Allahabad High Court
Vivek Shalya And Another vs State Of U.P. And 4 Others on 5 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:39280
Reserved On : 20.02.2024
Delivered On : 05.03.2024
Court No. - 92
Case :- APPLICATION U/S 482 No. - 40396 of 2016
Applicant :- Vivek Shalya And Another
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Kumar Anish
Counsel for Opposite Party :- G.A.,Bhawesh Pratap Singh,Jayendra Kumar Mishra
With
Case :- APPLICATION U/S 482 No. - 4026 of 2017
Applicant :- Satya Narayan Shalya And 3 Others
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Kumar Anish
Counsel for Opposite Party :- G.A.,Bhawesh Pratap Singh,Birendra Shanker Pandey,Jayendra Kumar Mishra,Vineet Kumar Singh
Hon'ble Prashant Kumar,J.
1. As both the applications under Section 482 CrPC are arising out of the same criminal proceedings, hence, are being heard and decided together.
2. Heard Shri Ameet Singh assisted by Shri Kumar Anish, learned counsel appearing on behalf of the applicants, Ms. Shazia Parveen, learned counsel appearing for respondent nos. 4 and 5, Shri Jayendra Kumar Mishra, learned counsel appearing for opposite party no.3, Shri Shashi Dhar Pandey, learned AGA for the State/opposite party nos. 1 & 2.
3. By means of the instant application filed under Section 482 CrPC, the applicants have prayed for quashing the proceedings of Case Crime No. 466 of 2016 under Sections 147, 148, 420, 467, 468, 471, 120-B IPC, Police Station- Tajganj, District- Agra and also to quash the charge sheet dated 26.10.2016 along with the cognizance taking order dated 28.11.2016 passed by the Additional Chief Judicial Magistrate-III, Agra.
FACTS OF THE CASE :
4. Heard learned counsel for the parties and perused the records.
5. That, late Roop Singh was owner of the land (Gata No. 232). After his death, the property devolved to his sons, however, his nephews, on the other hand, were claiming right over the property on the basis of an unregistered will-deed. After the death of Roop Singh, his sons applied for the mutation of their names, on which, an objection was filed by the opposite party. The sons of Roop Singh were in possession of the property. It was on 25.01.2000, the opposite party tried to dispossess the sons of Roop Singh from the said land, hence, a police report was lodged at that point of time. Thereafter, on 15.01.2001, the name of the sons of Roop Singh had been mutated in the revenue records by the orders of Tehsildar after rejecting the claim of the opposite party no. 3 who have making the claim on the basis of some unregistered will. After mutation, once again, the informant tried to dislodge the sons of Roop Singh from the said land. Accordingly, his son Kishan Kumar had filed a suit for permanent injunction being Suit No. 390 of 2002 in the Court of Civil Judge (J.D.), Agra. The suit was decreed in favour of sons of Roop Singh.
6. It is only on 07.08.2006, the sons of Roop Singh who was the owners and in possession of the land executed a registered sale-deed in the name of Smt. Usha Shalya (mother of the applicant) and Smt. Meenakshi (wife of applicant no.1). On 13.09.2007, the present buyers Smt. Usha Shalya and Smt. Meenakshi applied for mutation of their name on the basis of registered sale deed. The Tehsildar mutated their names in the revenue records.
7. The first informant filed a restoration application in the mutation proceedings against the order dated 13.09.2007, by which, the name of the present buyers namely Smt. Usha Shalya and Smt. Meenakshi was mutated. This application was dismissed vide order dated 26.12.2009. The first informant filed an appeal against this order which was also rejected. Thereafter, the first informant filed a writ petition bearing Writ-C No. 31232 of 2012 (Meenakshi Gupta & Anr. v. State of UP & Ors.), which is still pending and no interim order was passed in that petition.
8. Thereafter, Smt. Usha Shalya and Smt. Meenakshi applied for sanctioning of map for making a construction over the land after depositing the fees.
9. That, one of the sons of Roop Singh had lodged an FIR by moving an application under Section 156(3) CrPC against the first informant and his brothers for fabricating documents and will of his late father. This FIR was registered as Case Crime No. 109 of 2008 under Sections 420, 467, 468, 471 IPC. On 29.09.2009, after investigation, a charge-sheet was submitted against the first informant and his brothers in Case Crime No. 109/2008 lodged by Ashok Kumar son of Late Roop Singh. This charge-sheet was challenged by the first informant Satendra Singh & others by filing an application under Section 482 CrPC No. 15284/2010 but the same was dismissed by this Hon'ble Court.
