Rajasthan High Court - Jaipur
Sita Ram Suiwal And Anr vs State Of Rajasthan And Ors on 19 November, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER Sita Ram Suiwal & Anr. Vs. State of Raj. & Ors. S. B. Cr. MISC. PETITION NO. 3851/2012. under Section 482 Cr.P.C. for quashing the FIR No. 570/2012 registered at Police Station Sanganer for offence under Sections 420 and 120B IPC. Date of Order : 19th November, 2013. HON'BLE MRS. JUSTICE NISHA GUPTA Mr HP Singh, for petitioners. Mr Laxman Meena, Public Prosecutor. Mr Laxmi N. Sharma for Mr RK Daga, for respondent BY THE COURT
This Misc. petition under Section 482 Cr.P.C. has been filed for quashing FIR No. 570/2012 registered at Police Station Sanganer for offence under Sections 420 and 120B IPC.
2. The respondent No.4 Alka Mishra filed a complaint in the Court of Judicial Magistrate No.26, Jaipur Metropolitan against the present petitioners which was sent for investigation under Section 156(3) Cr.P.C. with the allegations in the FIR that the present petitioners has leased the property by registered sale deed on 5.11.2009 to the complainant and she started a factory for preparing Almirah. 60 cheques has also been taken by the accused persons in lieu of the rent. Babulal Saini and Mithulal Saini on 30.5.2012 have demanded the rent from the complainant, thereafter the complainant asked the present petitioners to show their title deeds which was never shown to the complainant. The premises has been wrongly shown as commercial premises and it was rented to the complainant on the pretext that petitioner No.2 is the owner of the land whereas premises belongs to Babulal and Mithulal and by cheating, 20 lacs has been taken from the complainant.
3. The contention of the present petitioners is that by way of an agreement to sell, the land was purchased from Pancha etc. by Panchulal and Gulabdevi. Gulab Devi is the mother of petitioner No.1 and physical possession of the land was also handed over to the purchasers. Thereafter, JDA had acquired some part of land and before the Land Acquisition Officer Babulal has submitted that Panchulal and his other brothers had sold his land to Gulab Devi and Gulab Devi is in continuing physical possession over the land. The amount of compensation be handed over to Gulab Devi and the Land Acquisition Officer had disbursed the compensation to Gulab Devi. Thereafter, family members have divided their family property and property came in possession of petitioner No.1. Babulal has also executed a sale-deed in favour of petitioner No.1 and thereafter by registered lease deed, property was landed to complainant in the year 2009. For some time, relations between the parties remained cordial but thereafter the complainant became defaulter in payment of rent. The present petitioners have lodged a criminal complaint under Section 138 of the Negotiable Instruments Act (in short NI Act) and respondent also moved before the Rent Tribunal, in the backdrop of this, this false FIR has been lodged. From the documents, it is clear that the property belongs to accused petitioners, they had not committed any forgery. Respondent No.2 is still running the business in the property and no forgery or cheating has been committed with anyone. Property is commercial in nature and it has been admitted by the complainant respondent No.2 in Para No.12 in the petition filed by respondent No.2 before the Rent Tribunal, hence allegations are false; dispute is of civil nature and to pressurize this false complaint has been made. The present petitioners have been arrested and during course of arguments of bail, Mithulal has also filed affidavit in favour of present petitioners that present petitioners are the owner of the land, hence initiation of proceedings is abuse of the process of the Court and be quashed.
Per contra, the contention of the learned Public Prosecutor and counsel for the respondent is that petitioner No.2 is not the owner of the property and land is still agricultural in nature and without disclosing the true facts, rent deed has been executed charge-sheet is ready to be filed, hence proceedings should not be quashed.
4. Heard the learned counsel for the petitioners and learned Public Prosecutor and counsel for the respondent and perused the impugned FIR as well as the documents produced by the petitioners.
5. The first contention of the respondent is that investigation is complete and charge-sheet is ready to be filed, hence this petition for quashing the FIR is not maintainable. The counsel for the petitioners has relied upon 2011 (7) SCC 59, Josheph Salvaraja vs State of Gujarat and others where it has been held that even if charge sheet has been filed, High Court could still examine whether alleged offences are prima facie made out or not and it has been held that filing of the charge sheet or even framing of charge is not a bar to exercise jurisdiction of the Court because the very purpose of inherent powers is for advancement of justice and filing of charge sheet is not an absolute bar to entertain petition under Section 482. Court must ensure that criminal prosecution must not be used as an instrument of harassing or for seeking private vendetta. There is no doubt about the fact that powers under Section 482 are extraordinary in nature and should be used with caution and care, but the basis of the powers is that it should be used for advancement of justice and such powers could be used at any stage or intermediate stage of the trial, hence, the objection of the respondent that charge sheet has been filed is no bar for quashing the FIR.
