Gauhati High Court
Laxmipat Choraria & Ors vs Chittaranjan Patowary on 16 July, 2012
Author: I A Ansari
Bench: I A Ansari
Page No. 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
CRIMINAL PETITION No. 258 of 2010
1. Sri Laxmipat Choraria,
Son of Late Chand Choraria,
Resident of Mullapatty,
Mouza-Kachamari, Dist. Nagaon,
Assam.
2. Md. Imdad,
Son of Late Wahid Uddin,
Resident of Daccapatty,
Nagaon Town, Dist. Nagaon,
Assam.
- Petitioners
- Versus -
Shri Chittaranjan Patowary,
S/o Late K. C. Patowary,
Resident of Bibekananda Path,
Paltan Bazar, P.O. Guwahati.
- Respondent
PRESENT
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the petitioner : Mr. J. Sarma,
Mr. G. Kakoti.
For the respondent : Mr. P. Kataky,
Mr. D. Chakraborty.
Date of hearing and judgment : 16.07.2012
JUDGMENT & ORDER
(ORAL)
With the help of this application, made under Section 482 CrPC, the two petitioners, who are accused in Complaint Case No. 2866C/2009, pending in the Court of the learned Sub-Divisional Judicial Magistrate, Kamrup, Guwahati, has sought for quashing Crl. Pet. 258 of 2010 Page No. 2 of the complaint, in question, which has given rise to the case aforementioned.
2. I have heard Mr. R. Sarma, learned counsel for the accused- petitioners, and Mr. P. Kataky, learned counsel, appearing for the complainant-opposite party.
3. Briefly stated, the complainant's case runs thus:
(a) The complainant constructed, on his own land, a double-storied RCC building in the year 1988 and started running hotel business, in the said premises, under the name and style of M/s Hotel Pragjyotish. Sometime in the year 2007, the present petitioners, as partners of M/s L. M. Commercial house, approached the complainant with the proposal to take, on lease, the said hotel on payment of monthly rent and also to construct the remaining floors of the said building, namely, 2nd, 3rd and 4th floors at their own cost. In terms of an agreement arrived at, a tenancy agreement was executed, on 02.11.2007, between the complainant, on the one hand, and the accused-petitioners, on the other, whereunder the accused petitioners agreed, as tenants, to pay rent @ Rs. 24/- per Sq. ft. , per month, totalling to an amount of Rs. 2,88,000/- per month, the amount being payable within the 5th day of every succeeding month. The accused-petitioners also agreed to pay to the plaintiff an amount of Rs. 20,00,000/- as security refundable without interest. The said agreed amount of Rs. 20,00,000/- was to be paid on 02.11.2007, which the complainant acknowledged by giving a receipt in this regard. The period of tenancy was for three years, commencing from 01.11.2007 and ending on 31.10.2010, with an option to renew and extend the period of tenancy for another three years. The Crl. Pet. 258 of 2010 Page No. 3 accused-petitioners also agreed, in the tenancy agreement, dated 02.11.2007, that the complainant would allow the accused-
petitioners to use the complainant's bar license and, in consideration thereof, the complainant would be paid a sum of Rs. 4,00,000/-. As against the said amount of Rs. 4,00,000/-, the accused-petitioners paid an amount of Rs. 2,00,000/- and the remaining amount was agreed to be paid within twelve months. The accused-petitioners, however, failed to pay the remaining amount.
(b) However, in violation of the above agreement of tenancy, the accused-petitioners started running the hotel in the name and style of Hotel Fame City, though the municipality trade license, sales tax clearance, etc., remained in the name of Hotel Pragjyotish. The accused-petitioners got the possession of the suit premises on 01.11.2007 and agreed to make minor repairing and renovation and, for this purpose, the accused-petitioners agreed to pay Rs. 1 lakh for the month of November, 2007, December, 2007 and January, 2008, and for the month of February, March and April, 2008, the accused-petitioners paid rent @ Rs/-2,88,000/- per month. As the accused-persons failed and neglected to pay the rent from the month of June, 2008, they became defaulter and a suit has been accordingly instituted by the complainant, as plaintiff, in the court of the learned Civil Judge (Sr. Division) No. 1, Kamrup, Guwahati, seeking ejectment of the accused-petitioners from the tenanted premises, recovery of rents, etc. The suit has given rise to Title Suit No. 1/2009.
