Karnataka High Court
Sri.N. Suryanarayana Reddy vs Smt.N.Poornima on 6 October, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.8068 OF 2023
BETWEEN:
1. SRI. N.SURYANARAYANA REDDY
S/O N.GOWRANNA,
AGED ABOUT 68 YEARS
R/AT 51, GOPALASWAMY ROAD
GANDHINAGAR
BALLARI - 583 103.
2. SMT. N.SUVARNA
W/O N.SURYANARAYANA REDDY
AGED ABOUT 63 YEARS
R/AT 51, GOPALSWAMY ROAD
GANDHINAGAR
BALLARI - 583 103.
... PETITIONERS
(BY SRI M.V.SHESHACHAL, SENIOR COUNSEL REPTD., AND
SRI PRAVEEN P.TARIKAR, ADVOCATE)
AND:
1. SMT. N.POORNIMA
D/O LATE DEVA REDDY
W/O LATE T.SRINIVASA REDDY
AGED ABOUT 48 YEARS
R/AT D9, VEERANAGOWDA COLONY
BESIDE BALLARI CLUB
2
BALLARI - 583 103.
2. SMT. N.KAVITHA
D/O LATE DEVA REDDY
W/O DR. M.H.RAGHUNATH REDDY
AGED ABOUT 45 YEARS
R/AT NO.180, 1ST CROSS
JCR EXTENSION
CHITRADURGA - 577 501.
3. SMT. N.SHARADA
D/O LATE DEVA REDDY
W/O DR. M.T.R.THIPPESWAMY
AGED ABOUT 43 YEARS
R/AT 3733/A1, 13TH MAIN
6TH CROSS, EXTENDED MCC 'B' BLOCK
KUVEMPU NAGARA
DAVANAGERE - 577 001.
4. SMT. N.ARUNA REDDY
D/O LATE DEVA REDDY
W/O C.SUNIL KUMAR
AGED ABOUT 41 YEARS
R/AT D3, VEERANAGOWDA
COLONY BESIDE BALLARI CLUB
BALLARI - 583 103.
5. THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
THROUGH GANDHINAGAR POLICE STATION
DR. RAJKUMAR ROAD
SATYA NARAYANA PET
BALLARI - 583 101.
... RESPONDENTS
(BY SRI T.HANUMAREDDY, ADVOCATE FOR R1-4;
3
SRI V.S.KALASURMATH, HCGP FOR R5)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR RECORDS IN PCR NO.75/2022
PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC,
BALLARI, AND QUASH THE COMPLAINT REGISTERED BEFORE THE
PRINCIPAL CIVIL JUDGE AND JMFC, BALLARI IN PCR NO.75/2022,
ANNEXURE-A AND CONSEQUENTLY ORDER DATED 28.02.2022
DIRECTING INVESTIGATION U/S 156(3) OF THE CR.P.C. FOR THE
OFFENCES PUNISHABLE U/S 420, 465, 468, 471, 406, R/W
SECTION 120-B, 114, 182, 191 AND 192 OF IPC, PRODUCED AS
ANNEXURE - B IN RESPECT OF ACCUSED NO.1 AND 2.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 01.09.2023 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question registration of a private complaint in P.C.R.No.75 of 2022 and the order of reference of the Principal Civil Judge & JMFC, Ballari for investigation under Section 156(3) of the CrPC for offences punishable under Sections 420, 465, 468, 471, 406 r/w 120B, 114, 182, 191 & 192 of the IPC. The petitioners are accused Nos. 1 and 2 in the said private complaint.
2. The facts adumbrated are as follows:-
4Respondents 1 to 4 are the complainants. It is the case of the complainants that they are the four daughters of late Deva Reddy who dies on 26-06-2001. They register a complaint invoking Section 200 of the Cr.P.C. before the learned Magistrate on 24-02-2022. The gist of the complaint is that the father of the complainants and accused No.1 become signatories to a partnership deed dated 21-10-1987 in the firm Sree Raghavendra Enterprises.
It is the case of the complainants that their father had two other registered partnership firms - one M/s Indian Minerals and Granite Company and the other Sri Raghavendra Granites. The father was the managing partner of the Indian Minerals and Granite Company along with accused No.2 with certain shares.
