HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. A.K.Gupta, for the petitioners
Mr. Peeyush Kumar, PP for the State Mr. Anurag Sharma for the complainant.
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This criminal misc. petition has been filed by the petitioners under section 482 Cr.P.C. for quashing the FIR No. 330 of 2010 dated 7.6.2010 registered at Police Station Nayapura, Kota City, registered for the offence under sections 467, 468, 469, 470, 471, 120 B IPC, and 420 IPC on the complaint sent by the court under section 156 (3) Cr.P.C.
2. The brief facts of the case are that late Gore Lal, late Babu Lal, late Munshi lal, late Bheru lal sons of Kishan Lal by caste Koli, resident of Shreepura, Kota jointly owned Khasra Nos. 1075, 1076, 1077, 1078, 1079, 1080, 1080 (in all 7 Khasras) measuring 2.01 Hectare, which comes to 18 Bighas situated in village Deoli-arab, Tehsil Ladpura, District Kota, and Khasra Nos. 883 and 885 situated in village Tekhada, Tehsil Ladpura, District Kota. Since all the four persons were aged, they jointly executed will in favour of Badam Singh petitioner No.2 on 14.7.1992. All the four persons Gore Lal, Babu Lal, Munshi Lal, Bheru Lal sons of Kishan Lal, who had executed the will all expired one after the other. After 3.11.2007 the will became effective and Badam Singh petitioner No.2 became the only owner of the land in pursuance to the will. It is alleged in the petition that the petitioner No.2 has been in possession of the land and the land is still in his possession. It is stated in the petition that the petitioner No.2 got a notice published on 5.12.2009 in Rajathan Patrika that he has become owner of the land jointly owned by Gore Lal, Babu Lal, Munshi Lal, Bheru Lal sons of Kishan Lal, by virtue of will dated 14.7.1992 and nobody have any right to sell the land covered under will. The petitioner No.2 Badam Singh came to know that the land owned by him is being sold by the sons of all the four executor of will, vide sale deed dated 7.10.2009 to Smt. Kiran wife of Suresh Kumar and Smt. Sunita Devi wife of Ram Kumar. The petitioner No.2 Badam Singh came to know that on the basis of sale deed dated 7.10.2009 Smt. Kiran wife of Suresh Kumar and Smt. Sunita Devi wife of Ram Kumar, are planning to sale further land the petitioner No.2 Badam Singh has been threatened of dispossession. In view of this petitioner No.2 Badam Singh filed suit of declaration and permanent injunction against Devendra Kumar complainant and other 41 persons for cancellation of sale deed dated 7.10.2009 in the Court of District Judge, Kota and the same is pending there which has been now transferred to Additional District Judge No.4 Kota and registered as case No. 3/2010 Badam Singh vs. Devendra Kumar. Similarly Badam Singh also filed a suit against Urmila Bai wife of late Anoop Kumar, Lucky son of Anoop Kumar, Guddi, daughter of Anoop Kumar and Satyanarain Verma for declaration and permanent injunction of cancellation of sale deed dated 30.10.2009, which is registered as Suit No. 4/2010 pending before the Additional District Judge No.4 Kota City. A similar suit was also filed against Urmila and others for declaration and cancellation of sale deed dated 30.10.2009, which is registered as Suit No. 5/2010. The respondent- complainant and other defendants filed reply to the application for temporary injunction. A suit was also filed by the petitioner Badam Singh along with temporary injunction application which was registered as Civil Misc. Case No. 6/2010. Reply to this temporary injunction application was also filed by the respondent complaint. The respondent complainant Devendra filed a complaint under sections 467, 468, 471, 120 B IPC and 420 IPC on 7.6.2010 against the petitioners in the court of ACJM (Riots) Court Kota. The court forwarded the complaint for inquiry under section 156 (3) Cr.P.C. on which FIR No. 330 of 2010 dated 7.6.2010 has been registered. Along with the criminal misc. petitions the petitioners filed certified copies of the documents as mentioned above. The respondent No.2 filed application for vacation of the exparte interim order on 7.4.2011. Alongwith the application he has filed the copy of the civil suit filed by Gorelal, Babulal, Munshi Lal and Bherulal in the court of Civil Judge, Kota