(c) However, during pendency of the said suit, the accused-persons, too, instituted a money suit against the Crl. Pet. 258 of 2010 Page No. 4 complainant, in the Court of the learned Civil Judge (Sr. Division) No. 1, Kamrup, Guwahati, seeking recovery of Rs. 36,15,769/- from the complainant, which gave rise to Money Suit No. 47/2009, the case of the accused-petitioners, as set up by them in their complaint, being to the effect that the complainant had taken a loan of Rs. 20,00,000/- from the accused-petitioner, which was payable with compound interest @ 18% per month, the tenancy agreement having been executed by the parties on 02.11.2007. Mischievously enough, with the said money suit, the agreement of tenancy had not been filed by the complainant. A photocopy of the alleged tenancy agreement, dated 02.11.2007, was, however, on record and this copy shows, according to the complainant, that the said tenancy agreement has been forged inasmuch as the printed page No. 8 of the said agreement has been covered by black ink and a new printed figure '5' has been inserted therein and it transpires that the photocopy of the last page of the tenancy agreement, executed on 02.11.2007, has been used to give credence to the alleged tenancy agreement. In short, thus, according to the complainant, the alleged agreement of loan is a forged one.
4. The accused-petitioners have put to challenge the maintainability of the complaint, in question, on the ground that taking of cognizance of the offence of forgery, allegedly committed by the accused-petitioners, under Section 468/471 IPC, stands, in the facts and attending circumstances of the present case, barred under 195(1)(b)(ii) CrPC and since the learned trial Court, according to the accused-petitioners, could not have taken cognizance of the offence, because of the bar imposed by Crl. Pet. 258 of 2010 Page No. 5 195(1)(b)(ii), the taking of cognizance of the offence, under Section 468/471 IPC, in the present case, was bad in law and the complaint needs to be, therefore, set aside and quashed.
5. Before coming to the merit of the present application, made under Section 482 CrPC, it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R. P. Kapoor v. State of Punjab (AIR 1960 SC 866), wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out. Gajendragadkar, J, speaking for the Court, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P.Kapoor (Supra), it becomes abundantly clear Crl. Pet. 258 of 2010 Page No. 6 that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed.
6. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed.
7. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana and Ors. V. Bhajanlal and others, reported in 1992 Supp (1) SCC 335, laid down as follows :-
"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 of 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 the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of 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 entirely, do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made 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 Crl. Pet. 258 of 2010 Page No. 7 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 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 allegation 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 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 maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge".
8. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution on the powers of quashing of criminal proceedings in the following words :-
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability Crl. Pet. 258 of 2010 Page No. 8 or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." (Emphasis is added)
9. It is clear from a close reading of the principles laid down, in the case of R.P.Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
10. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial.
11. However, in Harshendra Kumar D. vs. Rebatilata Kiley and others, reported in (2011) 3 SCC 351, the Supreme Court Crl. Pet. 258 of 2010 Page No. 9 has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant's resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under:
"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be Crl. Pet. 258 of 2010 Page No. 10 quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company."
12. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra-ordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 CrPC, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court's power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal Crl. Pet. 258 of 2010 Page No. 11 prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding.
13. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be perversity of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court.
14. Coupled with the above, there is no doubt that an FIR or a complaint may be quashed if the same is found to be actuated by mala fide (See. Hira Lal and others -vs- State of Uttar Pradesh, reported in (2009) 11 SCC 89) or make accusations, which are absurd or inherently improbable that no reasonable man would accept the allegations made in the FIR or the complaint, as the case may be, as true and/or in a case where the FIR and/or the complaint, as the case may be, is lodged as a counterblast. (See. MN Ojha & others -vs- Alok Kumar Srivastav & others, reported Crl. Pet. 258 of 2010 Page No. 12 in (2009) 9 SCC 682). The FIR or a complaint may even be quashed, when the same is used as a weapon of harassment or persecution (See. State of Karnataka -vs- L. Muniswamy, (AIR 1977 SC 1489).
15. Bearing in mind the parameters of the High Court's power in quashing complaint, when I revert to the case at hand, what attracts the attention, most prominently, is that the entire controversy, in the present criminal petition, centres around the provisions of Section 195. It is, therefore, necessary to take note of the relevant provisions of Section 195, which read as under:
"(1) No court shall take cognizance -
(a) (i) *** *** ***, or
(ii) *** *** ***, or
(iii) *** *** ***;
(b) (i) *** *** ***, or
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) *** *** *** except on the complaint in writing of that court, or of some other court to which that court is subordinate. *** *** ***."