3. It is the further allegation that accused Nos. 1 and 2 colluded with few of the family members i.e., N.Deva Reddy's family members and continued to carry out mining activities in the lands belonging to the complainants and their mother pursuant to the death of N.Deva Reddy. Later accused 1 and 2 are alleged to have forged the signature of the mother of the complainants Smt. N.Gangamma and have executed a General Power of Attorney 5 ('GPA') which results in the sale of properties. What is to be noticed is, the daughters of N.Deva Reddy are the complainants in the subject petition. The son-in-law of N.Deva Reddy is the 4th respondent/complainant in the companion Criminal Petition No.8076 of 2023. What is alleged in the subject complaint is that the signature of Smt. N.Gangamma has been forged and therefore, the complaint would become maintainable for offences punishable as aforesaid. The learned Magistrate, on registration of the complaint, refers the matter for investigation. Referring the matter for investigation is what drives the petitioners to this Court in the subject petition.
4. Heard Sri M.V. Sheshachala, learned senior counsel appearing for the petitioners, Sri T.Hanuma Reddy, learned counsel appearing for respondents 1 to 4 and Sri V.S. Kalasurmath, learned High Court Government appearing for respondent No.5.
5. The learned senior counsel Sri M.V. Sheshachala representing the petitioners would urge the following contentions viz., that the complainants have no locus to register the crime even 6 as the signature of their mother Smt.N.Gangamma is what is alleged to be forged. Smt. N.Gangamma who is still alive, hale and healthy does not come forward to file the complaint or deny the execution of documents and her signature. He would contend that the cause of action projected by the complainants is only to extract money from the hands of the petitioners, as the projection is pursuant to a search conducted by the Income Tax Department in the firms. The complainants have also filed a suit in O.S.No.69 of 2022 claiming a share in the immovable properties as well as in the partnership firms. Therefore, it is his submission that a dispute, civil in nature, is given a colour of crime. The allegations in the complaint are of forgery of documents which are twenty years vintage. Therefore, the very registration of complaint is hit by Section 468 of the Cr.P.C. as it is filed beyond limitation.
6. On the other hand, the learned counsel appearing for the complainants would submit that Smt.N.Gangamma comes to know the forgery and realizes that her signature has been misused only in 2020 when the Income Tax search happens in the firms in which N.Deva Reddy, the late husband of Smt. Gangamma was a partner.
7It is then, the complaint is sought to be registered before the jurisdictional police. The jurisdictional Police refused to accept the complaint by issue of an endorsement that the issue is purely civil in nature. Then left with no choice the complainants invoke the jurisdiction of the learned Magistrate under Section 200 of the Cr.P.C. The learned Magistrate has only referred the matter for investigation. Mere reference will not give any cause of action to the petitioners who are arrayed as accused in the private complaint.
He would submit that the investigation in the least should be permitted to be conducted.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. The complainants are the children of one N.Deva Reddy and Smt. N.Gangamma. N.Deva Reddy dies in the year 2001. After the death of N.Deva Reddy, the partnership firm is reconstituted by drawing up re-constituted partnership deed between the 1st 8 petitioner and Smt. N.Gangamma and several other accused. The partnership was re-drawn in respect of M/s Raghavendra Granites in which Smt. N.Gangamma comes into the picture in place of late N.Deva Reddy. The re-constitution is accepted in accordance with law and later Smt.N.Gangamma retired on 20-07-2001. Smt. N.Suvarna, 2nd petitioner, wife of the 1st petitioner becomes the partner. This is accepted by the Authorities to be in accordance with law. After 21 years of re-constitution deed of partnership Smt. N.Gangamma does not file any complaint. The daughters of Smt. N.Gangamma alleging that the signature of Smt.N.Gangamma had been forged by drawing up reconstitution deed on 20-07-2001 seek to register a complaint before the jurisdictional Police in the year 2021, 20 years after the reconstitution and the Police refuse to register the complaint on the score that it is purely civil in nature. Civil in nature is accepted by the complainants as they themselves have filed suit in O.S.No.69 of 2022 claiming a share in the immovable property as well as partnership firm that Smt.N.Gangamma had relinquished in the year 2001.
99. The allegation is that Smt. N.Gangamma's signature was forged in the document - re-constitution deed in which Smt. N.Gangamma comes out and Smt.N.Suvarna comes in. It therefore becomes necessary to notice certain paragraphs of the complaint and they read as follows:
"11. Accused No. 1 with the aid and assistance of Accused No. 2 to 4, friends, relatives and other employees of M/s. SRE, IMGC or RG forged the signature of mother of the Complainants - N. Gangamma on reconstituted partnership deeds and form No.5, inducted mother of the Complainants to the exclusion of Complainants on 27-06-2001. A copy of the said Partnership Deed and Form No. 5 both dated 27.06.2001 are produced herewith as Document No. 17 and 18. Thereafter, Accused No. 1 and 2 actively colluded with others and caused retirement of mother of the Complainants by forging her signature in concocted and fabricated Reconstitution Deed and Form No. 5 both dated 20- 07-2001 and have illegally submitted such false, forged and fabricated documents mentioned above to the Competent Authority i.e., Registrar of firms. The alleged reconstituted Partnership deeds and form no. 5 both dated 20.07.2001 are produced herewith as Document No. 19 and 20 respectively.