in the year 1984(Annexure R-1) and the opinion of the handwriting and fingerprint expert dated June 16, 2010. It was stated that the signatures made on alleged will are forged and in order to arrive at a just and proper conclusion, it is expedient in the interest of justice that the original document i.e. alleged will may be sent for opinion of the handwriting expert of Forensic Science Laboratory Jaipur. It was also prayed that the interim order may be vacated. On May 20, 2011 the petitioners filed reply to the misc. application filed by the respondent No.2 Devendra Kumar for vacation of stay dated 7.4.2011. Along with the application the petitioners filed copy of the power of attorney, will and the opinion of Forensic Expert dated 11.4.2011. On March 1, 2012 the petitioners filed application for amending the misc. petition. Thereafter the petitioners filed application under section 482 Cr.P.C. for taking on record the documents filed by Harish Kumar s/o Gorelal @ Gorilal in Civil Suit No. 3/10 pending before the Additional District Judge No.4 Kota. The respondent No.2 filed reply to the application filed by the petitioners for amending the misc. petition. The petitioners thereafter on May 15, 2012 filed further application for taking documents on record.
3. The learned counsel for the petitioners submits that the filing of FIR is simply an abuse of the process of court and will result in the serious miscarriage of justice to the petitioners. It has been argued that once the document is filed in the court the same became the document of the court and any pursuing fabrication or mis-statement is found then only court can file the FIR. It is not open to the defendant and in the court is not open to the respondent complaint who is defendant in the civil suit to file a complaint of pursuing for the document of the court. The filing of the complaint converted into FIR is nothing but tactics to bring pressure on the petitioners and to all of them, if investigation is allowed on the basis of the FIR. It is also submitted that the document clearly borns out that it is purely civil dispute which is being given colour of criminal by using the criminal law. No FIR was lodged directly and a complaint was filed in which it was prayed that matter may be referred to police for inquiry. There is no averment in the complaint that police is not registering the FIR. The Cr.P.C. has provided the measures to be taken even if the SHO of the police station concerned refuses or neglect to register the FIR. No such effort has been made by the respondent complainant and as such a complaint itself was not entertainable by the court. The ingredients of the offence are not made out. The petitioner No.2 inherited the property in pursuance to the will of which the public notice was also given by way of publication in the newspaper. The FIR is not worth registration and investigation thereon. Lastly it was prayed that the FIR may be quashed to prevent the abuse of the process of the court. Mr. A.K. Gupta, learned counsel for the petitioners placed reliance on various decisions of the Apex Court Ram Chandra and another vs. State of U.P. (AIR 1957 SC 381) The State ( Delhi Administration vs. Pall Ram ( AIR 1979 SC 14 ), Ishwari Prasad Misra vs. Mohammad Isa ( AIR 1963 SC 1728), the State of Gujrat vs. Vinaya Chandra Chhota Lal Pathi (AIR 1967 SC 778) on the points of Hand writing Expert. On the point of forgery questioning FIR G. Sagar Suri and another vs. State of U.P. ( AIR 2000 SC 754 Zandu Pharmaceutical Works Ltd. and ors. vs. Md. Sharaful Haque and others (2005) 1 SCC 122, Inder Mohan Goswami and anr., vs. State of Uttaranchal and others (JT 2007 (11) SC 499 (AIR 2008 SC 251), Joseph Salvaraj A. vs. State of Gujrat and others (2011 ) 7 SCC 59, M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and others (AIR 2006 SC 2780 (1), and State of Haryana and others vs. Ch. Bhajan Lal and others (AIR 1992 SC 604, and on the unimpeachable document reliance has been placed on State of Orissa vs. Devendra Nath Padhi (2005) 1 SCC 568, Suryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. and others (AIR 2008 SC 1683), Anita Malhotra vs. Apparel Export Promotion Council and anr. (2012) 1 SCC 520, Pashaura Singh vs. State of Punjab and another (2009 AIR SCW 7226).