16. In Surjit Singh Vs. Balbir Singh, reported in (1996) 3 SCC 533, the Supreme Court had held to the effect that once a document is produced or given in evidence in a Court, Section 195 (1) (b) (ii) bars courts from taking cognizance on the basis of a private complaint of forgery having been committed in respect of such a document. In other words, according to Surjit Singh's case (supra), irrespective of the fact as to whether a forgery in respect of a document is committed before or after the document is Crl. Pet. 258 of 2010 Page No. 13 introduced in evidence, the bar, created by Section 195 (1) (b) (ii), gets attracted.
17. However, in a subsequent case, namely, Sachida Nand Singh Vs. State of Bihar, reported in (1998) 2 SCC 493, the Supreme Court took the view that the bar, contained in Section 195(1)(b)(ii), would not apply, when forgery in respect of a document was committed before the document had been produced in the Court or introduced in evidence. The relevant observations, made in Sachida Nand Singh (supra), read as under:
"6. In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paras 11, 12 and 23, which are being reproduced below:
The scope of the preliminary enquiry envisaged in Section 340 (1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that court. In other words, the offence should have been committed during the time when the document was in custodia legis.
It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the court and long before its production in the court, could also be treated as one affecting administration of justice merely because that document later reached the court records. *** *** ***
23. The sequitur of the above discussion is that the bar contained in Section 195 (1) (b) (ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."
18. The controversy, thus, raised was as to whether the bar, under Section 195(1)(b)(ii), applies to the cases, where forgery of a document is committed before the same is produced in the Court Crl. Pet. 258 of 2010 Page No. 14 or Section 195(1)(b)(ii) is attracted only when such forgery is committed after the document has already been produced in the Court. This controversy has been authoritatively resolved by a Constitution Bench, in Iqbal Singh Marwah and Anr. Vs. Meenakshi Marwah and Anr., reported in (2005) 4 SCC 370, wherein, concurring with the views, expressed in Sachida Nand Singh (supra), the Constitution Bench has held that the bar, under Section 195(1)(b)(ii), would be attracted only when the offences enumerated therein have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court, i. e. , when the document was in custodia legis. The relevant observations made, in this regard, read as under:
"33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been currently decided and the view taken therein is the correct view. Section 195 (1)
(b) (ii) Crpc would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court, i.e., during the time when the document was in custodia legis."
19. In the light of the authoritative pronouncement in Iqbal Singh Marwah (supra), there can be escape from the conclusion that when a document is forged and, then, produced in a Court, the complaint, as regards the offence of forgery, can be lodged by anyone and no formal complaint by the Court, where the forged document is filed or introduced, is necessary. Conversely, a complaint by a Court is necessary only when forgery, in respect of Crl. Pet. 258 of 2010 Page No. 15 a document, is committed after the document has already been produced in the Court or introduced in evidence.
20. What may also be noted is that Section 190 Cr. P. C. empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts, which constitute such offence,
(b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
21. Section 195 is one of the exceptions to the general provisions of Section 190 inasmuch as Section 195 creates an embargo upon the Magistrate's power to take cognizance of certain specified offences. The procedure for filing of a complaint by a Court, contemplated by Section 195(1)(b)(ii), is given in Section 340 Cr. P. C. This Section reads:
"340. Procedure in cases mentioned in Section 195- (1) When, upon an application made to it in this behalf or otherwise , any court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary- (a) Record a finding to that effect; (b) Make a complaint thereof in writing; (c) Send it to a Magistrate of the First Class having jurisdiction; (d) Take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) Bring over any person to appear and give evidence before such Magistrate. (2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under Crl. Pet. 258 of 2010 Page No. 16 sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of Section 195. "
22. If the provisions of Section 340 of the Code are carefully analyzed, it becomes clear that the Court is not bound to make a complaint as regards commission of an offence mentioned in Section 195(1) (b)(ii), for, the Court has to be of the view that it is expedient in the interest of justice to make complaint. The Constitution Bench, in Iqbal Singh Marwah (supra), has, therefore, held that the language of Section 340 shows that a Magistrate will lodge a complaint only if the interest of justice requires and not in every case. Before filing the complaint, observes the Supreme Court in Iqbal Singh Marwah (supra), the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences in Section 195(1)(b)(ii) and that this expediency will, normally, be judged by the Court by weighing not the magnitude of the injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, which the commission of offence may have upon administration of justice.
23. Considering the fact that, in the case at hand, the tenancy agreement, in question, was allegedly forged by the accused- petitioners and the same was, then, made the basis for recovery of money by instituting money suit, the embargo, which 195(1)(b)(ii) CrPC places on the powers of the Court to take cognizance of offence, under Section 468/471 IPC, did not apply to the facts of the present case. There was, therefore, no infirmity, legal or Crl. Pet. 258 of 2010 Page No. 17 factual, in taking of cognizance of the offence, under Section 468/ 471 IPC, by the Court below.