12. Accused No. 3 and 4 being fully aware about the fact that Accused No. 1 has forged the signature of the Complainants' mother N. Gangamma have affixed their signatures as attesting witnesses. Accused No. 3 and 4 have not affixed signature on Reconstituted Partnership deed dated 27.06.2001 (Document No. 17) neither in presence of N. Gangamma nor has N. Gangamma affixed her signature on the said Documents in the presence of Accused No. 3 and 4. Further the fact that these documents were not attested by any Notary Advocate 10 or that the said Accused No. 1, 2, 3 and 4 and mother of the Complainants have not placed their signatures before the Notary Advocate further fortifies the fact that, the said Document No. 20 and 21 i.e., Reconstituted Partnership Deed and Form V dated 27.06.2001 were forged and fabricated documents.
13. Accused No. 1 with the aid and assistance of Accused No. 2 to 4, friends, relatives and other employees of M/s. SRE, IMGC or RG further forged the signature of N. Gangamma - mother of the Complainants, fabricated and manufactured Partnership Deed dated 20.07.2001 and Form No. V with a dishonest intention to retire N. Gangamma from M/s. IMGC firm. By submission of the said forged documents to the Registrar of firms, Ballari, Accused No. 1 and 2 with the aid and assistance of Accused No. 3 to 5 have caused illegal and non- consensual retirement of the illegal induction of just the mother of the Complainants to the exclusion of all other legal heirs of the N. Deva Reddy into M/s. IMGC within 25 days from the date on which mother of the Complainants was inducted as a Partner only on paper without her knowledge and by adopting surreptitious and illegal means. Accused No. 1 and 2 have adopted such lengthy and well-structured plot to illegally deprive Complainants their legal right to be inducted as Partners subsequent to death of their father, to usurp personal properties belonging to father of Complainants and to circumvent the binding clauses of Partnership deed and law which provide that all legal heirs of a deceased Partner are to be inducted into the firm in order to continue the existing M/s. IMGC firm. Hence the reconstituted M/s. IMGC firm is illegal, and the reconstituted Partnership Deeds, form No. 5 of M/s. IMGC firm filed by Accused No. 1 and 2 are forged, concocted documents, null and void, unenforceable and not binding upon the Complainants.
.... .... .... ....
16. Accused No. 5 being fully aware about the fact that Accused No. 1 has forged the signature of the 11 Complainants' mother N. Gangamma as an attesting witness has affixed his signature as if he was a co-attesting witness to the said forged Document No. 22 i.e., Partnership deed dated 20.07.2001. Accused No. 5 has not affixed his signature on Reconstituted Partnership deed dated 20.07.2001 neither in presence of N.Gangamma nor has N.Gangamma affixed her signature as an attesting witness consenting for her retirement from the said firm on Document No. 22 i.e., reconstituted Partnership Deed dated 20.07.2001. Accused 3 to 5 have abetted the offences committed by Accused No. 1 and 2 and they were present while Accused No. 1 and 2 committed the offence of forgery, cheating and fabrication of the above mentioned documents.