10. Thereafter, on 11.01.2013, the first informant prepared a forged order allegedly passed by the Tehsildar, Agra, in which, it has been mentioned that one of the sons of late Roop Singh, namely, Kishan Kumar had accepted the genuineness of the unregistered will and requested that the name of Satendra Singh and others may be mutated in the revenue records.
11. When the applicant came to know about this fact, he immediately lodged an FIR against the first informant and his brothers giving rise to Case Crime No. 326 of 2013, under Sections 420, 467, 468 & 471 IPC. Thereafter, the first informant had filed second Application under Section 482 CrPC (being Application No. 29666/2011 for quashing of the charge-sheet in Case Crime No. 109 of 2008 and the same was also dismissed by this Court vide order dated 15.05.2015. It is worthwhile to mention here that even the first informant filed the second 482 application concealing the fact that the earlier 482Application had already been dismissed.
12. In the mutation proceedings, the appeal filed by the first informant was allowed and aggrieved against which, Smt. Usha Shalya and Smt. Meenakshi had filed a Writ-C No. 47287 of 2014 before this Court which is pending, and, the court has granted an interim relief, wherein, it was directed that no third party right was to be created over the land in dispute.
13. Learned counsel for the applicants submits that the dispute with regard to Gata No. 232 of Late Roop Singh is there in between the sons of Late Roop Singh on one hand and the first informant Satendra Singh and his brothers who are nephews of Late Roop Singh, who are claiming the land in dispute on the basis of unregistered will deed is on the other hand. The applicants are husband and son of the bona fide purchasers i.e. co-accused Smt. Usha Shalya and Smt. Meenakshi Shalya who had purchased the land through their owners whose names were there in revenue records.
GENESIS OF THE INSTANT APPLICATION :
14. After loosing the civil dispute and also facing a criminal trial for the alleged offences committed by opposite party no. 3, to put counter-pressure the opposite party no.3 had filed an application under Section 156(3) CrPC in the Court of Special Judicial Magistrate, Agra on 08.04.2016, in which, it was alleged that Smt. Usha Shalya and Smt. Meenakshi by means of a forged sale deed bought the land from the sons of Roop Singh. The Additional Chief Judicial Magistrate, Agra called a report from the concerned police station and without applying his judicial mind, directed the concerned police station to lodge an FIR. On the basis of this application, an FIR was registered on 07.05.2016. The allegation in the FIR was that the property of applicants (paternal uncle) was inherited by the applicants' father through a will. The opposite parties are accusing the applicants of committing fraud by fabricating sale-deed and coercing the applicants and their advocate.
15. After a detailed investigation, the Investigating Officer filed a charge-sheet on 26.10.2016 being charge-sheet no. 47 of 2009. The charge-sheet was filed on the basis of evidence collected, and the accused have been charged under Sections 420, 467, 468, 471 & 120-B IPC. The court concerned had taken cognizance and summoning order was passed on 28.11.2016. The applicants are husband and son of the bona fide purchaser i.e. co-accused Smt. Usha Shalya and Smt. Meenakshi Shalya, who had purchased the land, who were the owners and their names were on the revenue record. The applicants on behalf of the bona fide purchaser have challenged the entire proceedings in Case Crime No. 466 of 2006 by means of this instant application filed under Section 482 CrPC.
ARGUMENTS OF LEARNED COUNSEL FOR THE APPLICANTS :
16. Learned counsel for the applicant submitted that even assuming for the sake of argument that the allegations made in the FIR are true and the sale deed has been executed when the litigation in between both the parties were going on, no commission of any cognizance offence is made out. So far as the fabrication of any false document is concerned, no such averment has been made in the FIR as to what document has been forged and as to how it has been forged and by whom it has been forged and the FIR is completely silent on the aspect of the matter.
17. The IO had filed a charge-sheet in a very mechanical manner without even appreciating that there was a civil dispute between the parties and there was no criminality or fraud as alleged in the FIR being done by the bona fide purchasers.
18. Learned counsel for the applicants further submits that the instant matter was purely a civil dispute, wherein, the opposite party no.3 were claiming the land by way of unregistered will. However, they did not take any steps to get the will executed. They did not file any suit for specific performance or for execution of the will-deed. They had illegally tried to take possession of the land for which a police complaint was filed by the sons of Roop Singh, so the sons of Roop Singh filed a suit for injunction which was also decreed in their favour and had attained finality. After the bona fide purchasers or the family members of the applicants bought the land, they applied for mutation which was objected by opposite party and after, their objection was rejected. The land was mutated in their names. An appeal was filed by the opposite party no. 3 against the rejection of the application and the proceeding arises out of this mutation is already under challenge and is already pending in this court.