24. Lastly, relying upon the decision, in Chandrapal Singh and others vs. Maharaj Singh and another, reported in (1982) 1 SCC 466, it is submitted by Mr. Sharma, learned counsel for the accused-petitioners, that one of the issues, particularly, issue No. 4, which has been framed in the money suit, read as under:
"Whether the defendant obtained a loan of Rs. 20,00,000/- with interest @ 18% compounded monthly from the plaintiffs on the basis of the agreement for loan dated 02.11.2007 or whether it was an interest free refundable security against the tenancy ?"
25. Pointing out to the above issue, Mr. Sharma contends that since the civil Court will be entering into the question as to whether the tenancy agreement, in question, was or was not executed by the parties concerned, the subject-matter, involving the same question, cannot, at the same time, be made the basis of the trial of the accused-petitioners by the criminal Court.
26. While dealing with the above submission, made by Mr. Sharma, one has to recall the observations, made by the Supreme Court, in Iqbal Singh Marwah v. Meenakshi Marwah, reported in (2005) 4 SCC 370, wherein the Court has observed and laid down as follows:
"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be Crl. Pet. 258 of 2010 Page No. 18 given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras give a complete answer to the problem posed: (AIR p. 399, paras 15-16) "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in Crl. Pet. 258 of 2010 Page No. 19 this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis."
27. In Iqbal Singh Marwah (supra), while considering the contention that the Court should made an effort to avoid conflict of findings between the civil and criminal courts, the Supreme Court has pointed out that the standard of proof, required in the two proceedings, are entirely different inasmuch as civil cases are decided on the basis of preponderance of evidence, while, in a criminal case, the entire burden lies on the prosecution and proof beyond reasonable doubt has to been given. The Supreme Court has also pointed out that there is neither any statutory provision nor any legal principle that the findings, recorded in one proceeding, may be treated as final or binding in the other inasmuch as both the cases, civil and criminal, have to be decided on the basis of the evidence adduced therein, bearing in mind the standards of proof required in the two classes of cases, namely, civil and criminal.
28. From what have been observed, in Iqbal Singh Marwah (supra), it becomes clear that there is no legal impediment in proceeding with the complaint, in question, merely because one of the issues, framed in the money suit, which the accused- petitioners has instituted, involves a question, which has to be Crl. Pet. 258 of 2010 Page No. 20 answered by the criminal court as well and since the standards of proof in both the cases, civil and criminal, are materially different, no claim of prejudice can be made by the accused-petitioners and there is absolutely no reason for staying the proceedings of the complaint case at hand.
29. The reference made by Mr. Sharma to the case of Chandrapal Singh and others vs. Maharaj Singh and another, reported in (1982) 1 SCC 466, is wholly misplaced inasmuch as in Chandrapal Singh (supra), the categorical finding of the Supreme Court was that the embargo, imposed by 195(1)(b)(ii), was attracted to the facts of the case and the taking of cognizance was, therefore, bad in law. Consequently, observed the Supreme Court, in Chandrapal Singh (supra), allowing the complaint case to proceed would mean abuse of the process of the Court. Except the fact that the case of Chandrapal Singh (supra) also involved a dispute between the landlord and tenant, there is no similarity between the case at hand and the case of Chandrapal Singh (supra), particularly, when this Court has come to a categorical finding that there is no infirmity, legal or factual, in the taking of cognizance by the learned trial Court of offence under Section 468/471 IPC and there is also, in the light of the law laid down in Iqbal Singh Marwah (supra), no impediment, on the part of a criminal Court, in proceeding with a complaint case.
30. Because of what have been discussed and pointed out above, this Court does not find any merit in this application made under Section 482 CrPC. This application, therefore, fails and the same shall accordingly stand dismissed.
Crl. Pet. 258 of 2010 Page No. 21
31. Before parting with this criminal petition, made under Section 482 CrPC, it is, however, made clear that the learned trial Court shall proceed with the criminal case expeditiously and dispose of the same in accordance with law. In order to avoid any delay in disposal of the complaint case, the parties to the complaint case are hereby directed to appear in the court of the learned Sub- Divisional Judicial Magistrate No. 1, Kamrup, Guwahati, on 17.08.2012.
32. Send back, forthwith, the LCR with a copy of this judgment and order.
JUDGE rk Crl. Pet. 258 of 2010