17. In none of the Reconstituted Partnership deeds forged and fabricated subsequent to death of the father of Complainants or any other Partnership deeds executed prior to 26.06.2001 to which Accused No. 1 or father of the Complainants or other erst while partners are signatories, there is neither any clause mentioning that the Schedule A and B Properties have been introduced as Capital assets into the firm nor is there any express intention or document executed by Complainants or their mother authorising or permitting the Accused No. 1 and 2 or present Partners of the M/s. IMGC to carry on mining activities and excavate minor minerals such as black galaxy granite. Despite of the said Schedule A and B Properties being self acquired properties of the father of Complainants, which after his demise by virtue of Section 8 of the Hindu Succession Act, Complainants and their mother are the absolute owners, the Accused No. 1and 2, their sons and other family members have been holding on to the said land and carrying out mining activities illegally without the consent of Complainants and without obtaining requisite and proper approvals from competent authorities according to their own whims and fancies detrimental to the interest of the Complainant and their family members. Accused No. 1 and 2 with an intention to cheat and illegally enrich himself at the cost of Complainants, obtained 12 licenses to quarry black galaxy granite from the said Schedule A and B Properties and earned profits in thousands of Crores to the exclusion of the Complainants and Complainants' mother. Accused No. 1 and his family members have enriched themselves over a period of 20 years by obtaining mining license for properties which were not at any point in time declared as a capital assets of the M/s. IMGC firm either by the complainants or both their Parents. In fact, by playing fraud and by forging various documents he has illegally introduced the self-acquired properties which absolutely belonged to Complainants' father. Since, N. Deva Reddy died intestate, his legal heirs i.e., the Complainants who are the four daughters and their mother N. Gangamma who is the wife collectively had equal rights on the said Schedule A and B Properties amongst other properties. Accused No.1 inducted himself illegally, subsequent to death of N. Deva Reddy, only his Legal Representatives ought to have been inducted, but Accused no. 1 inducted himself along with the mother of the Complainants without the knowledge of Complainants or their mother by forging and fabricating documents. Further, after the mother of Complainants was illegally inducted to the exclusion of Complainants only for name sake and just on papers she was illegally retired within 25 days, under the garb of the said forged documents have cheated complainants to the tune of thousands of crores by not paying the original share of 30% in profits that of deceased Father was entitled to in M/s. IMGC firm and are continuing to extract granite from the said lands belonging absolutely to Complainants and their mother to this date.
18. It may not be out of context to mention here that, one Mr. T.C Goud and Co. whose service are retained by M/s. Sree Raghavendra Enterprises M/s. Indian Minerals and Granite Co., M/s. Raghavendra Granites and Accused No. 1 and 2 and his other family members as Chartered Accountancy firm whose Partner is T.C. Goud, Chartered Accountant himself has placed his signature and seal witnessing the execution of other reconstituted Partnership deeds and form No. Vs filed with the Registrar of Firms, Ballari except on the Reconstituted Partnership firm deeds and Form No. Vs concocted and forged by Accused No. 1, 2 13 and others inducting and retiring the mother of Complainants dated 27.06.2001 and 20.07.2001 illegally by creating forged documents and without her knowledge. It is pertinent to note here that since the inception of the above mentioned three firms, the signature and seal of the said T.C. Goud & Co. - Chartered Accountants' signature can be found in all most all the deeds and forms filed before the Registrar of Firms, Ballari except for the said forged deeds and forms dated 27.06.2001 and 20.07.2001 submitted on 07.09.2007. The earlier Reconstituted Partnership deeds dated 18.01.1988, 01.04.1988, 21.12.1992 (produced as Document No. 13, 14 and 16) and 13.02.1991; Form No, 1 dated 28.09.1984 which are earlier deeds and forms of M/s. Indian Minerals and Granites Co. bear the signature of the T.C. Goud - Chartered Accountant. A certified copy of the Reconstituted Partnership deed dated 13.02.1991 and Form No. 1 dated 28.09.1984 produced before Registrar of firms, Ballari are produced herewith as Document No. 24 and 25. Furthermore, for reasons best known to the Accused No. 1 and 2 and other family members and employees, they have procured signatures of the T.C. Gouda on each and every deed and Form V pertaining to M/s. Raghavendra Granites but the same signatures and seals are missing in the forged reconstituted Partnership deeds and Form Vs inducting and retiring N. Gangamma without her knowledge only on papers on 27.06.2001 and 20.07.2001 respectively. Accused No. 1 and 2 and their family members have adopted and implemented such broad and extreme steps to deprive Complainants of their rightful share in the properties belonging to their father and their share in the profits earned by all three Partnership Firms."