4. On the other hand Mr. Anurag Sharma, learend counsel appearing for the complainant and Mr. Peeyush, Public Prtosecutor appearing for the State have argued that it is not the stage of quashing the FIR registered at the Police Station Nayapura Kota on the complaint sent by the concerned court under section 156 (3) Cr.P.C. for investigation. The nature of the dispute whether it is civil or criminal can only be decided during investigation by the police and it is an admitted fact that the document sent to the FSL for examination of the signatures of the deceased four persons to whom the accused petitioners is claiming that they have given the land in question to him on a will. Forgery appears to have been done as the signatures on the will are not of the deceased persons. They have further argued that the cases cited by the learned counsel for the petitioners in this case are not applicable to the facts of this case. They have placed reliance on Narender G. Goel vs. State of Maharashtra and another (2009 ) 6 SCC 65.
5. I have heard the learned counsel for the parties.
6. Before proceeding further it would be necessary to have a look at the rulings cited by the learned counsel for the parties.
The Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, held as under :
21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge.
29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case 1992 Supp (1) SCC 335.
The Apex Court in Bhajan Lal's case (AIR 1992 SC 604) enunciated the following principles, which are as under :
(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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a 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 FIR do not constitute a cognizable offence but constitute only a 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 Act concerned (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 Act concerned, 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 proceeding is 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.
The Apex Court in Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited, (2008) 13 SCC 678, held as under :
20. We may also place on record that criminal proceedings should not be encouraged when it is found to be mala fide or otherwise abuse of process of court.
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.
The Apex court in Anita Malhotra v. Apparel Export Promotion Council,(2012) 1 SCC 520, held as under :
22. This Court has repeatedly held that in case of a Director, the complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused company for conduct of its business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient. (Vide National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal7.) In the case on hand, particularly, in Para 4 of the complaint, except the mere bald and cursory statement with regard to the appellant, the complainant has not specified her role in the day-to-day affairs of the Company. We have verified the averments as regards to the same and we agree with the contention of Mr Akhil Sibal that except reproduction of the statutory requirements the complainant has not specified or elaborated the role of the appellant in the day-to-day affairs of the Company. On this ground also, the appellant is entitled to succeed.
23. In the light of the above discussion and of the fact that the appellant has established that she had resigned from the Company as a Director in 1998, well before the relevant date, namely, in the year 2004, when the cheques were issued, the High Court, in the light of the acceptable materials such as the certified copy of the annual return dated 30-9-1999 and Form 32 ought to have exercised its jurisdiction under Section 482 and quashed the criminal proceedings. We are unable to accept the reasoning of the High Court and we are satisfied that the appellant has made out a case for quashing the criminal proceedings. Consequently, Criminal Complaint No. 993/1 of 2005 on the file of ACMM, New Delhi, insofar as the appellant herein (A-3) is concerned, is quashed and the appeal is allowed.
The Apex Court in Pashaura Singh v. State of Punjab, (2010) 11 SCC 749 held as under :
7. Having heard the learned counsel for the parties and upon careful perusal of the materials placed before us, in our judgment, the order of the High Court cannot be sustained for more than one reason. In the first place, the High Court gravely erred in observing that Pashaura Singh married second time on 2-1-2002 while he was already married with Kamaljeet Kaur and the aforesaid marriage has not been dissolved.
8. The certificate of divorce dated 26-2-2001 issued by the New Westminster Registry, the Supreme Court of British Columbia shows that the marriage of Pashaura Singh and Kamaljeet Kaur stood dissolved on 8-2-2001. As a matter of fact, this fact is noticed in the order dated 29-4-2004 whereby the High Court quashed FIR No. 9 and the subsequent criminal proceedings against the family members of Pashaura Singh.
9. In the affidavit filed by Gurmail Singh, Deputy Superintendent of Police in response to the petition filed by the appellant under Section 482 before the High Court, it has been admitted that during investigation on 14-3-2002 Hakam Singh had produced photocopy of divorce certificate purporting to have been issued by the Supreme Court of British Columbia. The observation of the High Court, thus, that Pashaura Singh married second time, although his marriage has not been dissolved, is ex facie contrary to record.