6. In view of the above, there is no straight-jacket bar for entertaining the petition under Section 482 Cr.P.C. on the ground that charge-sheet has been filed or prosecution has been allowed to proceed. The Apex Court has categorically held in catena of judgments that the main purpose of inherent powers is advancement of justice and to achieve ends of justice and if a case is set up that the powers be exercised, there is no limitation on the inherent powers which can be exercised at any intermediate stage of the trial, hence the contention of the respondent that charge-sheet is ready in itself is not bar for entertaining the petition under Section 482 Cr.P.C.
7. The petitioners have placed the documents which are public documents, registered documents and not controverted and disputed by the respondent they are reliable documents and they clearly rules out the allegations narrated in the FIR. Agreement to sell in favour of Panchulal and Gulab Devi has been placed on record as Annex.2 which shows that the property has been purchased by the ancestor of the petitioners in 1984. The order of Land Acquisition Officer dated 1.11.2003 reveals that Babulal has left his rights and compensation has been awarded to Gulab Devi and it has been specifically held by the concerned authority that land has been sold to Gulab Devi which is Annex.3. On the strength of Annex.4, Babulal has sold his part of the property to petitioner No.1, lease deed between Babulal and petitioner No.1 is admitted document and complainant has also filed a petition before the Rent Tribunal where she has stated that the property was rented for commercial purpose and it has also been admitted that she is running the factory on the premises since 2009. The respondent has also moved to Director, Stamps and Registration wherein it has been stated that the land is commercial and from last 10 years, it is using for commercial purposes, hence the allegation against the present petitioners that land was agricultural and a higher amount of rent was received is baseless and is not sustainable. Mithu Lal has also sworn in favour of petitioners. Lease deed is admitted document between the parties which rules out the allegation of forgery or cheating. After due consideration, lease deed has been executed between the parties and property is in possession of respondent since 5.11.2009, she is using the property for the purpose for which it has been taken on rent. Respondent No.4 herself has designated the present petitioners as land lord of the property in petition before the Rent Tribunal which clearly suggests that the criminal proceedings have been lodged to pressurize the petitioners or to settle scores on the cost of criminal proceedings.
8. The contention of the petitioners seems sound that when respondent became defaulter in payment of rent and cheque which has been handed over as rent has been dishonored, they lodged the criminal complaint under Section 138 NI Act and to counter-blast that complaint, this false FIR has been lodged.
9. The counsel for the petitioners has also relied upon the provision of Section 110 and 116 of the Evidence Act which read as under:
110. Burden of proof as to ownership.- When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
In the light of the above, respondent complainant is estopped from saying that land lord is not the owner.
10. This Court vide order dated 1.4.2013 has considered the fact that lease deed has been entered between the parties, registered sale deed has been executed in favour of petitioners dated 31.8.2011 and civil cases are also pending between the parties and the Investigation Officer was directed to consider the documents but to utter surprise of this Court, these documents have not been considered by the concerned Investigation Officer and even the higher authorities has not paid any attention on the documents and police has also become a tool in the hands of respondent for harassing the petitioners. This is a very sorry state of affairs which needs close attention by the higher police authorities at their level.
11. In view of the above, the case squarely covered under clause VII of law laid down in State of Haryana vs Bhajanlal (1992) suppl (1) SCC 335 wherein it was held:
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with ulterior motive for wreaking vengeance on the accused and with a view to sprite him due to private and personal grudge.
12. In the present case, the complaint has been filed with ulterior motive to circumvent the earlier litigation pending between the parties.
In view of the above, the petition succeeds and is allowed. Impugned FIR, FIR No. 570/2012 registered at Police Station Sanganer for offence under Sections 420 and 120B IPC is quashed.
In view of the conduct and approach of the Investigating Officer and higher authorities who were responsible for the supervision of the investigation inspite of the specific order of this Court dated 1.4.2013, the copy of the order be forwarded to the D.G. Police to initiate appropriate disciplinary proceedings against the erring police officers and result be communicated to this Court on or before 28.2.2014.
The petition is disposed of as above to be listed on 28.2.2014 to see the compliance.
(NISHA GUPTA),J.
Gandhi/ 127 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Brij Mohan (Sr. P.A