(Emphasis added) The afore-narrated are the dates on which the transaction has taken place and the projection of such transaction is in terms of the complaint. The cause of action that is projected in the complaint is what happens in the year 2020 i.e., the Income Tax search which 14 happens on 15-09-2020. Those paragraphs which project the cause of action read as follows:
"20. In the year 2019, offices of M/s. Sree Raghavendra Enterprises, M/s. Indian Minerals and Granites Co. and M/s. Raghavendra Granites firms including houses, residences and other buildings belonging to Accused No. 1 to 3 including other places of their relatives and friends were raided by Income Tax Dept. In the said raid, Income Tax Officials seized and took into possession all such illegally forged and fabricated form V. Partnership deeds, original property papers which stood in the name of N. Deva Reddy during his life time and other papers which belonged to Complainant No. 4's husband namely Sunil Kumar. on 15.09.2020, Complainant No. 4's husband was served with a notice by Income Tax Dept. A copy of the same is produced herewith as Document No. 26. On 18.09.2020, Complainant No. 4's husband was summoned to Income Tax Office, he appeared on the said date before the IT authorities and co-operated with the enquiry, a written reply was to the notice was issued by Complainant No. 4's husband, a copy of the same with an acknowledgement for having received the same by IT authorities is produced herewith as Document No. 27. In the month and October and November 2020, Complainant No. 4's husband was constantly questioned by IT officials regarding the dealings and business affairs of M/s. Sree Raghavendra Enterprises, M/s. Indian Minerals and Granites Co. and M/s. Raghavendra Granites firms and more importantly illegal dealings of Accused No. 1 to 3 and his other family members. During the course of investigation, various documents seized by IT officials were shown to the Complainant No. 4's husband, it is at this juncture that Complainant No. 4's husband realized the elaborate fraud played by Accused persons on his wife and her family members i.e. Complainants and their mother N. Gangamma. He intimated them and apprised his wife and his sister-in-laws about the fraud committed by Accused No. 1 to 3, his other immediate family members in collusion with uncle of Complainants namely Govinda Reddy, employees of M/s. Sree Raghavendra Enterprises, M/s Indian Minerals and Granites Co. and M/s. Raghavendra Granites firms Accused No. 4 to 10 amongst others and other family members and friends In 15 order to get a better understanding about the illegal acts committed by Accused persons and to ascertain all the self- acquired properties of N. Deva Reddy that were never known to the Complainants which were illegally usurped by Accused No. 1 to 3 and illegally inducted as assets into M/s. Sree Raghavendra Enterprises and M/s. Indian Minerals and Granites Co. firms, Complainants on persuasion by Complainant No. 4's husband Sunil Kumar and Complainant No.1's son namely Raghavendra decided to procure certified copies of all the property papers and firm related papers filed with various government offices like dept. of mines and geology, Sub-Registrar office, Registrar of Firms both in the State of Karnataka and Andhra Pradesh offices in the month of November 2020. On 30.11.2021, another notice was issued by IT authorities to Complainant No. 4's husband, to further enquiry and investigate the business affairs of M/s. Sree Raghavendra Enterprises, M/s. Indian Minerals and Granites Co. and M/s. Raghavendra Granites firms and that of Accused No. 1 to 3 and othe immediate family members of Accused No. 1 and 2. A copy of the said notice dated 30.11.2021 is produced herewith as Document No. 31. Complainant No. 4's husband Mr. C. Sunil Kumar issued a written reply to the said notice, a copy of the same is produced as Document No. 32. It is submitted that up until 2nd quarter of 2021, Complainants were not fully aware about the fraud, breach of trust and deceit played upon them by Accused No. 1 to 3 in collusion with other family members, employees of M/s. Sree Raghavendra Enterprises, M/s. Indian Minerals and Granites Co. and M/s. Raghavendra Granites firms and Accused No. 4 to 10.
21. It is submitted that the Complainants herein had filed a complaint before the S.H.O Gandhinagar police station Ballari on 15/07/2021, however the S.H.O, Gandhinagar Police Station did not conduct any preliminary enquiry or register a case against the Accused persons though the accused persons have committed the above said offences and such being the fact the S.H.O Gandhinagar police station has issued an endorsement stating that the complaint is civil in nature hence he has refused to take cognizance of offences mentioned in the complaint. A notarised copy of the 16 Complaint dated 15.07.2021, Endorsement dated 15.07.2021 issued by Gandhinagar, P.S. and endorsement/ NCR dated 17.07.2021 issued by SHO. Gandhinagar Police Station is produced herewith as Document No. 33. 34 and 35. Thereafter the complainant has approached the Superintendent of Police, Ballari as contemplated U/s 154(3) of Cr.P.C on 12.08.2021 and the said complaint was referred to Gandhinagar Police Station for further action and again an endorsement to that effect in similar fashion that the matter or the allegations made are civil in nature has been issued. A copy of the said Complaint dated 12.08.2021 and endorsement dated 25.10.2021 are produced herewith as Document No. 36 and 37. The Police authorities have acted hand in glove to shield the Accused Persons and have assisted the Accused persons in achieving and accomplishing their ill- motives. The Police authorities have shirked from their duty and responsibility to act upon the complainant lodged by Complaint within the framework of law. Having no other means and aggrieved by the same, the complainant is approaching this Hon'ble Court through this Private complaint with the following prayer."
(Emphasis added) The prayer that is sought is reference under Section 156(3) of the CrPC. The learned Magistrate refers the matter for investigation without even looking into the time line in the complaint. What is sought to be projected as forgery is a document of 20-07-2001.