10. Section 494 IPC, inter alia, requires the following ingredients to be satisfied, namely, (i) the accused must have contracted first marriage; (ii) he must have married again; (iii) the first marriage must be subsisting; and (iv) the spouse must be living. Insofar as the present case is concerned the appellant's marriage with Kamaljeet Kaur was not subsisting on 2-1-2002 when he is said to have married second time.
13. We have no hesitation in holding that the first information report lodged by Balwant Singh is manifestly attended with mala fides and actuated with ulterior motive. The prosecution of the appellant is not at all legitimate, rather it is frivolous, vexatious, unwarranted and abuse of process. The appellant has made out a case for quashing the first information report and all subsequent proceedings pursuant thereto.
14. For the reasons indicated above, the appeal is allowed and the order dated 24-5-2006 passed by the High Court of Punjab and Haryana is set aside. Resultantly, FIR No. 9 dated 21-1-2002 registered at Police Station Sehna and all subsequent proceedings pursuant thereto stand quashed and set aside. The pending applications stand disposed of.
The Apex Court in G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, held as under :
8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. 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.
The Apex Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122, held as under :
8. Exercise of power under Section 482 of the Code in a case of this 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 possessed before the enactment of the Code. It envisages three 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 of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative 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 recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex 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 section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the 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 produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 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 offence is made out even if the allegations are accepted in toto.
11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal2.
As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
......... It is the material collected during the investigation and evidence led in court which decides the fate of the accused person.
The Apex Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, held as under :
23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(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 of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.
27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
The Apex Court in Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59, held as under :
16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.
17. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra v. State of U.P.1, relevant part thereof is reproduced hereinbelow: (SCC p. 505, para 27)
27. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.
.......The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the FIR, which discloses only a civil dispute.
19. The appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years, even when admittedly a civil suit has already been filed against the appellant and Respondent 4 complainant, and is still sub judice. In the said suit, the appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by the trial court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the appellant and Respondent 4 complainant. There was no cause of action to even lodge an FIR against the appellant as neither the complainant had to receive the money nor was he in any way instrumental to telecast GOD TV in certain areas of Ahmedabad. He appears to be totally a stranger to the same. The appellant's prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.
The Apex Court in Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, held as under :
16. 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; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted into another aircraft (VT-NEH) which had been taken on lease from M/s Aircraft Financing and 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 into VT-NEJ (in places of the removed engines), when sent for overhauling to M/s Hunting Aeromotive, UK, 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 at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.
17. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings.
The Apex Court in Narender G. Goel v. State of Maharashtra, (2009) 6 SCC 65, held as under :
6. The Court after considering the various submissions directed the investigating agency to get the material collected in the course of investigation examined in Canada. It is noted that it will take some time and therefore the trial court would wait for such a report which will be part of the medical and forensic investigation which can be filed in the trial court under Section 173(8) of the Code.
7. The basic stand of the appellants is that the High Court has not kept in view the parameters of Section 166-A of the Code. It is submitted that some evidence which is already in existence but in a country outside India can be collected. But for that purpose (1) an application is required to be made by the prosecution before the competent court of law i.e. the court which is seized of the matter;
(2) the application shall be for collecting the evidence and not for creating the evidence; and (3) on such application being allowed, an appropriate request by way of letter of authority from the competent court of law to the court of law or authority concerned where such evidence is available has to be made.
11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.1 this Court observed: (SCC p. 743, para 11)
11. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.
12. The accused can certainly avail himself of an opportunity to cross-examine and/or otherwise controvert the authenticity, admissibility or legal significance of material evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code.
13. We are of the view that what is the evidentiary value can be tested during the trial. At this juncture it would not be proper to interfere in the matter.