19. There is nothing on record to show that the duly registered sale deed has ever been executed and the entire proceedings of claiming land through an alleged sale-deed is purely civil in nature.
20. To buttress his arguments, the applicants have placed reliance upon a judgement passed by the Hon'ble Supreme Court in the matter of Mohd. Ibrahim & Ors. v. State of Bihar & Anr. (SC) Law Finder Doc ID # 202810, in which, it is held as under :
"7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs. NEPC India Ltd. [2006 (6) SCC 736]. Let us examine the matter keeping the said principles in mind.
11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus :
"The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617."
21. It was further argued that the FIR filed by the opposite party no. 2 was malicious as family members of the applicants had bought this land by way of registered sale deed in the year 2016. The first informant had lost his case in mutation proceedings and also before the civil court. The suit for injunction had been decreed by the civil court in favour of sons of Roop Singh. The FIR filed against the applicants was after a delay of more than ten years. To buttress his arguments, the learned counsel for the applicants relies on a judgement passed by the Hon'ble Supreme Court in the matter of Deepak Kumar Shrivas & Anr. v. State of Chhattisgarh & Ors.1 The relevant portion of this judgement is as follows :-
"12. According to the allegations made in the FIR, the job was to be provided by the appellant within three months of April, 2019 i.e. by July, 2019. However, the respondent no.6 did not take any action for a period of three years till July, 2022 when the FIR in question was lodged. Thus, the FIR suffers from a serious delay of three years which is totally unexplained.
16. For all the reasons recorded above, we are of the view that such criminal prosecution should not be allowed to continue where the object to lodge the FIR is not for criminal prosecution and for punishing the offender for the offence committed but for recovery of money under coercion and pressure and also for all the other reasons stipulated above."
22. The entire criminal proceeding initiated by opposite party no 3, is malicious and the FIR is highly belated. It was after ten years of the execution of the will-deed, and it is not the case where the opposite party no. 3 was not aware of the registered sale-deed. In an FIR lodged by Ashok Kumar S/o Roop Singh (vendor) in Case Crime No. 109/2008 under Sections 420, 467, 468, 471 IPC and their Applications under Section 482 Cr.P.C. filed before this Hon'ble Court for quashing of charge sheet has also been dismissed. They have also been charge-sheeted in Case Crime No. 326 of 2013 under Section 420, 467, 468, 470 and 471 I.P.C. on the basis of the FIR lodged by applicant No. 1 and the FIR of the present case has been lodged by them is a counterblast to that FIR, in order to make a defence in the criminal case lodge by applicant No. 1.
23. He further submitted that the present criminal proceedings initiated by the first informant is a pure abuse of process of law. The first information report filed by informant is a tactics to pressurize and harass the applicants rather than seeking a genuine remedy. The applicants contend that the allegations raised in the first information report (F.I.R) are essentially a subject matter of ongoing civil litigation in between the sons and legal heirs on one hand and the first informant and his brothers on the other hand, which is going on since 2001 before various authorities and courts and also before this Court. The initiation of criminal proceedings by registration of the first information report that too against applicants who are family members of the subsequent bona fide purchasers of the properties in dispute is contrary to the principles established by the Hon'ble Apex Court.
24. He further placed reliance upon the judgement passed by the Hon'ble Supreme Court in the matter of Deepak Gaba & others v. State of Uttar Pradesh & Another,2 in which, it is held as under :
"21. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by respondent no. 2 - complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420, and 471 of the IPC, 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 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 Limited and Others v. K.M. Johny, 2011 (13) SCC 412, as it refers to earlier case laws in copious detail. In Thermax Limited and Others (Supra), it was pointed 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. 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 scrutinize 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 Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 610; Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420). 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.
24. 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 Corporation Limited (Supra); Mehmood Ul Rehman (Supra); R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335). 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 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."
25. He further relies on a judgment passed by the Hon'ble Supreme Court in the matter of Randheer Singh v. The State of Uttar Pradesh & Ors.3
26. Shri S.D. Pandey, learned AGA for the State submits that an FIR was lodged by the opposite party no.3 against the applicants and other co-accused, in which, it was alleged that the Tau of informant had made an unregistered will in favour of his father Mahendra Singh and that property was sold to the Usha Shalya and Meenakshi Gupta on 07.08.2006 but the name of the deceased sons were came to be recorded in the revenue records on 16.08.2007 after 18 years. That was the basis for the informant to object that the sale-deed was not done by these persons and claimed that the sale-deed itself was a fraudulent document and Smt. Usha Shalya and Smt. Meenakshi Gupta had fraudulently got the sale-deed executed in their favour.