The complaint is registered in 2022, 21 years later. The alleged forgery is of Smt. N.Gangamma. Smt. Gangamma is not the complainant though Smt. N.Gangamma is living, hale and healthy.
1710. The daughters of Smt. N.Gangamma file the complaint ostensibly coaxed by the son-in-law of N.Deva Reddy in the companion petition. It is the admitted fact that these very complainants are before the civil Court in O.S.No.69 of 2022. The prayer that is sought before the civil Court in the aforesaid suit is as follows:
"ix) Declare that all the reconstituted partnership deeds Dated 27-06-2001 and Dated 20-07-2001 and Form V's dated 27-06-2001 and 20-07-2001 of the Defendant No.2 firm SREE RAGHAVENDRA ENTERPRISES; reconstituted partnership deeds dated 27-06-2001 and Dated 20-07-2001 and Form V's dated 27-06-2001 and 20-07-2001 of the Defendant No.5 firm INDIAN MINERALS AND GRANITE Co.:
reconstituted partnership deeds dated 27-06-2001, 20-07-2001, 01-04-2002, 01-04-2009 and 21-12- 2015 and Form V's dated 27-06-2001, 20-07-2001, 30- 04-2002, 01-04-2009 and 21-12-2015 of Defendant No. 6 firm RAGHAVENDRA GRANITES are null and void and not binding on the Plaintiffs."
(Emphasis added) What is sought as declaration before the civil Court is to declare the reconstituted partnership deeds dated 27-06-2001 and 20-07-2001 to be null and void and not binding on the complainants. The plaintiffs in the suit are the very complainants in the private complaint. Their mother is also made a defendant as they are seeking partition in the firm. Therefore, on the face of it, the issue 18 is purely civil in nature. There can be no cavil to doubt that a case which is purely civil in nature and stinkingly stale, is sought to be dressed with a colour of crime.
11. The complaint is in great detail, a very well drafted complaint. If it is read between the lines, the cat is out of the bag.
The intention is to get over the partnership which they may or they may not achieve in the civil suit. In such circumstances the Apex Court directs this Court that, while entertaining a petition under Section 482 of the CrPC to read between the lines and bring out the illegality in the registration of the complaint. Reference being made to the judgment of the Apex Court in the case of MAHMOOD ALI v. STATE OF U.P.1 in the circumstance becomes apposite wherein the Apex Court holds as follows:
"9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the FIR bearing No. 127 of 2022 should be quashed?
10. We are of the view that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after 1 2023 SCC OnLine SC 950 19 a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed.
11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604. The parameters are:--
"(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 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 20 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 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."
12. We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).
13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under 21 Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--
"5. ...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 such abuse. It would be an abuse of the 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 or 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.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should 22 be exercised to quash the proceedings : (AIR p. 869, para
6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."
(Emphasis supplied)
15. In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court of Judicature at Allahabad is hereby set aside. The criminal proceedings arising from FIR No. 127 of 2022 dated 23 04.06.2022 registered at Police Station Mirzapur, Saharanpur, State of U.P. are hereby quashed."
(Emphasis supplied) In the light of the law laid down by the Apex Court in the case of MAHMOOD ALI (supra) if the complaint is read between the lines, what would unmistakably emerge is, the mala fide and frivolousness of registration of the complaint itself. The issue is undoubtedly civil in nature. For a civil suit to be filed which is admittedly filed by the complainant and pending adjudication, whether the present complaint should be permitted to be continued is the issue, that should not detain this Court for long or delve deep in to the matter. The Apex Court in the case of DEEPAK GABA v.
STATE OF U.P.2 has held as follows:
"..... ..... ..... .....
11. The private complaint filed by Respondent 2 complainant had invoked Sections 405, 420, 471 and 120-BIPC. However, by the order dated 19-7-2018, summons were directed to be issued only under Section 406IPC, and not under Sections 420, 471 or 120-BIPC. We have quoted the operative and reasoning portion of the summoning order, that records in brief the assertions in the complaint, to hold that Respondent 2 complainant had shown that "a forged demand of Rs 6,37,252.16p had been 2 (2023) 3 SCC 423 24 raised by JIPL, which demand is not due in terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand". The order states that Respondent 2 complainant had filed photocopy of "one" email as per Documents 1 to 34, but the narration and the contents of the email is not adverted to and elucidated.
12. In case of a private complaint, the Magistrate can issue summons when the evidence produced at the pre- summoning stage shows that there is sufficient ground for proceeding against the accused. The material on record should indicate that the ingredients for taking cognizance of an offence and issuing summons to the accused is made out. [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361; Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri) 687; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400. The proviso to Section 200 of the Code is not applicable in the present case.]