7. Admittedly in the instant matter the Judicial Magistrate forwarded the complaint filed by the complainant respondent to the Police under section 156 (3) Cr.P.C. and after finding it prima facie that case is made out the police registered the FIR and started investigating in the matter. This court on 19.5.2011 passed the following order:
????? ?????? ?? ??????? ?????????? ?? ??? ?? ????? ??? ?????? ?? ?????? ????? ????? ?? ?????? ???? ?? ?????? ?? ???????? ?? ???? ?????? 9/2/2011 ?? ?????????? ?????? ???? ???? ?? ?? ????? ?? ?????? ??? ????? ???????? ???? ?? ???? ????????? ????, ???? ????? ????? ????? ?? ???????? ?? ??????? ???? ???? ??????? ?????? ??? ?? ??????? ???? ???? ?? ?? ?????????? ?????? ?? ???????? ?? ????? ?????? ?????? ? ????? ?????? ??? ???? ???? ?? ????? ??????? ????? ?? ??? ??? ???????? ????? ?????? ??? ???? ?? ????? ?? ???? ?? ?? ?????? ?? ???????? ??????? ??? ????? ?????? ????? ???? ?? ??????? ???????? ?????????? ?????? ?????? ??? ???? ???? ?? ?? ?????????? ??????? ?? ?? ??????????? ???? ?? ?? ?? ???????? ?????? ???????? ?? ????? ??? ???? ?? ???? ?? ?????? ???? ???? ?????? ?? ??????
???? ?????? ?? ???????? ?? ???? ?????? 9/2/2011 ?? ?????? ???? ??? ?????????? ??????? ?? ?? ?? ?????? ???? ????? ????????? ???? ???? ??? ?????? 18 ????? 2011 ?? ???????? ?? ????? ??????? ??? ??????? ?? ????????? ???? ???? ?? ?? ?? ??? ???????? ?? ?????? ?????? ?? ????? ????? ?? ???????? ??? ??? ???????
This court on 18.7.2011 directed the investigating officer to remain present before this court on 27.7.2011 along with case diary and progress report. This court on 27.7.2011 passed the following order :
Taking into consideration over all facts and circumstances of the case, it appears just and proper to direct the court of Additional District Judge No.4 Kota to hand over the original will to the Investigating Officer for getting it examined from Forensic Science Laboratory.
The Investigating officer is expected to obtain the document from the court of Additional District Judge No.4 Kota and get the report from the Forensic Science laboratory before the next dated.
So far as arrest of the petitioners is concerned, that had already been stayed by this court and they are protected. So far as the arrest is concerned, the Investigating Officer will be at liberty to investigate the case by calling the petitioners as and when needed.
List on 5.9.2011 On 5.9.2011 this court granted two weeks time to the Public Prosecutor to place on record the FSL report. This court on 15.2.2012 passed the following order :
Mr. Rinesh Gupta, cousnel appearing on behalf of Mr. A.K. Gupta ha requested this court that Mr. A.K. Gupta has appeared yesterday only. The matter may be adjourned for a week. Although the IO is present in person and he has made a statement that he has obtained FSL report in which signature of the forefathers of the present petitioners have been found to be dis-similar. Time is extended for seven days.
List this case on 23.2.2012 The investigation is still pending and this court stayed the investigation and arrest of the petitioners. Admittedly on the directions of this court the police sent the will after obtaining it from the court of Additional District Judge No.4 Kota to the FSL. The FSL after examining the will reported that the signature of the forefathers of the present petitiones have been found to be dis-similar. Thus on the basis of the rulings cited and discussed above and the material available on record, I am not inclined to interfere with the investigation of the case by the police under section 156(3) Cr.P.C. at this stage in the inherent jurisdiction of this court under section 482 Cr.P.C. Without commenting on the facts and circumstances of the case and the merits of the case, in my opinion the criminal misc. petition stands dismissed. The interim stay granted by this court from time to time stands vacated. The investigating officer is free to investigate the matter in accordance with law and submit the progress report before the concerned court.
8. For the reasons mentioned above, the criminal misc. petition being devoid of merit stands dismissed. The interim orders passed by this court from time to stand vacated. The stay application stands disposed of.
(Mahesh Chandra Sharma) J.
Pareek/-
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