27. Learned counsel appearing for opposite party no.3 submits that the suit was pending and during the pendency of the suit, respondent nos. 4 & 5 could not have sold it to the applicants. On being asked, was there any injunction in the matter, the answer was in negative. However, the counsel for the applicants submits that the complainant has already filed a civil suit for cancellation of sale-deed being Civil Suit No. 642 of 2010 and the same is pending.
CONCLUSION
28. In view of the aforesaid facts and circumstances, it is clear that the opposite party no.3 had been filing cases in various courts. It is clear that the original landholder was Roop Singh and after his death, his son inherited the property and their names were mutated in the revenue records. The opposite parties had on the basis of some alleged wills tried to get their names mutated in the revenue records but the Tehsildar after looking into the documents rejected the application and the names of sons of Roop Singh were recorded in the record. It is apparent that the opposite party no.3 even tried to interfere in the peaceful possession of the property of sons of Roop Singh and hence, a suit for permanent injunction was filed which was ultimately decreed in favour of sons of Roop Singh. The opposite party no.3 had also tried to interfere in the peaceful possession of the sons of Roop Singh, so a police compliant was filed way-back in January, 2000. The sons of Roop Singh, who were the owners of the property had executed a sale deed in favour of Smt. Usha Shalya and Smt. Meenakshi Shalya and their names were also mutated in the revenue record. When they applied for sanction of map for construction of a house, opposite party no. 3 tried to interfere in their possession. They filed an application for mutation which was rejected and an appeal was also filed which was also dismissed, against which, they filed writ petition which is just pending.
29. Having lost the civil dispute, the opposite party no. 3 chose to file an application under Section 156(3) CrPC alleging that bona fide purchaser had purchased the property by means of a forged sale deed. The court concerned without even looking into the veracity of the cases, in a very mechanical manner and without any application of mind, had directed for investigation, and an FIR was lodged. Surprisingly, the Investigating Officer without looking into the previous litigation had filed a charge-sheet and similarly, cognizance has been taken by the court without even appreciating the records.
30. The applicants have challenged the entire criminal proceedings initiated by the opposite party no. 3 through an application under Section 156(3) CrPC. It is clear that the sale deed executed in favour of the applicants were a bona fide sale-deed and, in case, opposite party no. 3 had any right, title or they were aggrieved by the sale deed, they ought to have filed a suit for cancellation of sale deed but instead of filing the same, they preferred to file the instant criminal proceedings. The entire criminal proceedings initiated against the applicants were frivolous, malicious and only with intent to pressurise the applicants.
31. It is impossible to fathom how the investigating authorities could even have been prima facie satisfied that the deed had been forged or fabricated or was fraudulent without even examining the apparent executant Bela Rani, who has not even been cited as a witness.
32. The Hon'ble Supreme Court in the matter of Mohd. Ibrahim v. State of Bihar, 2009 (8) SCC 751 has held as follows :-
"19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
(ii) 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).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.
A clarification
23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.
24. The term "fraud" is not defined in the Code. The dictionary definition of "fraud" is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines "fraud" with reference to a party to a contract.
27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:
"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'."
33. The Hon'ble Supreme Court in the matter of Paramjeet Batra v. State of Uttarakhand & others, reported in 2013 (11) SCC 673, has held as follows :
"A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
34. The Hon'ble Supreme Court in the matter of Madhavrao Jiwajirao Scindia v. Shambhajirao Chandrojirao Agre, (1998) 1 SCC 692, has held that :
"We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of sale-deeds in question."
35. While filing the application, the opposite party no. 3 concealed the fact about the previous ongoing litigation. The Hon'ble Supreme Court in the matter of State of Haryana v. Bhajan Lal, 1992 (Sup1) SCC 335, has laid down the guidelines in which, the proceedings under Section 482 CrPC can be quashed. The operative portion of the same is as follows :
" (i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides 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."
36. In the instant matter, the perusal of the record shows that the instant criminal proceedings does not disclose commission of any offence or make out a case against the applicants. The allegations levelled against the applicants, in the application which was converted into an FIR, even if it is taken on the face value and accepted in its entirety do not constitute or make out a case against the accused.
37. The instant criminal proceedings is manifestly attended with mala fides and has been initiated maliciously with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudges.
38. Accordingly, the instant applications under Section 482 CrPC are allowed and all proceedings arises out of the same are hereby quashed.
Order Date :- 05.03.2024 Rama Kant