13. In the present case, the trial court did not issue summons under Sections 420 and 471IPC, or for that matter, invoke the provision relating to conspiracy under Section 120-BIPC. Although the summoning order dated 19-7-2018 does not deal with these sections of the IPC, we deem it imperative to examine the ingredients of the aforesaid sections, and Section 406IPC, and whether the allegations made in the complaint attract the penal provisions under the relevant sections of the IPC. We have undertaken this exercise in order to carry out a complete and comprehensive analysis of the factual matrix and the legal provisions, and rule out possibility of an error to the detriment of Respondent 2 complainant.
14. Section 406IPC [ "406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."] prescribes punishment for breach 25 of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405 IPC. [ "405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust."(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405IPC are excluded, as they are irrelevant.)]
15. For Section 405IPC to be attracted, the following have to be established:
26(a) the accused was entrusted with property, or entrusted with dominion over property;
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646]
17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 27 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 :
(2010) 3 SCC (Cri) 1201]
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.
2820. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.
21. Section 471IPC [ "471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."] is also not attracted. This Section is applicable when a person fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , has elucidated that the condition precedent of an offence under Section 471IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471IPC, it has to be proven that the document was "forged" in terms of Section 470 [ "470. Forged document.--A false document [or electronic record] made wholly or in part by 29 forgery is designated "a forged document or electronic record"."] , and "false" in terms of Section 464IPC [ "464. Making a false document.--A person is said to make a false document or false electronic record--First.-- Who dishonestly or fraudulently--(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for "digital signature" by Act 10 of 2009, Section 51(e) (w.e.f. 27-10-2009)Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."] .
22. Section 470 lays down that a document is "forged" if there is:
(i) fraudulent or dishonest use of a document as genuine; and
(ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one.
Section 470 defines a "forged document" as a false document made by forgery.
3023. As per Section 464IPC, a person is said to have made a "false document":
(i) if he has made or executed a document claiming to be someone else or authorised by someone else;
(ii) if he has altered or tampered a document; or
(iii) if he has obtained a document by practising deception, or from a person not in control of his senses.
24. Unless the document is false and forged in terms of Sections 464 and 470IPC respectively, the requirement of Section 471IPC would not be met.
25. In the counter-affidavit filed by Respondent 2 complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs 79,752 shown on 30-3-2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a forged document or false document, in terms of Sections 470 and 464IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre-summoning evidence is silent with regard to this bill and mens rea on the part of the accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs 53,215 which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as "forged" or "false" within the meaning of Sections 470 and 464IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter-affidavit filed before us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for 31 the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence.
26. For completeness, we must record that the appellants have placed on record the dealership agreement dated 11-4-2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent 2 complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent 2 complainant would not be liable, had Manav Rachna International failed to pay. Non- payment is also not alleged in the complaint or the pre- summoning evidence. Reliance on objections vide emails dated 4-7-2014 and 21-7-2014 are of no avail, as they are for the period prior to 31-7-2014, when the bill/invoice was raised.
27. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are:
(i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant,
(ii) goods supplied were different from the order placed, and
(iii) goods lying with, and returned by Respondent 2 complainant have not been accounted for.
These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of 32 criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of "insufficient funds".
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 :
(2012) 2 SCC (Cri) 650] , as it refers to earlier case laws in copious detail.
29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion.
3330. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124.]
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory 34 upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken.
33. The order sheet of the trial court enclosed with the appeal reveals that notwithstanding that the summoning order was limited to unnamed Manager and Chief Manager of JIPL, the Additional Chief Judicial Magistrate had deemed it appropriate to issue non-bailable warrant. The non- bailable warrant was not issued in the name of any person but by designation against the Chief Manager JIPL, Andheri East, Mumbai. This was also one of the reasons that had prompted the appellants to the file the petition under Section 482 of the Code.
34. We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713]; Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426.] Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be 35 exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued."
(Emphasis supplied) In the light of the judgment of the Apex Court in the case of DEEPAK GABA and the facts obtaining before the Apex Court vis-
a-vis the facts obtaining at the case at hand, it would become unmistakably clear that the complaint is an abuse of the process of law, as none of the offences have their ingredients in the case at hand.
12. Apart from the aforesaid circumstance, the complaint is registered in the year 2022 for an incident of 21 years of vintage that is said to have taken place in 2001 more particularly on 20.07.2001. The only projection with regard to the so-called explanation of delay is the search conducted by the Income Tax Department. This is already held to be unacceptable in the companion petition. Reference being made to the judgment of the Apex Court in the case of CHANCHALPATI DAS v. STATE OF 36 WEST BENGAL3 in the circumstances would become apposite. The Apex Court in the said judgment has held as follows:
".... .... .... ...."
"13. It cannot be gainsaid that the High Courts have power to quash the proceedings in exercise of powers under Section 482 of Cr. P.C. to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Though the powers under Section 482 should be sparingly exercised and with great caution, the said powers ought to be exercised if a clear case of abuse of process of law is made out by the accused. In the State of Karnataka v. L. Muniswamy had held that the criminal proceedings could be quashed by the High Court under Section 482 if the court is of the opinion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed.
14. This Court, way back in 1992 in the landmark decision in case of State of Haryana v. Bhajan Lal (Supra), after considering relevant provisions more particularly Section 482 of the Cr. P.C. and the principles of law enunciated by this Court relating to the exercise of extra- ordinary powers under Article 226, had laid down certain guidelines for the exercise of powers of quashing, which have been followed in umpteen number of cases. The relevant part thereof reads as under:
"102. 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 extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of 3 2023 SCC OnLine SC 650 37 justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised 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 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 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 proceeding is 38 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."
15. In State of A.P. v. Golconda Linga Swamy this Court had observed that the Court would be justified to quash the proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court.
16. As regards inordinate delay in filing the complaint it has been recently observed by this Court in Hasmukhlal D. Vora v. State of Tamil Nadu that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint.
17. In the light of afore-stated legal position, if the facts of the case are appreciated, there remains no shadow of doubt that the complaint filed by the respondent-complainant after an inordinate unexplained delay of eight years was nothing but sheer misuse and abuse of the process of law to settle the personal scores with the appellants, and that continuation of such malicious prosecution would also be further abuse and misuse of process of law, more particularly when neither the allegations made in the complaint nor in the chargesheet, disclose any prima facie case against the appellants. The allegations made against the appellants are so absurd and improbable that no prudent person can ever reach to a conclusion that there is a sufficient ground for proceeding against the appellants- accused.
18. Before parting, a few observations made by this Court with regard to the misuse and abuse of the process of law by filing false and frivolous proceedings in the Courts need to be reproduced. In the Court. In Dalip Singh v. State of Uttar Pradesh it was observed that:
39"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings."
19. In Subrata Roy Sahara v. Union of India it was observed as under:
"191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill- considered claims."
20. We would like to add that just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego.
4021. Having regard to the facts and circumstances of the present case and for the reasons stated hereinabove, we deem it appropriate to quash the criminal proceedings pending against the appellants in the Court of Chief Judicial Magistrate, Alipore, arising out of the FIR No. 33 of 2009 registered at Ballygunge Police Station, and quash the same."
(Emphasis supplied) In the light of the aforesaid judgment of the Apex Court in the case of CHANCHALPATI DAS, the complaint ought to have been shown the doors by the learned Magistrate himself under Section 203 of the CrPC, without referring the matter for investigation under Section 156(3) of the CrPC. The learned Magistrate performs judicial function. Order of reference is a judicial order. The least that the Magistrate should undertake is a cursory perusal at the complaint, so that it demonstrates some semblance of application of mind. Bald and laconic order of reference by the learned Magistrate, in each and every complaint preferred before it, would undoubtedly lead to docket explosion and clogging either the criminal Court or this Court in petitions filed there and here.
4113. The learned Magistrate, therefore needs to filter frivolous complaints, and such filtering would require a little scrutiny of the contents of the complaint, though not elaborate consideration, a consideration that would demonstrate some application of mind.
Therefore, in the light of the subject complaint shrouded with improbability, delay and intentions suffering from want of bonafides, even if the contents of the complaint are construed to be true, they would not become the ingredients of the crime. In the teeth of the aforesaid facts and the preceding analysis, so also the law laid down by the Apex Court in the afore-quoted judgments, if further proceedings/investigation is permitted to continue, would undoubtedly become an abuse of the process of the law, degenerate into harassment and result in patent injustice.
Therefore, I find this case to be one such which would require obliteration of the crime in exercise of jurisdiction under Section 482 of the CrPC as elucidated by the Apex Court in the case of MAHMOOD ALI (supra).
4214. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed and the private complaint in P.C.R.No.75 of 2022 pending before the Principal Civil Judge and JMFC, Ballari stands obliterated qua the petitioners.
(ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioners under Section 482 of the CrPC and the same would not bind any other proceedings pending between the parties.
Sd/-
JUDGE bkp CT:ss